L.G. and U.S. Postal Service, Post Office, Houston, TX (Board decision, February 21, 2023)

ECAB remand decision. The Board set aside OWCP's July 14, 2022 refusal to reopen the claim and returned the case for combined review of related claim files. The occupational disease claim 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 employee filed a back condition claim while referring to earlier injury claims involving overlapping body parts. OWCP had denied the current claim as untimely and later refused to reopen it. The Board found that fair review required OWCP to combine the current file with three related claim files that it or the worker had referenced. It set aside the refusal to reopen and returned the case for combined review and a new decision. The Board did not decide whether the back condition claim was timely or compensable.

Decision snapshot

• Authority: 5 U.S.C. §§ 8122 and 8128(a); FECA Procedure Manual, Chapter 2.400.8c.
• Outcome: July 14, 2022 reconsideration denial set aside; case remanded.
• Key point: OWCP must combine related injury files when proper adjudication requires frequent cross-referencing.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.G., Appellant
)
)
and ) Docket No. 22-1097
) Issued: February 21, 2023
U.S. POSTAL SERVICE, POST OFFICE,
)
Houston, 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 19, 2022 appellant filed a timely appeal from a July 14, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 22-1097.

On July 13, 2021 appellant, then a 28-year-old technical systems program manager, filed an occupational disease claim (Form CA-2) alleging that she injured her back due to factors of her federal employment, including attempting to prevent mail that she was delivering to a mailbox from falling to the ground. She noted that thereafter, she developed pain and burning in her back. Appellant also related that she was already working with restrictions of no bending at the time of her injury.1 She noted that she first became aware of her condition on April 14, 2015 and realized its relation to her federal employment on July 10, 2021. On the reverse side of the claim form,

1
OWCP assigned the present claim OWCP File No. xxxxxx983. Appellant has a number of previously filed claims.
She has a previously accepted April 14, 2015 traumatic injury claim (Form CA-1) for a neck and left elbow sprain, and shoulder tendon and bursae disorder under OWCP File No. xxxxxx544. Appellant previously filed a Form CA-2 on December 3, 2020 alleging that she developed neck and shoulder conditions under OWCP File No. xxxxxx576, which OWCP denied by decision dated January 21, 2021; and she previously filed an August 26, 2019 Form CA-1 alleging that she injured her left arm, shoulder and neck on August 19, 2019 under OWCP File No. xxxxxx728, which OWCP denied by decisions dated October 11, 2019 and January 10, 2020. These claims have not been administratively combined.

appellant’s supervisor indicated that the date she was last exposed to the conditions alleged to have caused her disease or illness was July 10, 2021. Appellant did not stop work.

By decision dated August 17, 2021, OWCP denied appellant’s occupational disease claim, finding that it was untimely filed pursuant to 5 U.S.C. § 8122.2

On September 17, 2021 appellant requested reconsideration of the August 17, 2021 decision and submitted additional evidence in support of her request.

By decision dated October 1, 2021, OWCP denied appellant’s request for reconsideration of the merits of her claim. It further noted that the alleged date of injury was the same date as appellant alleged in OWCP File Nos. xxxxxx155 and xxxxxx576.

On July 5, 2022 appellant again requested reconsideration of the August 17, 2021 decision and submitted additional evidence. Along with her request, she submitted an April 14, 2015 routing slip and an August 19, 2019 traumatic injury claim (Form CA-1) from OWCP File No. xxxxxx728. Appellant also submitted an undated letter in which she referenced OWCP File No. xxxxxx544 and requested that OWCP reopen her 2015 injury case. She further indicated that she possessed magnetic imaging resonance (MRI) scan results from OWCP File No. xxxxxx544, which she asserted had revealed bulging discs in her back and neck.

By decision dated July 14, 2022, OWCP denied appellant’s request for reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).

The Board has duly considered the matter and concludes 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 In a letter accompanying her request for reconsideration, appellant referenced OWCP File No. xxxxxx544 and attached an August 19, 2019 Form CA-1 from OWCP File No. xxxxxx728. OWCP’s October 1, 2021 denial of reconsideration further cross-referenced OWCP File Nos. xxxxxx544 and xxxxxx576. Thus,

2
In a case of occupational disease, the time for filing a claim begins to run when the employee first becomes aware, or reasonably should have been aware, of a possible relationship between his or her condition and his or her employment. Such awareness is competent to start the limitation period even though the employee does not know the precise nature of the impairment or whether the ultimate result of such affect would be temporary or permanent. Where the employee continues in the same employment after he or she reasonably should have been aware that he or she has a condition which has been adversely affected by factors of his or her federal employment, the time limitation begins to run on the date of the last exposure to the implicated factors. Section 8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run until the claimant is aware, or by the exercise of reasonable diligence should have been aware, of the causal relationship between the employment and the compensable disability. 5 U.S.C. § 8122(b); see also S.H. Docket No. 22-0610 (issued October 21, 2022). 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).

2

for a full and fair adjudication, this case must be returned to OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx544, xxxxxx576, and xxxxxx728, so that it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s current occupational disease claim.5

Following this and other such further development as OWCP deems necessary, it shall issue an appropriate decision.

IT IS HEREBY ORDERED THAT the July 14, 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: February 21, 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

5
Supra note 2 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).

3