United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F. D., Appellant

and

DEPARTMENT OF AGRICULTURE, 

AGRICULTURAL MARKETING SERVICE, 

Bronx, NY, Employer

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Docket No. 17-0988

Issued: February 2, 2018

Appearances: Case Submitted on the Record

Capp Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

On April 3, 2017 appellant, through his attorney, filed a timely appeal from November 2, 

2016 and February 8, 2017 merit decisions of the Office of Workers’ Compensation Programs 

(OWCP). The Board docketed the appeal as No. 17-0988.

On January 2, 2014 appellant, an agricultural commodity grader, filed a recurrence of 

disability claim (Form CA-2a) under OWCP File No. xxxxxx474.2 He reported that, since a 

 

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 File No. xxxxxx474 is not before the Board in the present appeal. Under File No. xxxxxx474, OWCP accepted 

a right shoulder sprain that occurred on May 30, 2013 when appellant slipped while carrying a carton of grapes on 

his right shoulder. Under that claim, appellant filed a recurrence claim on January 13, 2014. On April 9, 2014 

OWCP denied the recurrence. Appellant timely requested a hearing with OWCP’s Branch of Hearings and Review 

and, in a January 14, 2015 decision, an OWCP hearing representative affirmed the April 9, 2014 decision. He then 

requested reconsideration, and, in an August 11, 2015 decision, OWCP vacated prior decisions, finding that the 

January 2, 2014 recurrence claim would be adjudicated as a new occupational disease claim and would be assigned a 

new OWCP File No.
2

May 30, 2013 injury, his back and neck continued to worsen, causing severe pain that limited his 

job performance. Appellant indicated that he had neck and spine damage, as well as numbness 

in his extremities with swelling, loss of balance, loss of range of motion, and intense neck and 

back pain. He stopped work on December 11, 2003. OWCP developed the recurrence claim as a 

new occupational disease claim under File No. xxxxxx795.3 On October 21, 2015 it informed 

appellant of the type of evidence needed to establish the claim. Appellant, through counsel, 

requested that OWCP review the medical records in File No. xxxxxx474. He submitted a 

September 9, 2015 report from Dr. Arnold B. Wilson, an attending Board-certified orthopedic 

surgeon, who noted seeing appellant in follow up for his neck, back, and right shoulder

conditions. In a January 8, 2016 decision, issued under File No. xxxxxx795, OWCP denied the 

new occupational disease claim because the evidence provided was insufficient to establish that 

the claimed work factors occurred as alleged. Counsel timely requested a hearing. which was 

held on September 7, 2016. During the hearing, appellant testified regarding his employment 

duties and the May 30, 2013 employment injury.

In a November 2, 2016 decision, issued under File No. xxxxxx795, an OWCP hearing 

representative modified the January 8, 2016 decision to reflect that the factual component of 

appellant’s claim had been established, but denied the claim, finding the medical evidence of 

record insufficient to establish the claim. The decision referenced evidence found in File No. 

xxxxxx474. Counsel subsequently requested reconsideration. In a merit decision dated 

February 8, 2017, OWCP denied modification of the prior decisions.

The Board notes that there are no medical reports found in OWCP File No. xxxxxx795 

dated between June 2013, when appellant returned to work following the May 30, 2013 

employment injury, and December 13, 2013, when he stopped work and filed the recurrence 

claim, now adjudicated as an occupational disease claim. The medical evidence in File No. 

xxxxxx795 begins with a cervical spine magnetic resonance imaging (MRI) scan dated March 8, 

2013 which demonstrated disc herniations at C3-4, C4-5, C5-6, and a disc bulge at C2-3. The 

next report is a treatment note dated December 19, 2013 in which Dr. John M. Olsewski, a 

Board-certified orthopedic surgeon, indicated that he was seeing appellant for the first time. 

Dr. Olsewski described the May 30, 2013 work injury, listed findings, noted cervical spine MRI 

scan findings, and diagnosed cervical radiculopathy.

The Board has duly considered the matter and concludes that this case is not in posture 

for decision. OWCP procedures provide that cases should be combined when correct 

adjudication of the issues depends on frequent cross-reference between files.4 Appellant has a 

claim, adjudicated by OWCP under File No. xxxxxx474, accepted for right shoulder sprain, 

caused by a May 30, 2013 employment injury. The medical evidence of record in File No. 

xxxxxx795, begins on December 19, 2013 and does not contain prior medical evidence

contained in File No. xxxxxx474. As these two case files have not been administratively 

combined, the Board is unable to determine whether all pertinent evidence was reviewed prior to 

the denial of the instant occupational disease claim, and is unable to properly adjudicate this 

appeal. As the record before the Board is incomplete and would not permit an informed 

 

3 File No. xxxxxx795 is the claim presently before the Board.

4 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) 

(February 2000).
3

adjudication of the case by the Board, the case must be remanded to OWCP to administratively 

combine the files and for further reconstruction and development deemed necessary, to be 

followed by an appropriate de novo decision.5

IT IS HEREBY ORDERED THAT the February 8, 2017 and November 2, 2016 

decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded 

for further proceedings consistent with this order of the Board.6

Issued: February 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

 

5 See W.B., Docket No. 15-1751 (issued March 8, 2016).

6 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.