United States Department of Labor

Employees’ Compensation Appeals Board

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D.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

FACILITIES ENGINEERING COMMAND 

SOUTHWEST, San Diego, CA, Employer

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Docket No. 19-0340

Issued: October 22, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

JANICE B. ASKIN, Judge

On December 3, 2018 appellant, through counsel, filed a timely appeal from an August 28, 

2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards docketed the appeal as Docket No. 19-0340. 

On August 28, 2017 appellant, then a 46-year-old air conditioning equipment mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that, as he was leaving the jobsite, he rolled 

his right ankle on an uneven driveway and fell forward, reinjuring his neck and right shoulder

while in the performance of duty. OWCP assigned the case File No. xxxxxx721 and accepted 

right ankle sprain.

 

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

Appellant had previously filed a traumatic injury claim due to a May 25, 2017 employment 

injury that OWCP accepted for right shoulder joint sprain and cervical disc displacement. OWCP

assigned this case File No. xxxxx230. 

By decision dated January 30, 2018, OWCP denied appellant’s claim for compensation for 

the period commencing November 24, 2017 and continuing. On February 12, 2018 appellant, 

through counsel, requested a hearing before OWCP’s Branch of Hearings and Review. During the 

hearing, he asserted that his right ankle condition had resolved, but that when he fell on August 22, 

2017 he had aggravated his neck and right shoulder conditions which had been accepted under 

OWCP File No. xxxxxx230. OWCP’s hearing representative indicated that he would review both 

claim files before rendering his decision. 

By decision dated August 28, 2018, OWCP’s hearing representative denied the claim for 

disability compensation. He indicated that he had reviewed OWCP File Nos. xxxxxx721 and 

xxxxxx230 in rendering his decision and concluded that the medical evidence he had reviewed 

was insufficient to establish that the claimed disability was caused by the August 22, 2017 

employment injury. 

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

decision. In the August 28, 2018 decision, OWCP’s hearing representative referenced his review 

of the May 25, 2017 claim adjudicated by OWCP under File No. xxxxxx230, specifically noting

that he had reviewed medical evidence found in the prior claim file. 

OWCP’s procedures provide that cases should be administratively combined when correct 

adjudication of the issues depends on frequent cross-referencing between files.2 Appellant has 

claimed an aggravation of his accepted neck and shoulder conditions when he fell on 

August 22, 2017. OWCP only accepted an ankle sprain due to this injury. As noted, in the 

August 28, 2018 decision, OWCP’s hearing representative referenced appellant’s May 2017 

claim, adjudicated by OWCP File No. xxxxxx230, which was accepted for neck and shoulder 

conditions. 

As these files have not been administratively combined, the Board is unable to determine 

whether all pertinent evidence had been reviewed by OWCP in the instant claim to determine 

whether appellant established entitlement to the claimed period of disability.

The record before the Board does not contain the evidence from the May 25, 2017

traumatic injury claim, OWCP File No. xxxxxx230, thus precluding a full and proper adjudication 

of the claim for disability. The Board thus finds that the case is not in posture for decision as the 

record as provided by OWCP is incomplete and would not permit an informed adjudication of the 

case. The case must therefore be remanded to OWCP to administratively combine the File Nos. 

 

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

(February 2000).
3

xxxxxx230 and xxxxxx721 and for further reconstruction and development as it may deem 

necessary, to be followed by an appropriate decision.3

IT IS HEREBY ORDERED THAT the August 28, 2018 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: October 22, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

3

See T.M., Docket No. 18-0887 (issued February 21, 2019).