S.M. and U.S. Postal Service, Hampton Bays Post Office, Hampton Bays, NY (Board decision, October 28, 2021)

ECAB final decision. The Board set aside OWCP's decision and directed it to combine related injury files before deciding S.M.'s request for right elbow surgery. 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.M., a postal letter carrier, requested authorization for additional right elbow surgery. The record showed an earlier accepted right elbow claim whose evidence was absent from the current file. The Board found that OWCP needed to combine that file with the present and other related files for a fair decision. It set aside OWCP's refusal to reconsider and returned the surgery request for review on the combined record.

Decision snapshot

• Authority: FECA Procedure Manual, Chapter 2.400.8(c), on combining related claim files.
• Outcome: Decision set aside; related elbow files to be combined.
• Key point: OWCP needed the earlier accepted elbow claim record to decide the surgery request.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.M., Appellant
)
)
and ) Docket No. 21-0635
) Issued: October 28, 2021
U.S. POSTAL SERVICE, HAMPTON BAYS
)
POST OFFICE, Hampton Bays, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
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 15, 2021 appellant filed a timely appeal from a November 24, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards docketed the appeal as No. 21-0635.

On May 9, 2016 appellant filed a notice of recurrence (Form CA-2a) alleging that on January 29, 2016 she sustained a recurrence of disability due to her February 20, 2015 employment injury under OWCP File No. xxxxxx624.2 She noted that, following her employment injury, she

1
The Board notes that following the November 24, 2020 decision, OWCP received additional evidence. 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. 2 On February 21, 2015 appellant, then a 47-year-old city letter carrier, filed a traumatic injury claim (Form CA-1) alleging on February 20, 2015 that she slipped and fell injuring her head, neck, right shoulder, right elbow, and lower back while in the performance of duty. She stopped work on February 20, 2015. OWCP assigned the claim OWCP File No. xxxxxx624 and accepted it for lumbar and cervical strains. Appellant returned to part-time limited-duty on August 1, 2015 working two to four hours a day. On May 5, 2016 OWCP expanded the acceptance of appellant’s claim to include cervical disc disorder with radiculopathy; lumbar disc disorders with radiculopathy; and meralgia paresthetica, left lower limb. had returned to work four hours per day, when available, casing mail. Appellant alleged that her right elbow condition worsened due to the repetitive motion of casing mail. She stopped work on January 29, 2016. OWCP developed this claim as a new occupational disease claim under OWCP File No. xxxxxx815 and accepted it for right elbow lateral epicondylitis, right elbow medial epicondylitis, and lesion of the ulnar nerve right upper extremity. It paid appellant wage-loss compensation on the periodic rolls effective April 30, 2017.

On February 28, 2017 appellant underwent right lateral epicondylitis common extensor repair.

On September 5, 2018 appellant requested authorization for right elbow surgery to revise the ulnar nerve at the elbow and incision of the tendon sheath.

In a September 5, 2018 development letter, OWCP requested additional medical evidence establishing that the requested revision surgery for the right ulnar nerve surgery was medically necessary due to appellant’s accepted employment injuries.

By decision dated February 20, 2019, OWCP denied appellant’s request for additional revision of the ulnar nerve lesion, finding that it was not medically warranted.

On June 13, 2019 appellant requested reconsideration. She noted that on October 9, 2009 she sustained right medial epicondylitis while in the performance of duty, which had been accepted under OWCP File No. xxxxxx317.

By decision dated October 28, 2019, OWCP denied modification of its prior decision.

On October 20, 2020 appellant again requested reconsideration.

By decision dated November 24, 2020, OWCP denied appellant’s request for reconsideration, pursuant to 5 U.S.C. § 8128(a).

The Board, having duly considered this 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.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 In the present claim, appellant alleged a right elbow condition. OWCP previously accepted a 2009 claim for right medial epicondylitis under OWCP File No. xxxxxx317. However, evidence pertaining to OWCP File No. xxxxxx317 is not part of the case record presented before the Board. For a full and fair adjudication, the case shall be remanded to OWCP to administratively combine OWCP File No.

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000); T.D., Docket No. 20-1119 (issued January 29, 2021); R.R., Docket No. 19-0368 (issued November 26, 2019). 4 Id.; M.B., Docket No. 20-1175 (issued December 31, 2020); L.M., Docket No. 19-1490 (issued January 29, 2020).

2 xxxxxx317 with File No. xxxxxx815 and master File No. xxxxxx624, so it can consider all relevant evidence in adjudicating appellant’s request for authorization for right elbow surgery.5 Following this and other such further development as deemed necessary, OWCP shall issue an appropriate decision. Accordingly,

IT IS HEREBY ORDERED THAT the November 24, 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: October 28, 2021
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

5
A.Y., Docket No. 20-1334 (issued March 29, 2021).

3