United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Racine, WI, Employer 

__________________________________________ 

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Docket No. 17-0526 

Issued: May 12, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 January 10, 2017 appellant, through counsel, filed a timely appeal of a November 22, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 The Board 

docketed the appeal as No. 17-0526.3

On March 18, 2016 appellant, then a 48-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right shoulder on December 29, 2015 due to 

repetitively reaching her arm out of her truck to “put mail in curbside box.” She explained that 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 In its November 22, 2016 decision, OWCP’s Branch of Hearings and Review affirmed the denial of appellant’s 

December 29, 2015 traumatic injury claim on the basis that she failed to establish the medical component of fact of 

injury. 

3

 The record provided the Board includes evidence received after OWCP issued its November 22, 2016 decision. 

On appeal, the Board is limited to reviewing the evidence that was before OWCP when it issued its final decision. 

20 C.F.R. § 501.2(c)(1). 
2

because of an unusual amount of snow on December 28, 2015, she was unable to get her work 

vehicle close to her mailboxes on December 29, 2015. As a result, she was required to reach out 

further to place mail into the mailboxes. Appellant indicated that the additional reaching 

required by the weather conditions caused pain in her right shoulder and arm. Because of her 

right upper extremity pain, she was unable to report for duty on December 30, 2015. Appellant 

reportedly first sought medical treatment for her condition on January 4, 2016. 

On March 28, 2016 appellant submitted her letter of resignation, which was effective 

April 8, 2016. In addition to filing her Form CA-1, she filed claims (Form CA-7) for intermittent 

wage loss from February 20 through April 1, 2016. 

The employing establishment indicated that it had not received notification of the alleged 

December 29, 2015 injury until March 29, 2016 and, consequently, it challenged appellant’s 

claim based on the delayed notification. The 90-day delay reportedly hampered its ability to 

investigate the circumstances/conditions that allegedly caused appellant’s claimed injury. The 

employing establishment further noted that appellant already had a claim for a shoulder injury 

(File No. xxxxxx164) for which she received compensation through February 19, 2016.4

 

Additionally, it noted that appellant had not submitted any medical documentation with her 

Form CA-1. 

By letter dated April 13, 2016, OWCP requested that appellant submit additional factual 

and medical evidence in support of her traumatic injury claim. It specifically inquired as to the 

reason for the delay in filing the claim. Appellant was afforded at least 30 days to submit the 

requested information. 

Appellant submitted a May 1, 2016 statement in which she again described the 

circumstances of the claimed December 29, 2015 employment injury and the medical treatment 

she received for her right shoulder beginning January 4, 2016. She also explained that her 

October 17, 2017 injury claim (File No. xxxxxx164) was never closed, and when she injured 

herself on December 29, 2015, she did not think to file a new injury form. When it was brought 

to her attention to fill out a new form, appellant was reportedly confused as to which form to 

submit (Form CA-1, CA-2 or CA-2a), so she completed them all. Management reportedly 

informed appellant that she could not submit all three forms, so she and management decided on 

Form CA-1. 

OWCP did not receive any medical evidence within the allotted time frame. In the 

interim, appellant had relocated to California and had not yet found a new treating physician. 

By decision dated May 31, 2016, OWCP denied appellant’s claim for a work-related 

right shoulder injury on December 29, 2015. It accepted that the December 29, 2015 incident 

occurred as alleged. However, it denied appellant’s traumatic injury claim because the record 

did not include any medical evidence containing a diagnosis in connection with the 

December 29, 2015 incident. OWCP specifically noted that medical evidence in appellant’s 

other claim (File No. xxxxxx164) could not be transferred to the current claim as none of the 

reports were specific to the claimed December 29, 2015 injury. 

 4

 The case record associated with File No. xxxxxx164 is not currently before the Board. 
3

Appellant disagreed with the May 31, 2016 decision and timely requested a review of the 

written record by a representative from OWCP’s Branch of Hearings and Review. She 

submitted a June 14, 2016 medical report in which Dr. David R. Ross, an attending Boardcertified orthopedic surgeon, advised that, beginning on January 4, 2016, he saw appellant 

several times through April 2016. Dr. Ross indicated that appellant did not initially provide him 

with a history of an injury for December 29, 2015. He diagnosed partial-thickness rotator cuff 

tear and biceps tendinitis, which was evident on a September 2015 magnetic resonance imaging 

(MRI) scan. Dr. Ross posited that appellant significantly exacerbated her underlying shoulder 

problem from her previous work-related injury due to repetitive reaching activities with her right 

shoulder on December 29, 2015, as she described in her May 1, 2016 statement. 

Appellant also submitted a February 22, 2016 progress note in which Dr. Ross discussed 

the findings of his examination on that date and diagnosed right shoulder pain, status post 

arthroscopy, distal clavicle excision, and subacromial decompression. 

In a decision dated November 22, 2016, OWCP’s hearing representative affirmed the 

May 31, 2016 decision denying appellant’s claim for a work-related right shoulder injury on 

December 29, 2015. She found that appellant did not submit a rationalized medical report 

relating her right shoulder condition to the implicated December 29, 2015 employment factor(s). 

The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R. 

§ 501.2(c)(1), 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. Decisions on claims are based on the written 

record, which may include forms, reports, letters, and other evidence of various types such as 

photographs, videotapes or drawings.5

 Evidence may not be incorporated by reference, nor may 

evidence from another claimant’s case file be used.6 Evidence contained in another of the 

claimant’s case files may be used, but a copy of that evidence should be placed into the case file 

being adjudicated.7 All evidence that forms the basis of a decision must be in that claimant’s 

case record.8

The hearing representative’s November 22, 2016 decision, which is the subject of the 

current appeal, includes extensive references to information associated with a prior claim of 

appellant, i.e., her claim for an October 17, 2014 shoulder injury (File No. xxxxxx164). The 

hearing representative referenced a number of reports which are not part of the current file, 

including reports of a Dr. Donald J. Zoltan and Dr. Ross. In particular, the hearing 

representative discussed a January 4, 2016 report of Dr. Ross from the earlier October 17, 2014 

traumatic injury claim. The hearing representative relied on these various reports in denying 

appellant’s current traumatic injury claim, as she mentioned in several parts of her decision that 

the reports from the earlier claim for an October 17, 2014 injury did not mention a December 29, 

2015 employment incident or injury. For example, in discussing the January 4, 2016 report of 

 5

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a 

(June 2011). 

6 Id.

7 Id.

8 Id.
4

Dr. Ross, the hearing representative noted that he made “no mention of the events claimed for 

December 29, [2015].” 

Although the hearing representative relied on the above-referenced information in 

denying appellant’s claim for a work-related traumatic injury on December 29, 2015, she 

neglected to include the referenced information from File No. xxxxxx164 in the current case 

record.9

 Because of this oversight, the Board is not in a position to make an informed decision 

regarding appellant’s claim that she sustained a traumatic right shoulder injury at work on 

December 29, 2015.10 

As the record lacks sufficient evidence for the Board to render an informed decision, the 

case shall be remanded to OWCP for further development. As noted, all evidence that forms the 

basis of a decision must be included in the case record.11 After OWCP has developed the record 

consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s 

claim for a December 29, 2015 traumatic right shoulder injury. 

 

 9

 At the conclusion of her analysis, the hearing representative advised that OWCP “may wish to combine both 

claims for future review.” However, no such combination of claims occurred prior to the issuance of the 

November 22, 2016 decision. 

10 See K.P., Docket No. 15-1945 (issued February 10, 2016); M.C., Docket No. 15-1706 (issued 

October 22, 2015). 

11 Supra note 5. 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 22, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: May 12, 2017 

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