United States Department of Labor

Employees’ Compensation Appeals Board

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W.D., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

AGENCY, New York, NY, Employer

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Docket No. 19-0961

Issued: March 31, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On April 1, 2019 appellant filed a timely appeal from an October 18, 2018 merit decision 

and January 7, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) under File No. xxxxxx923.1 The Clerk of the Appellate Boards docketed the appeal as 

No. 19-0961. 

On June 23, 2017 appellant, then a 56-year-old urban search and rescue task force 

specialist, filed a notice of recurrence (Form CA-2a) alleging that on March 21, 2017 he sustained 

a recurrence of an accepted December 28, 2012 occupational right shoulder injury under OWCP 

File No. xxxxxx635 when he reached backward to lift documents during a meeting while in the 

performance of duty. OWCP, however, converted the claim and processed it as one for a new 

injury, assigning the claim File No. xxxxxx923.

 

1 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 20, 

2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately 

be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0961 (issued 

August 20, 2020). 
2

Prior to appellant’s occupational disease claim (Form CA-2) in File No. xxxxxx923, 

OWCP had accepted a December 28, 2012 traumatic injury claim (Form CA-1) for a right upper 

extremity contusion, under File No. xxxxxx635, sustained when he slipped on ice and fell directly 

onto his right shoulder.

In reports dated September 20 and 25, 2017, Dr. Richard McCormack, a Board-certified 

orthopedic surgeon, noted appellant’s history of a December 28, 2012 employment-related right 

shoulder injury. He found that appellant’s symptoms worsened on March 21, 2017 after reaching 

quickly with his right arm while at work. Dr. McCormack diagnosed impingement syndrome of 

the right shoulder and a right rotator cuff strain. In a report dated November 16, 2017, he also 

diagnosed a right rotator cuff strain and superior glenoid labrum lesion.

By decision dated May 4, 2018, OWCP denied appellant’s traumatic injury claim, finding 

that the evidence of record failed to establish that his diagnosed conditions were causally related 

to the accepted March 21, 2017 employment incident.

In a letter dated and postmarked June 7, 2018, appellant requested a review of the written 

record before a representative of OWCP’s Branch of Hearings and Review. He submitted a June 6, 

2018 medical report from Dr. McCormack, who opined that the March 21, 2017 reaching incident 

likely strained or worsened a preexisting superior labrum anterior posterior (SLAP) tear.

By decision dated July 20, 2018, the hearing representative denied appellant’s request for 

a hearing as untimely filed, finding that his request was not made within 30 days of the May 4, 

2018 decision. He further indicated that he exercised his discretion, but determined that this issue 

in this case could equally well be addressed by a request for reconsideration before OWCP along 

with the submission of new evidence. OWCP administratively converted appellant’s request for 

a review of the written record to a request for reconsideration.

By decision dated October 18, 2018, OWCP denied modification as the evidence submitted 

on reconsideration was insufficient to warrant modification of its May 4, 2018 decision.

On November 6, 2018 appellant requested reconsideration.2 By decision dated January 7, 

2019, OWCP denied reconsideration, finding that appellant’s November 6, 2018 reconsideration 

request did not raise substantive legal questions or include new, relevant evidence.

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

decision. OWCP’s procedures provide that cases should be combined where correct adjudication 

depends on cross-referencing between files and where two or more injuries occur to the same part 

of the body.3 It accepted that appellant sustained an occupational right shoulder contusion under 

File No. xxxxxx635. However, OWCP denied appellant’s claim under File No. xxxxxx923 for a 

traumatic right shoulder condition caused by a March 21, 2017 employment incident superimposed 

 

2

In a November 1, 2018 letter, appellant indicated that an enclosed November 1, 2018 report by Dr. McCormack 

was sufficient to establish causal relationship. The imaged case record as presented to the Board does not contain the 

November 1, 2018 report.

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

(February 2000).
3

on the accepted contusion. For a full and fair adjudication, the claims in OWCP File Nos. 

xxxxxx635 and xxxxxx923 should be combined. 

Under its procedures, OWCP has determined that cases should be combined where a new 

injury case is reported for an employee who previously filed an injury claim for the same part of 

the body and where correct adjudication depends on cross-referencing between files.4 This will 

allow OWCP to consider all relevant claim files in developing appellant’s claim.5 

Accordingly, the Board will remand the case to OWCP to combine the case records for 

File Nos. xxxxxx635 and xxxxxx923. Following this and such further development as deemed 

necessary, OWCP shall issue a de novo decision on appellant’s claim.

IT IS HEREBY ORDERED THAT the January 7, 2019 and October 18, 2018 decisions 

of the Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP 

for further proceedings consistent with this order of the Board.

Issued: March 31, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

4

Id. at Chapter 2.400.8(c)(1); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-

1863, 17-1867, 17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket 

No. 14-1576 (issued March 9, 2015).

5

Id.