J.H. and U.S. Postal Service, Post Office, Omaha, NE (Board decision, November 30, 2022)

ECAB remand decision. The Board set aside OWCP's July 11, 2022 refusal to reopen J.H.'s claim and ordered a new decision that addresses a previously submitted statement. Entitlement to compensation 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 letter carrier claimed that decades of sorting and carrying mail caused carpal tunnel syndrome. OWCP denied the claim and later refused to reconsider it. The Board found that OWCP had overlooked a statement describing his work tasks and hand symptoms that was submitted after the earlier decision. It set aside the reconsideration refusal and directed OWCP to consider the statement with the full record before issuing a new decision.

Decision snapshot

• Authority: OWCP review of evidence submitted on reconsideration and 20 C.F.R. § 501.2(c).
• Outcome: Reconsideration refusal set aside; case remanded for a new decision.
• Key point: OWCP must address relevant evidence in its own record before the Board can review its decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.H., Appellant
)
)
and ) Docket No. 22-1202
) Issued: November 30, 2022
U.S. POSTAL SERVICE, POST OFFICE,
)
Omaha, NE, 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 JAMES D. McGINLEY, Alternate Judge

On August 16, 2022 appellant filed a timely appeal from a July 11, 2022 non-merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 22-1202.

On April 30, 2021 appellant, then a 52-year-old retired letter carrier, filed an occupational disease claim (Form CA-2) alleging that he developed bilateral carpal tunnel syndrome (CTS) due to factors of his federal employment, including tightly gripping mail with his left hand and fingering single pieces of mail with his right hand, 8 to 10 hours per day for 27 years. He noted that he first became aware of his condition and realized its relationship to his federal employment on December 9, 2020. On the reverse side of the claim form, the employing establishment indicated that appellant retired on November 25, 2019.

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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. By decision dated June 7, 2021, OWCP denied appellant’s occupational disease claim, finding that the evidence of record was insufficient to establish that the alleged work factors occurred as described.

On October 21, 2021 appellant, through counsel, filed a timely appeal with the Board. By decision dated April 21, 2022,2 the Board affirmed the June 7, 2021 decision.

OWCP continued to receive additional evidence following the June 7, 2021 decision, including a statement by appellant dated September 7, 2021, which indicated that before he resigned from his federal employment, he experienced numbness in, and reduced function of his right hand. He also noted progressively worsening symptoms and visible atrophy in his right wrist area. Appellant further related that, while working as a carrier, he held his hands in the same position for 8 to 10 hours per day, including the first two fingers of his right hand, which he used continuously to flip through pieces of mail. He indicated that those two fingers were the most symptomatic.

OWCP also received a notification of personnel action (PS Form-50) dated November 25, 2019, which indicated that appellant’s last day in pay status was November 12, 2019.

On June 6, 2022 appellant, through counsel, requested reconsideration. In support of the request, he submitted additional medical evidence including a November 23, 2020 report by Dr. Carleigh B. Golden, a Board-certified internal medicine specialist, a December 9, 2020 report by Dr. Karen L. Bremer, a Board-certified neurologist, a December 22, 2020 report by Dr. Gangadasu S. Reddy, a Board-certified hand, plastic, and reconstructive surgery specialist, and a January 27, 2021 postoperative follow-up note by Kathy Heurter, a nurse practitioner. This evidence pertained to treatment of appellant’s right wrist and hand, including discussion of carpal tunnel release surgery on January 13, 2020.

By decision dated July 11, 2022, OWCP denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration neither raised substantial legal questions, nor included new or relevant evidence. It noted that the evidence on reconsideration included the November 23, 2020 and December 9 and 22, 2020 medical reports. OWCP further noted that “while [he] submitted medical evidence indicating diagnosis of carpal tunnel, [he] still did not provide a statement describing in detail the job task [he performed] which have caused and/or aggravated this condition.”

The Board, having duly considered the matter, finds that this case is not in posture for decision.

2
Docket No. 22-0062 (issued April 21, 2022).

2
 In the case of William A. Couch,3 the Board held that, when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before the final decision is issued.

In its July 11, 2022 decision, OWCP noted that “while [appellant] submitted medical evidence indicating diagnosis of carpal tunnel, [he] still did not provide a statement describing in detail the job task [he performed] which have caused and/or aggravated this condition. ” While OWCP is not required to list every piece of evidence submitted to the record, appellant’s September 7, 2021 statement was received following OWCP June 7, 2021 decision but reviewed by OWCP in its July 11, 2022 decision.4

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 5 As OWCP did not consider appellant’s September 7, 2021 statement received following the June 7, 2021 decision, the Board cannot review such evidence for the first time on appeal.6

For this reason, the case will be remanded to OWCP to properly consider all of the evidence of record.7 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision.8

3
41 ECAB 548 (1990).
4
See T.G., Docket No. 19-1930 (issued January 8, 2021).
5
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 3.
6
20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).
7
M.J., Docket No. 18-0605 (issued April 12, 2019).
8
The Board notes that it is unnecessary to consider the evidence appellant submitted prior to the issuance of OWCP’s June 7, 2021 merit decision because the Board considered that evidence in its April 21, 2022 decision. Findings made in prior Board decisions are res judicata absent further review by OWCP under section 8128 of FECA. C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

3
 IT IS HEREBY ORDERED THAT the July 11, 2022 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings cons istent with this decision of the Board.

Issued: November 30, 2022
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

4