H.C. and U.S. Postal Service, Lewisburg Post Office, Lewisburg, OH (Board decision, September 14, 2023)

ECAB remand decision. The Board set aside OWCP’s February 23, 2023 decision and returned the shoulder claim for combined review with an earlier accepted shoulder file. Entitlement under the current 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). 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 worker filed another claim involving shoulder conditions after an earlier shoulder claim had been accepted. OWCP decided the newer claim without combining the related files. The Board found that review of both files was needed for fair adjudication. It ordered the records combined and a new decision.

Decision snapshot

• Authority: FECA and OWCP procedures for related injury files.
• Outcome: Shoulder claim decision set aside; related files combined on remand.
• Key point: Overlapping shoulder claim files must be reviewed together.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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H.C., Appellant
)
)
and ) Docket No. 23-0607
)
Issued: September 14, 2023
U.S. POSTAL SERVICE, LEWISBURG POST )
OFFICE, Lewisburg, 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 JAMES D. McGINLEY, Alternate Judge

On March 21, 2023 appellant, through counsel, filed a timely appeal from a February 23, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-0607.

On October 1, 2020 appellant, then a 48-year-old rural carrier, filed an occupational disease claim (Form CA-2) alleging that she experienced pain between her shoulders caused by what she believed to be herniated discs and disc protrusions, which were due to factors of her federal employment. She noted that she first became aware of her condition and realized its relation to her federal employment on July 20, 2020. On the reverse side of the claim form, appellant’s

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. supervisor noted that, at the time of the claim, appellant was working with restrictions due to her accepted bilateral shoulder conditions under OWCP File No. xxxxxx954.2

By decision dated November 17, 2020, OWCP denied the present claim, finding that the evidence of record was insufficient to establish that the diagnosed medical conditions were causally related to the “accepted work event(s)” with regard to a July 20, 2020 work-related exposure. By decision dated March 11, 2022, it modified the denial of the claim to find that the evidence of record was insufficient to establish the alleged employment factors, as the evidence was unclear as to what factors of employment appellant was claiming to have caused her medical conditions. Appellant subsequently requested reconsideration. By decision dated June 30, 2022, OWCP denied appellant’s request for reconsideration, pursuant to 5 U.S.C. § 8128(a).

Appellant again requested reconsideration. By decision dated February 23, 2023, OWCP denied modification of its prior decision.

The Board, having duly considered this 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 case 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

Under OWCP File No. xxxxxx954 OWCP accepted bilateral shoulder conditions. As the present claim also involves shoulder conditions, the Board finds that the claims must be administratively combined for a full and fair adjudication. Consolidation of the case files prior to the final decision would allow OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s present claim.

Accordingly, the Board will remand the case for OWCP to administratively combine OWCP File No. xxxxxx954 with the present claim. Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision.

2
Appellant had filed a notice of occupational disease (Form CA-2) on April 12, 2019 alleging left shoulder pain and pain between the shoulder blades. OWCP assigned that claim OWCP File No. xxxxxx954 and accepted it for: incomplete rotator cuff tear or rupture of left shoulder, not specified as traumatic; other specified disorders o f tendon, right shoulder aggravation; superior glenoid labrum lesion of right shoulder aggravation; primary osteoarthritis, right shoulder aggravation; sprain of left rotator cuff capsule; primary osteoarthritis left shoulder aggravation; and adhesive capsulitis of right and left shoulders. 3 K.R., Docket No. 20-0911 (issued October 30, 2020); R.R., Docket No. 19-0368 (issued November 26, 2019);
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c (February 2000). 4 Id.

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IT IS HEREBY ORDERED THAT the February 23, 2023 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 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

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