D.W. and U.S. Postal Service, Post Office, Struthers, OH (Board decision, September 13, 2023)

ECAB remand decision. The Board set aside OWCP’s May 23, 2022 denial of a right foot claim and returned it for combined review with an earlier accepted right foot injury. Entitlement 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). This remand does not resolve benefits.

Plain-English summary

A postal carrier reported a new right foot injury while descending steps. He had an earlier accepted right foot fracture claim. OWCP denied the newer claim without combining the two files. The Board ordered combined review and a new decision based on both records.

Decision snapshot

• Authority: FECA and OWCP procedures for related injury files.
• Outcome: Right foot claim denial set aside; files combined on remand.
• Key point: Related injuries to the same foot require coordinated review when their evidence overlaps.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.W., Appellant
)
)
and ) Docket No. 22-0948
)
Issued: September 13, 2023
U.S. POSTAL SERVICE, POST OFFICE, )
Struthers, OH, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, 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 JANICE B. ASKIN, Judge

On June 7, 2022 appellant filed a timely appeal from a May 23, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 22-0948.

On September 28, 2019 appellant, then a 59-year-old city carrier, filed a traumatic injury claim (Form CA-1) alleging that on August 26, 2019 he injured his right foot when descending steps while in the performance of duty.2 He stopped work on that date.

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 OWCP assigned the present claim OWCP File No. xxxxxx661. Appellant has a previously accepted traumatic injury claim for an October 1, 2014 contusion and fracture of the closed metatarsal bones, right foot, under OWCP File No. xxxxxx223. His claims have not been administratively combined by OWCP.
By decision dated November 22, 2019, OWCP accepted that the August 26, 2019 employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient to establish causal relationship between his diagnosed conditions and the accepted August 26, 2019 employment incident.

On August 21, 2020 appellant, through counsel, requested reconsideration and submitted additional evidence.

By decision dated September 21, 2021, OWCP denied modification of its November 22, 2019 decision.

On February 22, 2022 appellant, through counsel, requested reconsideration of the September 21, 2021 decision and submitted additional evidence.

By decision dated May 23, 2022, OWCP denied modification of its September 21, 2021 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 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 Herein, appellant’s claim under OWCP File No. xxxxxx223 also involved injuries to the right foot. Therefore, for a full and fair adjudication, this case must be remanded to OWCP to administratively combine the current case record with OWCP File No. xxxxxx223.5 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision.

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000).
4
Id.; M.L., Docket No. 20-1176 (issued April 29, 2021); L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019). 5 Supra note 3 at Chapter 2.400.8c(1); W.D., Docket No. 19-0961 (issued March 31, 2021); L.P., Docket Nos. 18- 1558, 18-1568 (issued June 21, 2019).

2
IT IS HEREBY ORDERED THAT the May 23, 2022 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: September 13, 2023
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3