T.H. and Department of the Treasury, Internal Revenue Service National Office (Board decision, May 2, 2025)

ECAB remand decision. The Board set aside OWCP's refusal to add shoulder conditions and returned the matter for combined file review; claim expansion 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).

Plain-English summary

An IRS employee sought to add shoulder conditions to a claim following a workplace incident. She had several earlier claim files involving her neck and shoulders. The Board found OWCP needed to combine those related files before deciding whether to expand the current claim.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Shoulder claim-expansion denial set aside; related files to be combined on remand.
• Key point: Related injury files had to be reviewed together for a fair expansion decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.H., Appellant
)
)
and ) Docket No. 25-0446
)
Issued: May 2, 2025
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE NATIONAL )
OFFICE, Holtsville, NY, Employer )
__________ )

Appearances: Case Submitted on the Record
Thomas Harkins, 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 VALERIE D. EVANS-HARRELL, Alternate Judge

On March 31, 2025, appellant, through counsel, filed a timely appeal from an October 16, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 25-0446.2

On January 8, 2024, appellant, then a 49-year-old contact representative, filed a traumatic injury claim (Form CA-1) alleging that on January 2, 2024 she injured her head, neck, back,

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. 2 The Board notes that, following the October 16, 2024 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. shoulders, arms, wrists, legs, knees, and ankles while in the performance of duty. 3 She noted that she leaned on a broken desk, which fell, and resulted in bags falling on her head. Appellant stopped work on the date of the claimed injury.

In support of her claim, appellant submitted a July 25, 2024 narrative medical report by her attending physician, Dr. Stuart Cherney, a Board-certified orthopedic surgeon, who opined that the January 2, 2024 employment injury exacerbated preexisting cervical disc herniations.

By decision dated August 26, 2024, OWCP accepted the claim for other cervical disc displacement.

On October 3, 2024, OWCP prepared a statement of accepted facts (SOAF), which listed the accepted condition as other cervical disc displacement. It also noted her prior claims under OWCP File Nos. xxxxxx534 and xxxxxx738, which it indicated had been administratively closed.

OWCP referred appellant’s claim, along with the October 3, 2024 SOAF, and the medical record, to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a district medical adviser (DMA).

In a report dated October 15, 2024, Dr. Hammel opined that the mechanism of injury was incapable of causing shoulder impingement, rotator cuff tendinitis, rotator cuff tear, or degenerative disease and recommended a second opinion evaluation to address whether appellant’s cervical disc herniations preexisted the accepted January 2, 2024 employment injury.

By decision dated October 16, 2024, OWCP denied expansion of the acceptance of the claim to include the diagnosed right and left shoulder conditions.4

The Board, having duly considered this matter, finds that the 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. 5 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. 6 Appellant’s claim under OWCP File No. xxxxxx534 involved an injury to her cervical spine and her claims under OWCP File Nos. xxxxxx738 and xxxxxx782 involved injuries to her neck and shoulders, which are also at issue in the present claim. Therefore, for full and fair adjudication, this case shall be remanded for OWCP to administratively combine OWCP File Nos. xxxxxx534, xxxxxx738, and xxxxxx782 with the present claim, so it can consider all relevant claim files and accompanying evidence in

3
OWCP assigned the present claim OWCP File No. xxxxxx979. Appellant has previously accepted claims for a November 29, 2013 cervical spine subluxation under OWCP File No. xxxxxx534, and January 26, 2015 sprains of the neck, right shoulder, and right upper arm acromioclavicular joint under OWCP File No. xxxxxx738. She also filed a Form CA-1 for December 13, 2017 injuries to her shoulders, neck, and bilateral upper, middle, and lower back, which OWCP denied under OWCP File No. xxxxxx782. The claims have not been administratively combined by OWCP. 4 OWCP further noted that it was in the process of obtaining a second opinion evaluation to clarify whether the cervical disc herniation was preexisting and whether it was aggravated, accelerated, or precipitated by the accepted January 2, 2024 employment injury. 5 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c (February 2000).
6
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 adjudicating appellant’s current claim. 7 Following this and other such further development as OWCP deems necessary, it shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the October 16, 2024 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: May 2, 2025
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

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

7
Supra note 5 at Chapter 2.400.8c(1) (February 2000); W.D., Docket No. 19-0961 (issued March 31, 2021); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019).

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