United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Buffalo, NY, Employer 

__________________________________________ 

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Docket No. 16-0375 

Issued: April 22, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 28, 2015 appellant, through counsel, filed a timely appeal from a July 31, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed since the last merit decision dated February 23, 2015 to the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

pursuant to 5 U.S.C. § 8128(a). 

Appellant, through counsel, contends on appeal that OWCP’s decision makes unfounded 

conclusions regarding the evidence and erred in concluding that a physician failed to sign a 

medical report. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On August 22, 2014 appellant, then a 54-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on July 29, 2014 she sustained a right shoulder injury 

after she unlocked a bed and felt burning pain in her right shoulder. 

By letter dated October 2, 2014, OWCP notified appellant that her claim was initially 

administratively handled to allow medical payments as her claim appeared to involve a minor 

injury resulting in minimal or no lost time from work. However, the merits of her claim had not 

been formally considered and her claim had been reopened because she had not returned to work 

in a full-time capacity. OWCP notified appellant that the evidence of record was insufficient to 

support her claim. Appellant was advised of the medical and factual evidence needed and was 

afforded 30 days to respond. 

In support of her claim, appellant submitted July 29 and August 12, 2014 medical notes, 

an August 24, 2014 magnetic resonance imaging (MRI) scan of the right shoulder, and 

September 15 and October 15, 2014 progress notes from a physician assistant. 

By decision dated November 13, 2014, OWCP denied appellant’s claim finding that the 

medical evidence of record failed to establish a firm medical diagnosis which could be 

reasonably attributed to the July 29, 2014 employment incident. 

By letter dated December 3, 2014, appellant requested reconsideration of OWCP’s 

decision and provided details pertaining to the July 29, 2014 employment incident and alleged 

employment injury. 

In support of her claim, appellant submitted progress notes dated July 29 through 

October 3, 2014 from Dr. Caroline E. Fernandez, Board-certified in internal medicine. She also 

submitted a July 30, 2014 x-ray of the right shoulder and physical therapy notes dated October 7 

through 23, 2014. 

By decision dated February 23, 2015, OWCP affirmed the November 13, 2014 decision, 

as modified, finding that the evidence of record failed to establish that her diagnosed condition 

was causally related to the accepted July 29, 2014 employment incident. 

By letter dated July 30, 2015, appellant, through counsel, requested reconsideration of the 

OWCP decision. Counsel noted submission of new medical evidence in the form of a June 30, 

2015 medical report from Dr. Matthew Landfried, a Board-certified orthopedic surgeon, in 

support of appellant’s traumatic injury claim. 

In a June 30, 2015 medical report, Dr. Landfried reported that he evaluated appellant on 

May 9, 2014 due to complaints of pain and discomfort in her shoulder after pushing a bed and 

experiencing a sudden onset of pain. He reported that appellant had been his patient since 2009 

and had no history of shoulder problems. Dr. Landfried explained that it was not unusual for 

chronic syndrome and bursitis or acromioclavicular (AC) joint arthrosis to develop pain after an 

injury. He did not believe that appellant’s impingement syndrome was due to other problems as 

the onset of symptoms occurred after the workplace incident. Dr. Landfried diagnosed AC joint 
3

arthritis with bursitis and partial rotator cuff tear. He opined that there was a direct relationship 

between the injury and the diagnosis. 

By decision dated July 31, 2015, OWCP denied appellant’s request for reconsideration 

finding that she neither raised substantive legal questions nor included relevant and pertinent 

new evidence. It noted that Dr. Landfried’s June 30, 2015 medical report was of no probative 

value and could not be considered medical evidence. OWCP found that the report contained an 

electronic signature by “Joann” and provided no basis to assume that the report was signed and 

completed by the physician. In the July 31, 2015 decision, the senior claims examiner noted: 

“Underneath the electronic signature on the note provided, it states, ‘electronically 

signed by agent of provider: Joann on [July 10, 2015] at 2:28.’ As such, there is 

no basis to assume that the report was indeed completed by the physician. It 

would appear that other persons have access to the physician’s electronic 

signature. Moreover, there is no indication that ‘Joann’ is a physician within the 

meaning of FECA. As such, the note cannot be regarded as medical evidence.” 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations at 20 C.F.R. § 10.606(b)(3) provide that the evidence or argument submitted by a 

claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of law; 

(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute 

relevant and pertinent new evidence not previously considered by OWCP.2 Section 10.608(b) of 

OWCP regulations provides that when an application for reconsideration does not meet at least 

one of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the 

application for reconsideration without reopening the case for a review on the merits.3

ANALYSIS 

The Board finds that this case is not in posture for decision. 

In its July 31, 2015 denial of appellant’s reconsideration request, OWCP noted that the 

only evidence submitted was a June 30, 2015 note from Dr. Landfried. It found that this report 

was irrelevant/immaterial and could not be regarded as medical evidence because it failed to 

contain a physician’s signature. Thus, OWCP denied merit review of her claim finding that she 

failed to submit any new and relevant medical evidence addressing causal relationship.4

Contrary to OWCP’s assertion, the Board finds that Dr. Landfried’s report contains a 

proper handwritten signature located directly above the signature line with his name. Moreover, 

the report was printed on the physician’s letterhead and contains sufficient indicia of 

 2 D.K., 59 ECAB 141 (2007). 

3 K.H., 59 ECAB 495 (2008). 

4 M.H., Docket No. 13-2051 (issued February 21, 2014). 
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identification concerning its author and authorship.5

 An electronic signature, or e-signature, is 

any electronic means that indicates that a person adopts the contents of an electronic message.6

 

Given that the report was signed by the physician and contains proper identification, the report is 

of probative value as the evidence establishes that it was created by Dr. Landfried.7

 Thus, the 

Board finds Dr. Landfried’s report to be relevant and pertinent new evidence not previously 

considered by OWCP and, therefore, sufficient to warrant further review of the case on the 

merits.8

The case will be remanded to OWCP for a decision on the merits of appellant’s claim. 

On remand, OWCP should consider Dr. Landfried’s June 30, 2015 medical report, together with 

the previously submitted evidence of record, to determine if appellant has established that she 

sustained a right shoulder injury in the performance of duty causally related to the accepted 

July 29, 2014 employment incident.9 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

 5 Cf. D.D., 57 ECAB 734-39 (2006); and Merton J. Sills, 39 ECAB 572, 575 (1988) (unsigned medical evidence 

with no adequate indication that it was completed by a physician is not considered probative medical evidence). 

6

 15 U.S.C. § 7001(a)(1) provides that a signature, contract, or other record relating to such transaction may not 

be denied legal effect, validity, or enforceability solely because it is in electronic form. 

7 Id.

8 See R.M., Docket No. 08-734 (issued September 5, 2008); Donald T. Pippin, 54 ECAB 631 (2003); E.R., 

Docket No. 09-1655 (issued March 18, 2010). 

9

 As the Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to the 

subject matter of the claim which was properly submitted to OWCP prior to the time of issuance of its final decision 

be reviewed and addressed by OWCP. See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 

ECAB 548 (1990) (OWCP did not consider new evidence received four days prior to the date of its decision); see 

Linda Johnson, 45 ECAB 439 (1994). Because OWCP did not consider the new medical evidence submitted by 

appellant, the Board cannot review such evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
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ORDER 

IT IS HEREBY ORDERED THAT the July 31, 2015 decision of the Office Workers’ 

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision of the Board. 

Issued: April 22, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board