J.A. and Department of Veterans Affairs, Brooklyn VA Medical Center (Board decision, December 28, 2023)

ECAB remand decision. The Board set aside OWCP’s July 21, 2022 refusal to reopen the emotional condition claim and ordered three related claim files combined before a new decision. Whether the current 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). 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 VA nursing assistant sought compensation for anxiety and PTSD after reassignment to a unit where a patient had assaulted her years earlier. OWCP had accepted PTSD in an earlier claim file but denied the newer claim and later refused merit reconsideration. The Board found that the current and earlier claims concerned related conditions and needed to be reviewed together. It set aside the reconsideration denial and ordered OWCP to combine the three files and issue a new decision. The Board did not decide whether the current claim should be accepted.

Decision snapshot

• Authority: FECA and OWCP’s file management procedures.
• Outcome: Reconsideration denial set aside; three related claims combined and remanded.
• Key point: OWCP needed the earlier accepted trauma claims in the record to evaluate the newer emotional condition claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

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J.A., Appellant
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and ) Docket No. 23-0321
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Issued: December 28, 2023
DEPARTMENT OF VETERANS AFFAIRS,
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BROOKLYN VA MEDICAL CENTER,
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Brooklyn, NY, Employer
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__________ )

Appearances: Case Submitted on the Record
Stephen C. Larkin, for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 31, 2022 appellant, through her representative, filed a timely appeal from a July 21, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23 -0321.

On August 7, 2020 appellant, then a 61-year-old nursing assistant, filed an occupational disease claim (Form CA-2) alleging that she sustained anxiety and post-traumatic stress disorder (PTSD) due to factors of her federal employment, including experiencing chest tightness, heart palpitations, and nervousness during hourly rounds. She noted that she first became aware of her conditions on July 17, 2020, and first realized their relation to her federal employment on July 20, 2020. Appellant stopped work on July 17, 2020. OWCP assigned this claim OWCP File No. xxxxxx734.

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.
Previously, appellant had filed a traumatic injury claim (Form CA-1) for injuries sustained on March 7, 2000, when she was assaulted by a combative patient. OWCP assigned the claim OWCP File No. xxxxxx216. It accepted the claim for post-concussion syndrome. Additionally, on October 4, 2001 appellant filed a Form CA-2 alleging that she sustained an emotional condition on or before March 1, 2001 due to factors of her federal employment, including the March 7, 2000 assault. OWCP assigned the claim OWCP File No. xxxxxx353. It accepted the claim for post- traumatic stress disorder (PTSD).

OWCP received reports dated October 1 and November 14, 2001 by Dr. Herbert H. Stein, a Board-certified psychiatrist, who recounted appellant’s history of severe head injuries sustained in 2000 when assaulted by a patient in a psychiatric unit, and a verbal threat in 2001 by another patient in a different psychiatric unit. Dr. Stein diagnosed work-related PTSD with delayed onset.

In reports dated from July 23, 2010 through April 20, 2012, Dr. Philip A. Saigh, a clinical psychologist, noted that visiting the locked ward where the assault occurred exacerbated appellant’s PTSD and anxiety.

In a July 17, 2020 report, Dr. Nausika Prifti, an osteopath Board-certified in psychiatry, recounted that appellant attributed her anxiety to her recent reassignment to the mental health unit where she had been physically assaulted by a patient. Dr. Prifti diagnosed chronic, severe PTSD.

In a July 19, 2020 report, Dr. Stein noted that appellant’s anxiety/PTSD symptoms related to the 2001 employment injury recurred when the employing establishment approached her about working in the inpatient units.

By decision dated October 29, 2020, OWCP denied appellant’s claim for an employment- related emotional condition, finding that the evidence of record was insufficient to establish that the injury and/or events occurred, as alleged. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

On November 23, 2020 appellant requested reconsideration. She submitted an October 20, 2020 report by Dr. Eugenia Steingold, a clinical psychologist, who opined that appellant’s recent transfer to the unit where the 2000 assault occurred, and a patient’s recent verbal outburst, had retraumatized appellant. Dr. Steingold diagnosed acute, severe PTSD.

By decision dated January 12, 2021, OWCP denied modification of the prior decision.

On March 16, 2021 appellant requested reconsideration. She submitted a June 12, 2020 email by supervisor D.G. noting her reassignment.

By decision dated April 28, 2021, OWCP denied modification of the prior decision.

On April 27, 2022 appellant, through her representative, requested reconsideration. She submitted an April 27, 2022 report by Dr. Steingold, who noted that appellant had been returned to the unit, where on July 17, 2020 a patient “screamed at [her] violently” and attempted to strike her.

2
By decision dated July 21, 2022, OWCP denied appellant’s request for reconsideration of the merits of her 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 or the same part of the body, doubling is required. 3

In the instant case, appellant submitted numerous medical reports indicating that the claimed emotional condition originated from the March 7, 2000 employment injury, accepted for post-concussion syndrome under OWCP File No. xxxxxx216 and for post-traumatic stress disorder under OWCP File No. xxxxxx353. Dr. Stein, in his October 1 and November 14, 2001 reports, diagnosed PTSD causally related to the March 7, 2000 workplace assault accepted under OWCP File Nos. xxxxxx216 and xxxxxx353.

As such, the Board finds that appellant’s claims under OWCP File No. xxxxxx216, accepted for post-concussion syndrome sustained in the March 7, 2000 assault, and OWCP File No. xxxxxx353, accepted for PTSD causally related to the March 7, 2000 assault, should be administratively combined with the present claim under OWCP File No. xxxxxx734. Therefore, for a full and fair adjudication, this case shall be remanded to OWCP to administratively combine OWCP File Nos. xxxxxx216, xxxxxx353, and xxxxxx734. Following this and such further development as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s claim. Accordingly,

2
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000); see Order Remanding Case, J.M., Docket No. 22-0333 (issued July 1, 2022); K.K., Docket No. 20- 0581 (issued September 14, 2020). 3 Id.; Order Remanding Case, M.J., Docket No. 22-1357 (issued June 12, 2023); Order Remanding Case, D.C., Docket No. 19-0100 (issued June 3, 2019); Order Remanding Case, N.M., Docket No. 18-0833 (issued April 18, 2019); Order Remanding Case, K.T., Docket No. 17-0432 (issued August 17, 2018).

3
IT IS HEREBY ORDERED THAT the July 21, 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: December 28, 2023
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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