M.S. and U.S. Postal Service, Roger P. McAuliffe Post Office, Chicago, IL (Board decision, October 18, 2022)

ECAB remand decision. The Board set aside OWCP's February 9, 2021 decision and directed it to combine two left shoulder claim files before issuing a new decision. Entitlement to wage-loss compensation 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 postal carrier sought wage-loss compensation after he stopped work because of left shoulder problems. OWCP denied his claim for a recurrence of disability linked to a 2018 injury. The record also included a separate 2019 claim involving the same shoulder. The Board found that OWCP needed both files for a full and fair review. It set aside the denial and directed OWCP to combine the files, develop the claim as needed, and issue a new decision.

Decision snapshot

• Authority: OWCP's file management procedure calls for combining claims when correct adjudication depends on related files.
• Outcome: February 9, 2021 denial set aside; left shoulder claim files to be combined and a new decision issued.
• Key point: The recurrence claim could not be fully decided without the separate file for the later left shoulder injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.S., Appellant
)
)
and ) Docket No. 21-0769
) Issued: October 18, 2022
U.S. POSTAL SERVICE, ROGER P.
)
MCAULIFFE POST OFFICE, Chicago, 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:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

On April 27, 2021 appellant, through counsel, filed a timely appeal from a February 9, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as Docket No. 21-0769.

On January 8, 2018 appellant, then a 59-year-old carrier technician, filed a traumatic injury claim (Form CA-1) alleging that on January 8, 2018 he sustained a contusion/bruise with the skin intact on his left shoulder when he slipped on ice while in the performance duty. He stopped work on the date of injury and returned to work on January 10, 2018. OWCP assigned that claim OWCP File No. xxxxxx090 and initially accepted it for left shoulder rotator cuff strain. It later expanded the accepted conditions to include complete rotator cuff tear and impingement syndrome of the left shoulder, and sprain of the left acromioclavicular (AC) joint. On May 30, 2018 appellant underwent authorized left shoulder arthroscopic surgery. OWCP paid him wage -loss

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. compensation for disability from work on the supplemental rolls beginning March 5, 2018 and the periodic rolls commencing April 1, 2018.

Subsequently, appellant filed a new traumatic injury claim under OWCP File No. xxxxxx842 alleging that on April 5, 2019 he sustained a left shoulder injury when he got out of a defective chair while in the performance of duty.

Under the present claim, assigned OWCP File No. xxxxxx090, appellant returned to a full- time, modified city carrier position on March 20, 2019.

Appellant stopped work on December 14, 2019. He subsequently filed claims for wage- loss compensation (Form CA-7) for disability from work commencing December 14, 2019.

Appellant submitted medical evidence from Dr. Gregory Primus, an attending Board- certified orthopedic surgeon. In a December 13, 2019 progress note, Dr. Primus noted that appellant presented for a follow-up evaluation status post his authorized May 30, 2018 arthroscopic left shoulder rotator cuff repair. Appellant informed Dr. Primus that his surgery was related to his January 8, 2018 employment injury and a retear on April 5, 2019. He indicated that, soon after his return to full-duty work, he experienced left shoulder pain when he pushed himself up from sitting in a low chair with his left shoulder a few times at work. Appellant denied having a new injury. Dr. Primus provided assessments that included, inter alia, anterior soft tissue impingement; complete rotator cuff tear or rupture of the left shoulder, not specified as traumatic; and sprain of the left ACL joint, initial encounter. He noted a need for left shoulder revision of the rotator cuff repair with possible reconstruction with dermal allograft. Dr. Primus opined that, based on appellant’s history, and his review of pertinent records and examination findings, appellant’s injuries were causally and directly related to his work injury. In a work duty status report (Form CA-17) of even date, he noted a date of injury as January 8, 2018 and advised that appellant was unfit for duty. In a work status and recommendations fo rm also of even date, Dr. Primus reported a date of injury of July 16, 2017 and diagnosed status post arthroscopic left shoulder rotator cuff repair. He advised that the diagnosed condition was related to employment and placed appellant off work until his next appointment in four weeks.

OWCP, in a development letter dated January 9, 2020, provided a definition of a recurrence of disability. It advised appellant of the factual and medical evidence necessary to establish his claim, provided a questionnaire for his completion, and afforded him 30 days to submit additional evidence.

OWCP received additional medical evidence, including progress notes dated November 15, 2019 and January 24 and February 17, 2020 from Dr. Primus who reiterated appellant’s history of left shoulder arthroscopic surgery due to appellant’s January 8, 2018 employment injury and reinjury on April 5, 2019, and his prior assessments of anterior soft tissue impingement; complete rotator cuff tear or rupture of the left shoulder, not specified as traumatic; and sprain of the left ACL joint, initial encounter, recommendation of left shoulder revision surgery, and opinion that appellant’s conditions were causally and directly related to his work injury. In a November 15, 2019 work status and recommendations form, he continued to advise that appellant’s diagnosis of status post arthroscopic left shoulder rotator cuff repair was related to his employment, and appellant was unable to work until his next appointment in four weeks and required left shoulder revision surgery. In a February 17, 2020 Form CA-17, Dr. Primus again advised that appellant was unable to work.

2
 By decision dated March 5, 2020, OWCP denied appellant’s claim for a recurrence of total disability commencing December 14, 2019 causally related to his accepted January 8, 2018 employment injury. It found that he had not submitted sufficient medical evidence to establish a spontaneous material change in the accepted January 8, 2018 employment injury, without an intervening cause. OWCP further found that appellant had not demonstrated that the employing establishment withdrew his limited-duty assignment such that he sustained a recurrence of total disability commencing December 14, 2019.

On March 24, 2020 appellant, through counsel, requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review.

OWCP received additional progress notes dated May 17, June 14, and July 5, 2019 and September 11, 2020 from Dr. Primus in which he restated appellant’s history of injury on January 8, 2018 and April 5, 2019, and his left shoulder assessments and opinion on causal relationship. In a September 11, 2020 work status and recommendations form, he noted a date of injury of January 8, 2018 and diagnosed impingement with AC joint arthrosis. Dr. Primus advised that the diagnosed condition was related to employment and placed appellant off work until his next appointment in four weeks.

By decision dated October 1, 2020, OWCP’s hearing representative affirmed the March 5, 2020 decision, finding no rationalized medical opinion evidence supporting appellant’s claim for a recurrence of disability on or after December 14, 2019, causally related to his January 8, 2018 employment injury.

OWCP received additional medical evidence, including an October 29, 2020 progress note in which Dr. Dore E. Robinson, a family practitioner and an orthopedic surgeon, indicated that appellant presented for evaluation of his left knee pain due to his January 8, 2018 employment injury and a prior “July 15, 2015” employment injury.2 Dr. Robinson diagnosed left knee unilateral primary osteoarthritis. Additionally, she noted that on April 5, 2019 appellant felt immediate sharp pain in his left shoulder when he used his shoulders to push himself up out of a low broken chair. Dr. Robinson opined that this reaggravation of his January 8, 2018 employment injury caused his current conditions, a retorn rotator cuff and pain and weakness of the left shoulder.

On November 11, 2020 appellant, through counsel, requested reconsideration of the October 1, 2020 decision.

OWCP thereafter continued to receive medical evidence. In an additional progress note dated December 3, 2020, Dr. Robinson reiterated her prior opinion that the April 5, 2019 employment injury reaggravated appellant’s January 8, 2018 employment injury and caused his current conditions of a retorn rotator cuff and pain and weakness of the left shoulder.

In a February 9, 2021 decision, OWCP denied modification of the October 1, 2020 decision.

2
Appellant filed a claim under OWCP File No. xxxxxx644, for a traumatic injury sustained on July 16, 2015.
OWCP accepted the claim for left knee medial meniscus tear for which appellant underwent left knee surgery on June 17, 2016.

3
 The Board has duly considered this matter and finds that this case is not in posture for decision. OWCP’s procedures provide that cases should be administratively combined when correct adjudication depends on cross-referencing between files and where two or more injuries occur to the same part of the body. 3 As the instant claim under OWCP File No. xxxxxx090 and the claim under OWCP File No. xxxxxx842 both involve appellant’s left shoulder, the Board finds that they must be administratively combined for a full and fair adjudication. 4 This will allow OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s recurrence of disability claim. 5

Accordingly, the Board will remand the case to OWCP to administratively combine OWCP File Nos. xxxxxx090 and xxxxxx842. Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the February 9, 2021 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: October 18, 2022
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).
4
See Order Remanding Case, A.K., 20-1491 (issued March 22, 2021); Order Remanding Case, L.E., Docket No.
20-1178 (issued March 3, 2021); Order Remanding Case, K.F., Docket No. 19-0554 (issued October 21, 2019). 5 Id.

4