United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

NORTHPORT VETERANS HOSPITAL, 

Northport, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1287 

Issued: March 25, 2015 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

On May 15, 2014 appellant, through counsel, filed a timely appeal of an April 15, 2014 

decision of the Office of Workers’ Compensation Programs (OWCP) concerning a loss of wageearning capacity (LWEC) determination. The Board docketed the appeal as No. 14-1287. 

The Board has duly considered the matter and notes that this case has previously been 

before the Board.1 In the most recent appeal, the Board set aside a nonmerit decision and 

remanded the case on October 25, 2013 for OWCP to perform a merit review on appellant’s 

request for modification of the November 22, 2006 LWEC determination.2

 On remand, 

 1

 On April 24, 1992 appellant, then a 26-year-old respiratory therapist, filed a traumatic injury claim alleging that 

she injured her back while lifting a patient on April 13, 1992. OWCP accepted the claim for cervical and 

lumbosacral sprains and herniated disc at L3-4 and L4-5. In Docket No. 95-619 (issued August 25, 1997) (the 

Board set aside and remanded the case for further development of the evidence); Docket No. 99-1516 (issued 

July 24, 2001) (the Board set aside and remanded the case for further development of the evidence); Docket No. 08-

1157 (issued June 16, 2009) (the Board affirmed an overpayment decision); Docket No. 09-1977 (issued June 10, 

2010) (the Board set aside a nonmerit decision and remanded for consideration of whether the LWEC determination 

should be modified); and Docket Nos. 11-514 & 11-654 (issued November 9, 2011) (the Board reversed a 

termination decision pursuant to 5 U.S.C. § 8106(c) and affirmed a decision denying modification of an LWEC). 

2

 Docket No. 13-1441 (issued October 25, 2013). 
2

appellant submitted an October 17, 2013 progress note and February 10, 2014 report from 

Dr. Sanford A. Ratzan, appellant’s treating Board-certified orthopedic surgeon, who diagnosed 

lumbosacral sprain, herniated lumbar disc, post-traumatic degenerative disc disease, cervical 

sprain, cervical radiculitis, and left hip trochanteric tendinitis and bursitis. Physical examination 

findings of the lumbosacral spine included 10 degrees extension, 20 degrees lateral bending and 

rotation, less than 70 degrees flexion, and 1 to 2+ lumbosacral paraspinal muscle spasm with 

bend and rotation. Dr. Ratzan opined that appellant was unable to perform part-time sedentary 

work based on her restrictions. Appellant’s work restrictions included up to 2 hours standing; up 

to 30 minutes of sitting; no more than a total of 2 hours per day of sitting, standing, and walking; 

no more than 2 hours total of moving from a sitting to a standing position; no repetitive standing 

or sitting; carrying up to 10 pounds; and less than 5 pounds of repetitive carrying. In his 

February 10, 2014 report, Dr. Ratzan stated that magnetic resonance imaging scans and x-ray 

interpretations from August 2010 and current studies revealed a chronic L4 and L4-5 herniated 

lumbar disc and disability. Based on the objective data and findings from prior reports, he 

opined that appellant is permanently disabled due to her lumbosacral spine condition from 

performing her date-of-injury job and “sedentary activities as noted.” 

By decision dated April 15, 2014, OWCP denied modification of the November 22, 2006 

LWEC determination. It found that appellant’s counsel did not raise new legal arguments as 

they were “substantially the same objections” previously considered. OWCP also found the 

medical evidence submitted insufficient to warrant modification as it was duplicative and 

considered in the November 29, 2010 decision. It noted that all of appellant’s preexisting and 

work-related conditions were discussed in prior decisions and that subsequent conditions need 

not be considered. 

Board precedent holds that OWCP must review all the evidence submitted by a claimant 

and received by OWCP prior to the issuance of a final decision.3

 As the Board’s jurisdiction is 

final as to the subject matter, it is crucial that OWCP accomplish this process of review.4

 

Because OWCP only mentioned Dr. Ratzan’s August 2, 2010 report in its April 15, 2014 

decision, it is clear to the Board that OWCP did not consider the two new medical reports dated 

February 10 and October 17, 2014 from Dr. Ratzan submitted by appellant in support of 

modification of the November 22, 2006 LWEC determination. Whether it receives relevant 

evidence on the date of the decision or several days prior, such evidence must be considered.5

 

As OWCP failed to address all the relevant evidence of record at the time it issued appellant’s 

April 15, 2014 decision it is set aside and the case is remanded for a proper review of the 

evidence and issuance of a de novo final decision as to the issue of whether appellant’s LWEC 

warrants modification. 

 3 See M.B., Docket No. 09-17 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda 

Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision); William A. 

Couch, 41 ECAB 548 (1990); 20 C.F.R. § 501.6(c). 

4 See id. 

5 Willard McKennon, 51 ECAB 145 (1999). 
3

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 15, 2014 is set aside and the case is remanded for further 

action consistent with this order of the Board. 

Issued: March 25, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board