J.V. and Department of Homeland Security, U.S. Customs and Border Protection, Corpus Christi, TX (Board decision, March 14, 2023)

ECAB remand decision. The Board set aside OWCP's April 25 and July 6, 2022 decisions and directed it to combine the right shoulder claim with earlier accepted left shoulder files before deciding anew. 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).

Plain-English summary

A retired border patrol agent claimed that heavy use of his right arm followed multiple accepted left shoulder injuries and surgeries. OWCP denied his right shoulder claim without combining the related prior files. The Board found that evaluating a possible consequential injury required reviewing those files together. It set aside OWCP's claim and reconsideration decisions and directed OWCP to combine the four files and issue a new decision.

Decision snapshot

• Authority: FECA Procedure Manual, Part 2, Chapter 2.400.8c (file combination).
• Outcome: Right shoulder denial and reconsideration decision set aside and remanded.
• Key point: The claimed right shoulder condition needed review alongside the accepted left shoulder injuries.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.V., Appellant
)
)
and ) Docket No. 22-1047
) Issued: March 14, 2023
DEPARTMENT OF HOMELAND SECURITY,
)
U.S. CUSTOMS AND BORDER PROTECTION,
)
Corpus Christi, TX, 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 JAMES D. McGINLEY, Alternate Judge

On July 6, 2022 appellant filed a timely appeal from an April 25, 2022 merit decision and a July 6, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-1047.

On January 18, 2022 appellant, then a 50-year-old border patrol agent, filed an occupational disease claim (Form CA-2) alleging that he sustained severe right shoulder pain due to factors of his federal employment, including physical tasks during his 22-plus years in law enforcement. He added that two previous surgeries on his left shoulder left him with an impairment rating and a very weak left arm. Appellant noted that he first became aware of his condition and its relation to his federal employment on January 18, 2022. On the reverse side of the claim form, appellant’s supervisor reported that he was retired and was last exposed to the conditions alleged to have caused the claimed condition on June 21, 2021. OWCP assigned OWCP File No. xxxxxx898.

In an accompanying narrative statement, appellant described his work duties and noted that he had previously sustained an accepted left shoulder injury, which resulted in two surgeries. He

reported that, due to the high percentage of impairment of his lef t shoulder, he had to compensate in his daily activities by just using his right arm.1

In a January 26, 2022 development letter, OWCP informed appellant of the deficiencies of his claim. It advised him of the type of factual and medical evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.

By decision dated April 25, 2022, OWCP denied appellant’s occupational disease claim, finding that the evidence of record was insufficient to establish that his medical condition was causally related to the accepted factors of his federal employment.

On May 3, 2022 appellant requested reconsideration.

By decision dated July 6, 2022, OWCP denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

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. 2 For example, if a new injury case is reported for an employee who previously filed an injury claim for a similar condition, doubling is required.3 Regarding alleged consequential injuries, in discussing the range of compensable consequences, once the primary injury is causally connected with the employment, the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury. The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. 4 Herein, appellant reported that, due to the length of time and high percentage of impairment of his accepted left shoulder claims, he had to compensate in his daily activities by just using his right arm, which resulted in his right shoulder condition.

1
The record reflects that appellant has previously-accepted traumatic injury claims (Form CA-1) for left shoulder conditions. A December 19, 2016 claim under OWCP File No. xxxxxx966 was accepted for other specific joint derangements of the left knee, left shoulder rotator cuff strain, and other disturbances of skin sensation; a March 28, 2018 claim under OWCP File No. xxxxxx903 was accepted for sprain of left shoulder joint; and a February 12, 2019 claim under OWCP File No. xxxxxx994 was accepted for left shoulder rotator cuff strain and tear. OWCP granted appellant a schedule award for 16 percent permanent impairment of the left upper extremity under OWCP File No. xxxxxx994. 2 K.K., Docket No. 20-0581 (issued September 14, 2020); see Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000). 3 Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018). 4 See C.H., Docket No. 20-0228 (issued October 7, 2020); see also K.S., Docket No. 17-1583 (issued May 10, 2018).

2

The Board finds that for a full and fair adjudication of appellant’s claim, the case shall be remanded to OWCP to administratively combine OWCP File Nos. xxxxxx898, xxxxxx966, xxxxxx903, and xxxxxx994. Following any further development deemed necessary, it shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the April 25 and July 6, 2022 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: March 14, 2023
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

3