E.P. and U.S. Postal Service, Processing & Distribution Center, Hamilton, NJ (Board decision, October 18, 2022)

ECAB remand decision. The Board set aside OWCP's February 8, 2021 denial and returned the claim for factual findings and a statement of reasons. Whether the claimed conditions are 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 postal mail processor sought compensation for neck, shoulder, and hand conditions she attributed to repeated lifting and reaching. OWCP denied the claim and later refused to change its decision without explaining its assessment of evidence in her combined claim files. The Board held that OWCP had not supplied the findings and reasons required for a decision. It set aside the denial and directed OWCP to review the evidence, explain its findings, and issue a new decision. The Board did not decide whether the conditions were caused by her work.

Decision snapshot

• Authority: Findings and reasons required by 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126.
• Outcome: Denial set aside; claim remanded for an explained decision.
• Key point: OWCP had to explain its treatment of evidence from the combined claim files.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

_______
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E.P., Appellant
)
)
and ) Docket No. 21-1154
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Issued: October 18, 2022
U.S. POSTAL SERVICE, PROCESSING & )
DISTRIBUTION CENTER, Hamilton, NJ, )
Employer
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_________ )

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

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

On July 26, 2021 appellant, through counsel, filed a timely appeal from a February 8, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 21-1154.

On September 25, 2019 appellant, then a 68-year-old mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed neck, bilateral shoulder conditions and bilateral carpal tunnel syndrome due to factors of her federal employment, including significant lifting above the shoulders, lifting trays and reaching to key mail. She noted that she first became

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. aware of her conditions on September 23, 2016 and realized their relation to her federal employment on September 9, 2019. OWCP assigned the claim File No. xxxxxx177.2

The medical evidence of record included diagnostic reports from 2016 and a September 9, 2019 report from Dr. Laura E. Ross, an osteopath and orthopedic surgeon. Dr. Ross provided an impression of exacerbation of cervical spine degenerative disc disease, high -grade partial tear of the subscapularis tendon of the right shoulder, post-traumatic acromioclavicular joint arthrosis with impingement syndrome of the bilateral shoulders, and moderate right carpal tunnel syndrome, all of which she opined were causally related to appellant’s work duties as a mail processing clerk over a course of 25 years. Dr. Ross concluded that appellant sustained a high-grade partial tear of the subscapularis tendon of the right shoulder as a direct result of the repetitive stress required of her position. She also indicated that surgery was needed.

By decision dated March 12, 2020, OWCP denied the claim, finding that the evidence of record was insufficient to establish a medical condition causally related to the accepted factors of her federal employment.

By letter dated March 26, 2020, appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. During the telephonic hearing, held on July 7, 2020, counsel placed emphasis on the significance of Dr. Ross’ September 9, 2019 report.

By decision dated August 26, 2020, OWCP’s hearing representative affirmed OWCP’s March 12, 2020 decision.

On August 28, 2020 OWCP administratively combined the current claim with OWCP File No. xxxxxx594, with File No. xxxxxx594 serving as the master file.

On November 10, 2020 appellant, through counsel, requested reconsideration.

In an October 30, 2020 report, Dr. Ross noted appellant’s work history beginning in 1993.
She concluded that, based on the history provided regarding appellant’s work-related duties, the cumulative effects of her duties directly resulted in the repetitive injuries that she sustained.

By decision dated February 8, 2021, OWCP summarily denied modification of its August 26, 2020 decision.

The Board, having duly considered this matter, concludes that this case is not in posture for decision.

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an award for or against payment of compensation.3 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a statement

2
Appellant has a prior claim for an occupational disease under OWCP File No. xxxxxx594, alleging that she sustained a right rotator cuff tear to due factors of her federal employment as of September 23, 2016. 3 5 U.S.C. § 8124(a).

2 of reasons.4 As well, OWCP’s procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the claim and the kind of evidence which would overcome it. 5

In the February 8, 2021 decision, OWCP summarily denied modification of its August 26, 2020 decision without explaining its findings regarding the medical evidence submitted in OWCP File Nos. xxxxxxx177 and xxxxxx594 relevant to appellant’s current claim. The Board, therefore, finds that OWCP did not discharge its responsibility to set forth findings of fact and a clear statement of reasons explaining the disposition so that appellant could understand the basis for the decision.6 This case must, therefore, be remanded to OWCP to provide detailed reasons for accepting or rejecting the claim.

Accordingly, the Board will set aside the February 8, 2021 decision and remand the case for OWCP to review the evidence and argument in support of appellant’s reconsideration request, make findings of fact, and provide a statement of reasons for its decision, pursuant to the standards set forth in section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126. After any further development as OWCP deems necessary, it shall issue a de novo decision.

4
20 C.F.R. § 10.126.
5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).
6
See D.M., Docket No. 22-0329 (issued July 1, 2022); A.J., Docket No. 21-0944 (issued March 23, 2022); S.S., Docket No. 20-1351 (issued February 15, 2022).

3
 IT IS HEREBY ORDERED THAT the February 8, 2021 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 18, 2022
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

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

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

4