United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.D., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION, Tallahassee, FL, Employer 

__________________________________________ 

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Docket No. 15-1403 

Issued: March 10, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On June 15, 2015 appellant filed an appeal from a May 27, 2015 merit decision of the 

Office of Workers’ Compensation Programs (OWCP) which affirmed a November 14, 2014 

decision terminating medical benefits effective November 16, 2014. The appeal was docketed as 

No. 15-1403.1

This case has previously been before the Board. In a November 23, 2011 decision, the 

Board vacated a February 3, 2011 OWCP decision and remanded the case to OWCP to refer 

appellant, an updated statement of accepted facts, and the medical evidence of record to an 

appropriate Board-certified specialist for an examination, diagnosis, and a rationalized opinion as 

 1

 Appellant submitted additional evidence with her appeal to the Board. The Board’s review is limited to 

evidence which was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-

1262 (issued December 5, 2012). 
2

to whether appellant sustained an injury on January 5, 2010 and, if so, did she have any 

concurrent disability for work on or after that date.2 Subsequent to the Board’s November 23, 

2011 decision, OWCP referred appellant to Dr. R. Derry Crosby, a Board-certified osteopath 

specializing in orthopedic surgery, for a second opinion evaluation. In reports dated February 27 

and April 19, 2012, Dr. Crosby advised that appellant sustained cervical and thoracic strains on 

January 5, 2010 and had appropriate treatment for the conditions. He indicated that her strains 

had resolved at the time of his examination on February 27, 2012. Dr. Crosby concluded that no 

treatment was indicated for appellant’s neck and thoracic region, and that she had no disability or 

need for restricted duty as far as the neck or thoracic spine were concerned. Following a 

May 11, 2012 initial denial, on January 22, 2013 OWCP accepted that appellant sustained 

thoracic and cervical sprains, ceased by February 27, 2012. By decision dated March 28, 2013, 

OWCP terminated appellant’s wage-loss compensation and medical benefits, effective 

February 27, 2012, because Dr. Crosby advised on February 27, 2012 that her cervical and 

thoracic sprains had resolved. In an August 4, 2014 decision, the Board found that OWCP met 

its burden of proof to terminate appellant’s wage-loss compensation effective February 27, 2012 

because she had no employment-related disability. The Board further found that OWCP did not 

meet its burden of proof to terminate appellant’s medical benefits because it had not provided her 

with a required pretermination notice.3 The law and facts of the prior Board decisions are 

incorporated herein by reference. 

On September 30, 2014 OWCP issued a notice of proposed termination of medical 

benefits, finding that, based on the opinion of Dr. Crosby, appellant no longer had residuals of 

the accepted neck and thoracic sprains. In correspondence dated October 22, 2014, appellant 

disagreed with the proposed termination, asserting that the medical evidence established 

continuing residuals.4 By decision dated November 14, 2014, OWCP finalized the termination 

of medical benefits, effective November 16, 2014. It found that the weight of the medical 

opinion evidence rested with Dr. Crosby. 

Appellant timely requested a review of the written record. She submitted treatment notes 

dated September 4 and October 22, 2012 in which Dr. Christopher S. Rumana, a Board-certified 

neurosurgeon, noted a chief complaint of neck and right arm pain, low back and leg pain, and 

reported that appellant had a slip and fall at work in 2010. He discussed neck examination 

findings and diagnosed thoracic myofasciitis/sprain and neck pain. Dr. Rumana indicated that 

appellant could be having myofascial neck pain or right cervical radiculopathy and 

 

 2 Docket No. 11-1166 (issued November 23, 2011). On January 5, 2010 appellant, a laundry supervisor, filed a 

traumatic injury claim, alleging that she was injured when she fell to the floor that day. She returned to regular duty 

on March 1, 2010 and submitted claims for intermittent compensation beginning February 23, 2010. On April 30, 

2010 OWCP denied the claim. In a September 28, 2010 decision, an OWCP hearing representative affirmed the 

April 30, 2010 decision. In a merit decision dated February 3, 2011, OWCP denied modification of the prior 

decisions. The record also indicates that on September 8, 2005 OWCP accepted aggravation of lumbar 

radiculopathy, adjudicated by OWCP under file number xxxxxx606. The instant claim was adjudicated under file 

number xxxxxx486. 

3

 Docket No. 13-1940 (issued August 4, 2014). 

4

 The letter indicated that 20 enclosures were included. However, the record contains no enclosures forwarded at 

that time. 
3

recommended a cervical magnetic resonance imaging (MRI) scan. In reports dated 

December 11, 2012 to July 28, 2014, Dr. Joshua E. Fuhrmeister, Board-certified in 

anesthesiology and pain medicine, noted a two-year history of neck pain which could be related 

to an employment injury, and that appellant had been in a motor vehicle accident in 2002. He 

described her complaints of neck and back pain and muscle aches and indicated that examination 

of the cervical spine demonstrated mild tenderness and mild-to-moderate limitation of range of 

motion. Dr. Fuhrmeister noted that a November 9, 2012 MRI study of the cervical spine showed 

minor disc bulging with no significant foraminal narrowing. He opined that appellant’s pain was 

likely multifactorial, including cervical radiculitis and chronic cervicothoracic spasms. 

By decision dated May 27, 2015, an OWCP hearing representative discussed 

Dr. Rumana’s reports and found the weight of the medical evidence rested with the opinion of 

Dr. Crosby. She affirmed the November 14, 2014 decision. 

The Board finds that this case is not in posture for decision. Appellant properly filed a 

timely request for review of the written record before the Branch of Hearings and Review. She 

submitted new and relevant medical evidence not previously considered. Specifically, appellant 

submitted numerous medical and diagnostic reports dated September 4, 2012 to July 28, 2014 

from Dr. Fuhrmeister and Dr. Rumana. While the hearing representative briefly mentioned that 

Dr. Rumana’s reports showed basically normal findings on examination, she did not mention 

Dr. Fuhrmeister’s reports at all.5

 Thus, OWCP did not review all evidence received prior to the 

issuance of the May 27, 2015 decision. 

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.6 Because 

OWCP did not consider the new medical evidence submitted by appellant, the Board cannot 

review such evidence for the first time on appeal.7

 The case will therefore be remanded to 

OWCP to enable it to properly consider all of the evidence. Following such further development 

as OWCP deems necessary, it shall issue an appropriate de novo final decision on the claim.8

 

 5 See William A. Couch, 41 ECAB 548 (1990) (OWCP is obligated to consider all evidence properly submitted by 

a claimant and received by it before a final decision is issued). 

6 Id. 

7 Supra note 1. 

8 See E.P., Docket No. 14-0278 (issued February 26, 2014). 
4

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

Compensation Programs dated May 27, 2015 is set aside and the case remanded for further 

proceedings consistent with this order of the Board. 

Issued: March 10, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board