United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Elizabethtown, KY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket Nos. 17-1586 & 

17-1648

Issued: February 7, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On July 14, 2017 appellant, through counsel, filed a timely appeal from a June 14, 2017 

merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No. 

xxxxxx598.

2 On July 25, 2017 appellant, through counsel, filed a timely appeal from a July 5, 

2017 merit decision of OWCP under OWCP File No. xxxxxx362.3 The Board finds that these

cases are not in posture for decision.

 

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 Clerk of the Appellate Boards assigned the July 14, 2017 appeal Docket No. 17-1586.

3 The Clerk of the Appellate Boards assigned the July 25, 2017 appeal Docket No. 17-1648. 
2

On October 2, 2015 appellant, then a 50-year-old rural mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 1, 2015 she injured her right shoulder and forearm in 

the performance of duty.

4 OWCP assigned that claim File No. xxxxxx598. 

By decision dated November 12, 2015, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the October 1, 2015 employment incident 

occurred, as alleged. Appellant subsequently requested reconsideration, but by decisions dated 

June 29 and November 23, 2016 and June 14, 2017, OWCP denied modification of its prior 

decision.

On November 10, 2015 appellant filed an occupational disease claim (Form CA-2) alleging 

that she sustained osteoarthritis, bursitis, and tendinosis of the right shoulder in the performance 

of her duties. OWCP assigned that claim File No. xxxxxx362. Appellant indicated that she first 

became aware of her claimed condition and realized its relation to her federal employment on or 

about October 28, 2015.5 On the reverse side of the claim form, appellant’s supervisor noted that 

appellant stopped work on October 2, 2015 and had not returned, and the medical evidence 

submitted by her in support of her claim discussed an October 1, 2015 fall at work which caused 

injury to her arm and shoulder. By decision dated January 20, 2016, OWCP denied appellant’s 

claim, finding that the evidence of record was insufficient to establish that the claimed work 

event(s) occurred as described. It noted that it was unclear as to when she claimed factors of 

employment contributed to her injury. Appellant subsequently requested reconsideration. By 

decision dated June 21, 2016, OWCP modified the January 20, 2016 decision to find that it had 

accepted that appellant’s work included casing mail and flats, pulling on 700 mailboxes daily, and 

carrying parcels weighing up to 70 pounds. However, the claim remained denied as the evidence 

of record was insufficient to establish causal relationship between those accepted work factors and 

appellant’s diagnosed medical conditions. Appellant again requested reconsideration, but in its 

July 5, 2017 decision, OWCP denied modification.

The record in OWCP File No. xxxxxx362 does not contain any development of appellant’s 

claim in OWCP File No. xxxxxx598. Likewise, the record in OWCP File No. xxxxxx598 does 

not contain any development of appellant’s claim in OWCP File No. xxxxxx362. In light of the 

fact that appellant had identified the same claimed pain and shoulder trauma in both OWCP File 

Nos. xxxxxx598 and xxxxxx362, it is essential for OWCP to consolidate the claim files and

determine whether they are duplicate claims. This will allow OWCP to consider all relevant claim 

files in developing appellant’s claims. Moreover, to consider appellant’s appeals at this stage 

would involve a piecemeal adjudication of the issues in appellant’s claims and raise the possibility 

 

4 On December 17, 2015 OWCP received in File No. xxxxxx598 an undated handwritten statement from appellant. 

Appellant explained that, when she walked through the door after parking her employing establishment vehicle to 

reload, her foot got caught on a tray of mail. She threw her right arm out to catch a step, but missed, and her right arm 

took the brunt of the fall, causing injury to her right arm and shoulder.

5 On December 17, 2015 OWCP received in File No. xxxxxx362, the same undated narrative statement that was 

received in File No. xxxxxx598, wherein appellant explained that, when she walked through the door after parking 

her employing establishment vehicle to reload, her foot got caught on a tray of mail. Appellant threw her right arm 

out to catch a step, but missed, and her right arm took the brunt of the fall, causing injury to her right arm and shoulder. 
3

of inconsistent results. It is the Board’s policy to avoid such an outcome.6 Because it is essential 

for the Board to review the medical evidence contained in both case files in order to render a full 

and fair adjudication of the present appeals, this case will be set aside and remanded to OWCP to 

consolidate OWCP File No. xxxxxx362 with OWCP File No. xxxxxx598. Reconstruction of the 

record will be followed by any necessary further development and a de novo decision on the merits 

of the claims, in order to protect appellant’s appeal rights.7 

IT IS HEREBY ORDERED THAT the July 5 and June 14, 2017 decisions of the Office 

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

consistent with this order. 

Issued: February 7, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

6 See William T. McCracken, 33 ECAB 1197 (1982). 

7 On remand, OWCP should review the evidence in both case files to determine whether appellant’s claim in File 

No. xxxxxx362 constitutes a claim for a new injury or is a duplicate of the claim adjudicated under File No. 

xxxxxx598.