United States Department of Labor

Employees’ Compensation Appeals Board

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E.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Canandaigua, NY, Employer

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Docket No. 18-0186

Issued: May 2, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 2, 2017 appellant, through counsel, filed a timely application for review 

from a May 25, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

denying her occupational disease claim. The Board docketed the appeal as No. 18-0186. 

On July 20, 2015 appellant, then a 56-year-old recreation therapist, filed an occupational 

disease claim (Form CA-2), assigned File No. xxxxxx804, alleging an allergic reaction and 

respiratory distress due to factors of her federal employment. She alleged that she first became 

aware of these conditions and their relationship to her employment on July 2, 2015. Appellant 

 

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

asserted that, following a December 14, 2014

2

injury, under File No. xxxxxx227, she returned to 

work in an alternate-duty assignment at an offsite facility when she experienced the same 

symptoms she had previously experienced while working at the employing establishment facility 

on December 14, 2014. She stopped work on July 13, 2015. The claim for this previously 

accepted work injury, to which OWCP assigned File No. xxxxxx227, is not presently before the 

Board.3 

On November 18, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that 

she sustained a recurrence of disability on July 2, 2015 due to a previous December 14, 2014 

injury. She explained that because she was unable to return to an employing establishment facility 

due to her reaction to chemicals used in her work area, she was assigned to off-site facilities where 

she was exposed to chemical cleaning products which caused her respiratory symptoms to recur. 

Appellant submitted medical evidence attributing her claimed condition and resultant disability to 

her previous work injury. On December 7, 2015 OWCP determined that the recurrence claim 

should be adjudicated as a new occupational disease claim and assigned File No. xxxxxx670. 

However, on March 18, 2016 it deleted the claim under File No. xxxxxx670 because it had created 

two separate cases for the same injury. OWCP moved the documents from File No. xxxxxx670 

into the case record for File No. xxxxxx804. In a March 22, 2016 decision, OWCP denied 

appellant’s occupational disease claim under File No. xxxxxx804 as the medical evidence of 

record did not contain a medical diagnosis in connection with the accepted employment factors. 

By decisions dated March 9 and May 25, 2017, OWCP denied modification of its prior decisions 

denying appellant’s claim.

The Board has duly considered the matter and finds 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-referencing between files. 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 In the May 25, 2017 decision, OWCP found that 

“[u]pon review of the entirety of the medical evidence and also upon review of documents under 

[File No.] [xxxxxx]227, which was accepted by this Office for Extrinsic Asthma with Acute 

Exacerbation (Airway Hyperreactivity Syndrome Induced by Chemical Inhalation), your 

physicians do not specifically provide a valid medical condition in connection to your cited work 

factors.” The evidence pertaining to File No. xxxxxx227, however, is not in the case record 

presently before the Board. 

For a full and fair adjudication, this case must be returned to OWCP to combine the current 

case record with File No. xxxxxx227. On remand OWCP shall determine whether appellant 

 

2 The Board notes that on the claim form, appellant noted December 14, 2015. However, this appears to be a 

typographical error as it postdates the submission of the form. A list of appellant’s OWCP cases found in this case 

record indicates the date of injury in File No. xxxxxx227 as December 14, 2014. 

3 OWCP indicated that it accepted the claim in File No. xxxxxx227 for extrinsic asthma with acute exacerbation 

(airway hyperreactivity syndrome induced by chemical inhalation).

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

(February 2000).
3

sustained either a new work injury or a recurrence of disability due to her previously accepted 

employment injury.5 Following this and such further development as OWCP deems necessary, it 

shall issue a de novo decision. 

IT IS HEREBY ORDERED THAT the May 25, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision.

Issued: May 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

5 See L.Z., Docket No. 11-1415 (issued December 12, 2011).