United States Department of Labor

Employees’ Compensation Appeals Board

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G.F., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS AND BORDER PROTECTION, 

El Paso, TX, Employer

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Docket No. 22-0306

Issued: June 22, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On December 21, 2021 appellant filed a timely appeal from a November 23, 2021 merit 

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

Boards assigned Docket No. 22-0306.

On October 6, 2021 appellant, then a 49-year-old customs and border protection employee,

filed a traumatic injury claim (Form CA-1) alleging that on November 28, 2018 he injured his left 

foot when he fell while simulating a one-person lift during training in the performance of duty. 

On the reverse side of the claim form appellant’s supervisor indicated that he was injured in the 

performance of duty. Appellant did not stop work. OWCP assigned this claim OWCP File No.

xxxxxx296.

Appellant had previously filed a traumatic injury claim (Form CA-1) on May 9, 2018

alleging that he broke three toes on his left foot during a fall while participating in firearms training 

in the performance of duty. OWCP assigned this claim File No. xxxxxx648. On November 6, 

2018 it accepted this claim for nondisplaced closed fracture of the proximal phalanx of the left 

lesser toe. 
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In support of his claim, appellant submitted a report dated January 4, 2019 from

Dr. Gregory Lind, a family medicine specialist, wherein he noted that appellant was seen for a 

possible toe infection.

OWCP received hospital discharge instructions dated October 1, 2021, signed by a nurse, 

which listed appellant’s diagnosis as cellulitis of the fifth toe of the left foot.

In a letter dated October 6, 2021, appellant attested that on November 28, 2018 he was 

participating in lift training and fell face down. As he fell, he felt discomfort in his left foot and 

toes. Appellant related that he had previously broken his left toes during firearms training on 

May 8, 2018. On October 1, 2021 he went to the emergency room as during the past month his 

big toe swelled, and he could hardly walk anymore. At the emergency room appellant was told 

that his toe was broken, infected, and that there was dead tissue around it. He also submitted 

photographs of his toe.

In a letter dated October 7, 2021, a certified nurse practitioner diagnosed appellant’s 

condition as left foot second toe osteomyelitis. She also diagnosed appellant with lower extremity 

diabetic foot ulceration with infection and second toe hammertoe contracture deformity, which 

were confirmed by a magnetic resonance imaging (MRI) scan report. Appellant underwent 

surgery and was provided with work restrictions.

In a development letter dated October 18, 2021, OWCP advised appellant of the type of 

factual and medical evidence needed and provided appellant with a questionnaire. It afforded 

appellant 30 days to submit the necessary evidence.

Appellant submitted a response to OWCP’s questionnaire dated October 23, 2021. He 

stated that, although not immediately, he did mention his injury to his supervisor. Appellant 

affirmed that he previously injured his left toes and filed a traumatic injury claim in May 2018. 

He explained that he did not immediately tend to his foot because he had to take one of his officers 

to the hospital that day, but that he later saw his toes were bent and blistered. Appellant was told

that his toe infection had spread to his bone.

By decision dated November 23, 2021, OWCP accepted that the November 28, 2018

employment incident occurred, as alleged, but denied appellant’s claim, finding that he had not 

submitted medical evidence containing a medical diagnosis in connection with his accepted 

employment incident. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

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

decision.

Under its procedures, OWCP has determined that cases should be administratively 

combined where a new injury case is reported for an employee who previously filed an injury 
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claim for the same part of the body and where correct adjudication depends on cross-referencing 

between files.1

Appellant has a previously accepted claim under OWCP File No. xxxxxx648,for an injury 

on May 9, 2018, which also claimed injury to his left toes. However, appellant’s claims have not 

been administratively combined. Therefore, for a full and fair adjudication, the Board will remand 

the case to OWCP to administratively combine File Nos. xxxxxx296 and xxxxxx648. Following 

this and other such further development as deemed necessary, OWCP shall issue a de novo

decision.

IT IS HEREBY ORDERED THAT the November 23, 2021 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: June 22, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

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

(February2000). See alsoOrder RemandingCase, M.W., 20-1221 (issued July 6, 2021).