United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.D., Appellant

and

U.S. POSTAL SERVICE, OMAHA POSTAL 

DISTRIBUTION CENTER, Omaha, NE, 

Employer

__________________________________________

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Docket No. 20-1119

Issued: January 29, 2021

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On May 8, 2020 appellant, through counsel, filed a timely appeal from a November 14, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards assigned Docket No. 20-1119.

On May 4, 2016 appellant, then a 57-year-old mail processing clerk, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a right lower back injury on April 24, 2016 when he 

stood upright after sweeping mail on the second to bottom tier of a mail sorting machine while in 

the performance of duty.

Appellant has a prior traumatic injury claim regarding the lumbar spine. On June 3, 2015 

he filed Form CA-1 alleging that he sustained a low back injury on May 22, 2015 when loading 

 

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

mail from a nutting cart to a belt while in the performance of duty. OWCP assigned that claim 

File No. xxxxxx907. On June 29, 2015 it accepted that claim for right-sided sciatica. OWCP paid 

appellant wage-loss compensation, commencing July 11, 2015. On July 24, 2015 it expanded its 

acceptance of the claim to include a right-sided L5-S1 disc herniation. Appellant underwent an 

OWCP-authorized right L5-S1 lumbar microdiscectomy on September 24, 2015. OWCP paid him

wage-loss compensation through his return to full duty work on January 12, 2016.

In support of his claim in OWCP File No. xxxxxx449, appellant provided reports from

Dr. Douglas J. Long, a Board-certified neurosurgeon, dated from November 17, 2009 through 

May 18, 2016, diagnosing a right-sided L5-S1 disc herniation sustained on May 22, 2015, while 

at work and a right-sided L4-5 disc herniation sustained on April 24, 2016, while at work.

By decision dated June 24, 2016 in File No. xxxxxx449, OWCP denied appellant’s 

traumatic injury claim, finding that the medical evidence of record was insufficient to establish 

causal relationship between appellant’s diagnosed conditions and the accepted the April 24, 2016 

employment incident.

On June 28, 2016 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearing and Review. A hearing was held on 

February 6, 2017. During the hearing, counsel contended that appellant’s claims under OWCP 

File Nos. xxxxx449 and xxxxx907 should be doubled, to provide a complete and consistent 

medical and factual background for appellant’s claim under File No. xxxxx449. OWCP also 

received a July 2, 2016 report by Dr. Long, noting that the accepted April 24, 2016 employment 

incident caused a new disc herniation on the right at L4-5 with L5 nerve root displacement.

By decision dated March 28, 2017 in File No. xxxxxx449, OWCP’s hearing representative 

affirmed OWCP’s June 24, 2016 decision. He found that Dr. Long did not differentiate between 

the effects of the accepted May 22, 2015 lumbar disc displacement and September 24, 2015 

surgery accepted under File No. xxxxxx907 and the accepted April 24, 2016 employment incident 

under File No. xxxxx449.

On March 20, 2018 appellant, through counsel, requested reconsideration. He submitted a 

July 21, 2017 report by Dr. Long, who opined that bending over at work on April 24, 2016 

aggravated a preexisting disc herniation at L4-5.

By decision dated June 18, 2018, OWCP denied modification of the March 28, 2017

decision.

On June 17, 2019 appellant, through counsel, again requested reconsideration. He 

provided a May 20, 2019 report by Dr. Long, who opined that the April 24, 2016 employment 

incident unequivocally caused an acute lumbar pathology with right-sided sciatica.

In an October 10, 2019 letter, OWCP requested that Dr. Long submit a supplemental report 

discussing the relationship between the lumbar injury accepted under File No. xxxxx907 and in 

the present claim under File No. xxxxx449. It afforded Dr. Long 30 days to submit this evidence. 

OWCP did not receive additional evidence from Dr. Long within the period allotted.
3

By decision dated November 14, 2019, OWCP denied modification of its June 18, 2018 

decision, as Dr. Long’s May 20, 2019 report did not differentiate between the sequelae of the 

lumbar injury accepted under File No. xxxxx907 and the lumbar injury claimed under File No. 

xxxxx449.

The Board having duly considered the matter, finds that this case is not in posture for 

decision.

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

adjudication of the issues depends on cross-referencing between files and where two or more 

injuries occur to the same part of the body.

2

 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.3

In the instant case, appellant is alleging an April 24, 2016 lumbar injury in File No. 

xxxxxx449 following an accepted May 22, 2015 lumbar injury and surgery in File No. xxxxxx907. 

However, OWCP has not administratively combined the present claim with his prior claim 

pertaining to lumbar conditions.

For a full and fair adjudication, the Board finds that the November 14, 2019 decision must 

be set aside and this case remanded to OWCP to administratively combine OWCP File No. 

xxxxxx449 with OWCP File No.xxxxx907. Following this and other such further development as 

deemed necessary, OWCP shall issue a de novo decision.

 

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

(February 2000).

3

Id.; W.W., Docket No. 19-0884 (issued June 16, 2020); see P.B., Docket No. 19-1532 (issued April 30, 2020); 

L.H., Docket No. 18-1777 (issued July 2, 2019).
4

IT IS HEREBY ORDERED THAT the November 14, 2019 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: January 29, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board