S.W. and Department of Veterans Affairs, John J. Pershing VA Medical Center, Poplar Bluff, MO (Board decision, December 2, 2022)

ECAB remand decision. The Board set aside OWCP's March 29 and September 15, 2021 decisions and directed OWCP to combine three related claim files before further development and a de novo decision. Whether the reported 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

S.W., a medical technologist at a VA medical center, filed related claims involving reported mold exposure and physical and emotional symptoms. OWCP had denied the occupational-disease claim and later refused to change that decision. The Board found that three related claim files needed to be combined so OWCP could review all relevant evidence together. It set aside two OWCP decisions and ordered a new decision after the files are combined. The Board did not decide whether the reported conditions were caused by work.

Decision snapshot

• Authority: FECA claim-file combination procedure cited by the Board.
• Outcome: Two OWCP decisions set aside; three related files to be combined and decided anew.
• Key point: Related claim files needed combined review before OWCP decided the occupational-disease claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.W., Appellant
)
)
and ) Docket No. 21-1395
) Issued: December 2, 2022
DEPARTMENT OF VETERANS AFFAIRS,
)
JOHN J. PERSHING VA MEDICAL CENTER,
)
Poplar Bluff, MO, 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, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

On September 22, 2021 appellant filed a timely appeal from March 29 and September 15, 2021 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-1395.

On January 14, 2019 appellant, then a 47-year-old medical technologist, filed an occupational disease claim (Form CA-2) alleging that he sustained an allergic reaction, shortness of breath, confusion, fatigue, and blurred vision causally related to mold exposure in the course of his federal employment. OWCP assigned the claim OWCP File No. xxxxxx158.

On January 17, 2019 appellant filed a traumatic injury claim (Form CA-1) alleging that on January 14, 2019 he had difficulty breathing and experienced swelling of the brain and body when he was exposed to mold at work while in the performance of duty. OWCP assigned this claim OWCP File No. xxxxxx215.

On March 5, 2019 appellant filed an occupational disease claim (Form CA-2) alleging that he sustained an emotional condition due to factors of his federal employment, specifically, harassment by coworkers, and disciplinary actions by supervisors in relation to his complaints of mold exposure. He noted that he first became aware of the claimed condition and its relation to his federal employment on November 14, 2014. In associated statements, appellant attributed his condition to coworkers A.O. and P.C. swearing at him during training, a pattern of discrimination, disparate treatment, and hostility by supervisor B.N. on the basis of disability related to a mold allergy, being denied reasonable accommodations during mold remediation, frustration over not being able to meet the requirements of his position, and discrimination on the basis of sex. (RD

By decision dated March 18, 2019, OWCP denied appellant’s occupational disease claim in OWCP File No. xxxxxx158, finding that the medical evidence of record was insufficient to establish a medical condition causally related to the accepted employment factors of his federal employment. By decisions dated June 27 and September 27, 2019, February 26, 2020, and March 29 and September 15, 2021, OWCP denied modification of its prior merit decisions. In its February 26, 2020 decision, in OWCP File No. xxxxxx158, OWCP noted that it had reviewed the evidence in OWCP File No. xxxxxx215.

The Board has duly considered this matter and concludes that this case is not in posture for decision. OWCP’s procedures provide that cases should be administratively combined when a new injury is reported for an employee who previously filed a claim for a similar injury and further indicates that the cases should be administratively combined as soon as the need to do so becomes apparent.1 As appellant’s claims in OWCP File Nos. xxxxxx158, xxxxxx215, xxxxxx970 all involve appellant’s complaints of exposure of mold, the claims shall be administratively combined for a full and fair adjudication of appellant’s present claim. This will allow OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s current occupational injury claim.

The case shall, therefore, be remanded for OWCP to administratively combine OWCP File Nos. xxxxxx158, xxxxxx215 and xxxxxx970. Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision.

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000); see R.R., Docket No. 20-0911 (issued October 30, 2020); T.M., Docket Nos. 09-1090 and 09-2226 (issued March 8, 2010).

2
 IT IS HEREBY ORDERED THAT the March 29 and September 15, 2021 decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: December 2, 2022
Washington, DC

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

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

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

3