United States Department of Labor

Employees’ Compensation Appeals Board

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E.T, Appellant

and

DEPARTMENT OF THE NAVY, 

COMMANDER, NAVY INSTALLATIONS 

COMMAND, San Diego, CA, Employer

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Docket No. 22-0701

Issued: August 29, 2022

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

JAMES D. MCGINLEY, Alternate Judge

On April 6, 2022 appellant filed a timely appeal from a March 8, 2022 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of Appellate Boards 

docketed the appeal as Docket No. 22-0701.

2

On November 8, 2021 appellant, then a 70-year-old general business and industry 

specialist, filed an occupational disease (Form CA-2) alleging that he developed shortness of 

breath and lung disease due to factors of his federal employment including exposure to asbestos. 

He noted that he had a history of chronic obstructive pulmonary disease (COPD) since 2007. 

1 The Board notes that following the March 8, 2022 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.

2 The Board notes that, while this appeal was pending, OWCP issued a July 5, 2022 decision, which modified the 

March 8, 2022 decision finding that the evidence was sufficient to establish the alleged employment exposure, but 

denied the claim as the medical evidence did not establish causal relationship between the diagnosed conditions and 

the accepted employment factors. OWCP may not simultaneously have jurisdiction over the same issue. 

Consequently, the July 5, 2022 decision is set aside as null and void. See 20 C.F.R. § 10.626; see also A.C., Docket 

No. 18-1730 (issued July 23, 2019); M.C., Docket No. 18-1278, n.1 (issued March 7, 2019); RussellE. Lerman, 43 

ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
2

Appellant noted that he first became aware of his current condition and realized its relation to his 

federal employment on October 25, 2021. He retired from the employing establishment on 

November 5, 2021.

By decision dated March 8, 2022, OWCP denied appellant’s occupational disease claim, 

finding that he had not submitted factual evidence to establish that the employment exposures 

occurred as alleged. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

The Board has duly considered the matter and concludes 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 frequent cross-referencing between files.3 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. 4 Herein, appellant has a previously 

accepted claim for extrinsic asthma, a pulmonary condition, as causally related to occupational 

exposures under OWCP File No. xxxxxx493, which is also at issue in the present claim under 

OWCP File No. xxxxxx814. For a full and fair adjudication, this case must be returned to OWCP 

to administratively combine the current case record with OWCP File No. xxxxxx493, so it can 

consider all relevant claim files and accompanying evidence in adjudicating his current 

occupational disease claim.5

Following this and other such further development as OWCP deems necessary, it shall 

issue a de novo decision.

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

(February2000).

4

Id.; M.L.,Docket No. 20-1176 (issued April29, 2021); L.M.,Docket No. 19-1490 (issued January 29, 2020); L.H.,

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

5

Supra note 3 at Chapter 2.400.8(c)(1); W.D.,Docket No. 19-0961 (issued March 31, 2021); L.P.,Docket Nos. 18-

1558, 18-1568 (issued June 21, 2019).
3

IT IS HEREBY ORDERED THAT the March 8, 2022 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: August 29, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board