United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION FACILITY, Charleston, SC, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0130

Issued: October 8, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 22, 2018 appellant filed a timely appeal from an August 2, 2018 merit decision 

and a September 28, 2018 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The Clerk of the Appellate Boards assigned Docket No. 19-0130. 

On February 12, 2018 appellant, then a 53-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging an injury to her right ankle. She explained that 

she had a medical appointment on November 22, 2017 as her ankle had been “more swollen” for 

the prior month and that she was taken out of work and provided a boot. Appellant identified 

December 28, 2016 as the date she first became aware of her condition, and November 22, 2017 

as the date she realized it was caused or aggravated by the duties of her federal employment

position.

Appellant has a previously accepted injury in OWCP File No. xxxxxx324 as she sustained 

an injury to her right ankle while operating a pallet jack on December 28, 2016. That claim was 

accepted for right ankle abrasion, contusion, and sprain. 
2

Appellant was treated for her right ankle in her prior claim and the current claim with

Dr. Howard L. Brilliant, a Board-certified orthopedic surgeon. In a November 22, 2017 progress 

note, Dr. Brilliant noted that appellant was well known to him with reflex sympathetic dystrophy,

old fracture, and massive contusion of her right ankle from a work injury a year prior. He noted 

that appellant was getting well until she had to work extra hard at work the prior day. Dr. Brilliant

indicated that his physical examination showed increased swelling along the lateral border of the 

right ankle, and he provided a diagnosis of “reflex sympathetic dystrophy old ankle fracture.” He

characterized appellant as having an acute exacerbation and should remain out of work for two 

weeks, at which time a follow-up appointment would be made. 

On December 5, 2017 Dr. Brilliant advised that appellant should remain off work until 

further evaluation. In a December 21, 2017 progress note, he noted that appellant was seen first 

in November 2017 for a recurrence and exacerbation of her previous employment injury, which 

consisted of a right ankle contusion, abrasion, and sprain. Dr. Brilliant indicated that appellant 

was off work because of an exacerbation of the initial injury. He again diagnosed reflex 

sympathetic dystrophy. In a March 6, 2018 note, Dr. Brilliant related that appellant returned with 

continued right ankle problems, that she could not stand on it for any length of time, and that she 

had first injured the ankle over a year ago and following a contusion and crush injury she developed 

reflex sympathetic dystrophy which was accepted as relating to her initial injury for which she 

received treatment and was able to return to work. He opined her condition was a recurrence of 

the reflex sympathetic dystrophy which he noted is well documented. Dr. Brilliant reported that 

the employing establishment considered the condition to be a new injury.

By decision dated March 16, 2018, OWCP denied appellant’s occupational disease claim 

finding that the medical evidence of record was insufficient to establish a causal relationship 

between her right ankle reflex sympathetic dystrophy and the accepted employment factors of 

walking on a cement floor and standing, pulling, and pushing equipment to different places. It 

noted that she had preexisting conditions involving the same part of the body that occurred on 

December 28, 2016 under File No. xxxxxx324. OWCP commented that appellant had not 

provided medical evidence of her preexisting right ankle injury, and that such evidence was 

necessary as she had a preexisting condition. 

In an April 5, 2018 note, Dr. Brilliant again reported that appellant was first seen over a 

year prior for a contusion and possible break, from which she developed reflex sympathetic 

dystrophy. 

On May 7, 2018 appellant requested reconsideration. 

By decision dated August 2, 2018, OWCP denied modification of its prior decision finding 

that Dr. Brilliant’s latest opinion was insufficient to establish causal relationship. 

On September 24, 2018 appellant again requested reconsideration.

By decision dated September 28, 2018, OWCP denied merit reconsideration finding that 

appellant neither raised substantive legal questions nor included new and relevant evidence. 

The Board finds that this case is not in posture for decision. Pursuant to 20 C.F.R. 

§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was 
3

before OWCP at the time of its final decision. Decisions on claims are based on the written record, 

which may include forms, reports, letters, and other evidence of various types such as photographs, 

videotapes, or drawings.1 Evidence may not be incorporated by reference, nor may evidence from 

another claimant’s case file be used.2 Evidence contained in another of the claimant’s case files 

may be used, but a copy of that evidence should be placed into the case file being adjudicated. 3 

All evidence that forms the basis of a decision must be in that claimant’s case record.4

For a full and fair adjudication of appellant’s claim, the Board finds that the case records 

under OWCP File Nos. xxxxxx825 and xxxxxx324 must be combined.5 

The Board finds that OWCP’s decision dated March 16, 2018 referenced medical evidence 

that does not appear in the case record under OWCP File No. xxxxxx825. To date, OWCP has not 

combined the case records related to appellant’s claims, nor did it incorporate all referenced 

evidence relating to her preexisting and employment-related right ankle condition into the current 

case record.6 Because it neglected to include evidence of her previously accepted right ankle 

condition in the current case record (including evidence from OWCP File No. xxxxxx324), the 

Board is not in a position to make an informed decision regarding appellant’s claim.7

Therefore, the case shall be remanded to OWCP to consolidate evidence from OWCP File 

Nos. xxxxxx825 and xxxxxx324. Following this and any necessary further development deemed 

necessary, OWCP shall issue a de novo decision on appellant’s claim under OWCP File No. 

xxxxxx825.

8

 

1 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a 

(June 2011).

2

Id.

3

Id.

4

Id.

5

See K.T., Docket No. 17-0432 (issued August 17, 2018); L.Z., Docket No. 11-1415 (issued December 12, 2011).

6

See supra note 1 at Chapter 2.400.8c (February 2000) (noting cases should be doubled/combined when correct 

adjudication of the issues depends on frequent cross-reference between files).

7

See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issuedFebruary 10, 2016); 

M.C., Docket No. 15-1706 (issued October 22, 2015).

8

See M.M., Docket No. 17-1150 (issued January 28, 2018).
4

ORDER

IT IS HEREBY ORDERED THAT the September 28 and August 2, 2018 decisions of 

the Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this order of the Board.

Issued: October 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board