T.R. and U.S. Postal Service, Concord Post Office, Concord, NH (Board decision, February 16, 2023)

ECAB remand decision. The Board set aside OWCP's August 13, 2021 denial and returned the claim for combined review with an earlier left knee injury file. Whether the occupational disease claim is 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 clerk claimed that his work caused left knee osteoarthritis. OWCP denied the occupational disease claim after relying on an impartial medical opinion. The Board found that the record before it lacked the file for an earlier claimed left knee injury. Because proper review required the related files, it set aside the denial and directed OWCP to combine the records. OWCP must then develop the case as needed and issue a new decision.

Decision snapshot

• Authority: FECA Procedure Manual, Chapter 2.400.8c.
• Outcome: August 13, 2021 denial set aside; occupational disease claim remanded.
• Key point: OWCP must combine related injury files when full adjudication requires evidence from both.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.R., Appellant
)
)
and ) Docket No. 22-0287
) Issued: February 16, 2023
U.S. POSTAL SERVICE, CONCORD POST
)
OFFICE, Concord, NH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Kelley M. Greski, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On December 16, 2021 appellant, through counsel, filed a timely appeal from an August 13, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 22-0287.2

On October 18, 2018 appellant then a 62-year-old clerk filed an occupational disease claim (Form CA-2) alleging that he developed osteoarthritis of the left knee due to factors of his federal employment. He noted that he first became aware of his condition and realized its relation to his federal employment on May 25, 2018. Appellant did not stop work. OWCP assigned the claim OWCP File No. xxxxxx247.

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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In light of the Board’s disposition of this case, the request for oral argument is denied.

In an October 26, 2017 report, Dr. Stephen Fox, an emergency medicine specialist, noted that appellant had been treated in 2014 and 2015 for an employment-related left knee injury.3

By decision dated April 17, 2019, OWCP denied appellant’s occupational disease claim finding that the medical evidence of record was insufficient to establish causal relationship between his diagnosed condition and the accepted factors of his federal employment.

On April 25, 2019 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on August 29, 2019.

By decision dated November 12, 2019, OWCP’s hearing representative set aside the April 17, 2019 decision, finding that a conflict of medical opinion evidence existed with regard to the issue of causal relationship. The hearing representative remanded the case for OWCP to refer appellant for an impartial medical examination.

Following further development, by decision dated March 11, 2020, OWCP denied appellant’s occupational disease claim. It accorded the special weight of the medical evidence to the February 20, 2020 opinion of the impartial medical examiner.

On March 24, 2020 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on July 9, 2020.

By decision dated August 28, 2020, OWCP’s hearing representative affirmed OWCP’s March 11, 2020 decision.

On October 23, 2020 and June 4, 2021 appellant, through counsel, requested reconsideration and submitted additional medical evidence.

By decisions dated January 21 and August 13, 2021, OWCP denied modification of its prior decision.

The Board, having duly considered the 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.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.

In the present claim, appellant alleged injuries to his left knee. He has a prior claim for a traumatic left knee injury under OWCP File No. xxxxxx340. However, evidence pertaining to that file is not part of the case record presented before the Board. For a full and fair adjudication, the case must be remanded to OWCP to administratively combine the current case record with

3
The record reflects that appellant previously filed a September 19, 2014 traumatic injury claim (Form CA-1) alleging a left knee sprain, under OWCP File No. xxxxxx340.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000); M.M., Docket No. 21-1323 (issued April 27, 2022); T.D., Docket No. 20-1119 (issued January 29, 2021); R.R., Docket No. 19-0368 (issued November 26, 2019).

2

OWCP File No. xxxxxx340, so it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s current occupational disease claim. Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the August 13, 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: February 16, 2023
Washington, DC

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

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

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

3