United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.E., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Decatur, GA, Employer 

__________________________________________ 

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Docket No. 17-1134 

Issued: September 19, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 2, 2017 appellant, through counsel, filed a timely appeal from a December 12, 

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

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of this case.3

 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

 5 U.S.C. § 8101 et seq. 

3

 The Board notes that, following the December 12, 2016 decision, appellant submitted new evidence. However, 

the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 

C.F.R. § 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 

ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

ISSUE 

The issue is whether appellant met her burden of proof to establish a traumatic injury 

causally related to the accepted April 30, 2015 employment incident. 

FACTUAL HISTORY 

On May 14, 2015 appellant, then a 37-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on April 30, 2015 she sustained lower back pain when she 

helped a patient lift his legs back into bed after he had been sitting in a chair. She did not stop 

work. 

In a May 11, 2016 report, Dr. Ronnie D. Shade, a treating Board-certified orthopedic 

surgeon, reported that appellant was first seen on May 11, 2016 for a work injury that occurred 

on April 30, 2015. Appellant had explained that she felt sharp spasms in her back and neck 

while lifting a patient’s legs to help him return to bed. Dr. Shade provided examination findings 

and reviewed diagnostic tests. Physical findings included decreased cervical bilateral rotation, 

suprascapular tenderness, normal left motor examination, decreased right motor examination, 

negative Tinel’s sign, normal cervical sensation, bilateral iliolumbar tenderness, bilateral 

spinolumbar spasms, normal lumbar motor examination, decreased right sensation deficits, 

negative straight leg raises, and normal left sensation. Dr. Shade diagnosed cervical and lumbar 

ligament sprains, right upper extremity cervical radiculopathy, and right lower extremity lumbar 

radiculitis. 

Dr. Shade reported in a letter dated May 12, 2016, that appellant was first seen on 

May 11, 2016. He provided physical examination findings. Dr. Shade noted that appellant was 

performing her usual duties when she injured herself on April 30, 2015 when she “went under a 

sink after a patient pushed her.” A physical examination revealed decreased cervical bilateral 

rotation, suprascapular tenderness, normal left motor examination, decreased right motor 

examination, negative Tinel’s sign, normal cervical sensation, bilateral iliolumbar tenderness, 

bilateral spinolumbar spasms, normal lumbar motor examination, decreased right sensation 

deficits, negative straight leg raises, and normal left sensation. Dr. Shade found normal C2-6 

cervical lordosis, right lumbar scoliosis, severe spondylitis, and normal lumbar lordosis on 

review of x-ray interpretations. He diagnosed cervical and lumbar ligament sprains, right upper 

extremity cervical radiculopathy, and right lower extremity lumbar radiculitis. 

In an October 17, 2016 report, Dr. Shade diagnosed cervical, thoracic, and lumbar 

ligament sprains, right upper extremity cervical radiculopathy, right lower extremity lumbar 

radiculitis, L3-4, 4-5 lumbar herniated nucleus pulposus, and mild L4-5 lumbar stenosis. Review 

of magnetic resonance imaging (MRI) scans of the cervical and lumbar spines revealed C6-7 

minimal spondylosis, mild L4-5 spinal stenosis, right L4 and L5 nerve roots encroachment on 

exiting, and L3-4, 4-5 disc extrusion. Dr. Shade related that there was no change in appellant’s 

physical examination findings. 

On October 17, 2016 appellant filed a claim for a recurrence of medical treatment only 

due to the April 30, 2015 employment incident. She noted the date of recurrence as 

April 29, 2016. 
3

In a letter dated November 10, 2016, OWCP informed appellant that the merits of her 

original claim had not been adjudicated as her injury initially appeared to be minor and there was 

minimal or no lost time from work. It advised her that the claim was reopened for a review on 

the merits based on her filing of a recurrence claim. Next, OWCP advised appellant of the 

medical and factual evidence required to support her claim. Appellant was afforded 30 days to 

provide the requested evidence. 

OWCP received several documents on December 12, 2016. 

In an undated narrative statement, appellant explained that her original injury occurred on 

April 30, 2015 while she was assisting a patient with dressing and getting into bed. At that time 

she felt a sharp pain in her back and right hip. Appellant noted that she thereafter transferred 

from the employing establishment in Decatur, Georgia, to Dallas, Texas, where she still worked 

as a medical support assistant in the emergency department. She explained that on April 29, 

2016 she was performing her normal duties, while sitting at her workstation, when she felt neck, 

back, right leg, and right arm pain. Appellant related that a week later she was still in pain, and 

that is when she first sought treatment with Dr. Shade. She also described problems with her 

right wrist which arose on July 4, 2016. 

OWCP received a witness statement, dated December 4, 2016, from a coworker, S.W. A 

position description and a photograph of a printer were also received into the record. 

Dr. Shade, in a December 5, 2016 report, noted details surrounding the April 30, 2015 

incident. He explained that the repeated flexion and extension of appellant’s neck due to her job 

duties caused her neck spasms and chronic pain. Dr. Shade then noted the principles of 

causation as defined by mechanistic or biomechanical studies, cohort study, crossover or 

interventional studies, and heuristic model for causation. He opined that appellant’s cervical and 

lumbar conditions should be accepted by OWCP as the lumbar injury was post-traumatic while 

the cervical condition was occupational and had been aggravated by the traumatic injury. 

By decision dated December 12, 2016, OWCP denied appellant’s claim. It found that the 

evidence of record established that the April 30, 2015 incident occurred as alleged, but denied 

the claim as the medical evidence of record failed to establish that the diagnosed conditions were 

causally related to the accepted employment incident. The claims examiner noted that on 

November 10, 2016 appellant had been advised that further medical evidence was necessary to 

establish the claim, but the only evidence received was her personal statement. 

LEGAL PRECEDENT 

It is well established that OWCP shall determine and make findings of fact in making an 

award for or against payment of compensation after considering the claim presented by the 

employee and after completing such investigation as OWCP considers necessary with respect to 

the claim.4 Since the Board’s jurisdiction in a case is limited to reviewing that evidence which 

was before OWCP at the time of its final decision, it is necessary that OWCP review all evidence 

submitted by a claimant and received by OWCP prior to the issuance of its final decision. As the 

 4 See Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. § 10.126. 
4

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

relevant to that subject matter, which was properly submitted to OWCP prior to the issuance of 

the final decision, be addressed by OWCP.5

ANALYSIS 

Appellant alleged that she injured her back and right hip as a result of an April 30, 2015 

work incident. By decision dated December 12, 2016, OWCP accepted that the April 30, 2015 

incident occurred as alleged, but denied her claim because the medical evidence of record was 

insufficient to establish a medical diagnosis causally related to the accepted incident. 

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

Following OWCP’s November 10, 2016 letter to appellant requesting additional 

evidence, she submitted responsive factual and medical evidence. This additional evidence was 

received by OWCP on December 12, 2016. In its December 12, 2016 decision, OWCP denied 

appellant’s claim noting that following the November 10, 2016 development letter it had only 

received her personal response, but no medical evidence. It did not note receipt or consideration 

of Dr. Shade’s December 5, 2016 report, or the other documents submitted on 

December 12, 2016. 

The Board finds that OWCP, in its December 12, 2016 decision, did not review all of the 

evidence submitted on December 12, 2016, including the new report from Dr. Shade, prior to 

issuance of its final decision.6 For this reason, the case will be remanded to OWCP to consider 

all of the evidence submitted at the time of the December 12, 2016 decision. Following such 

further development as OWCP deems necessary, it shall issue an appropriate merit decision on 

the claim. 

CONCLUSION 

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

 5 S.P., Docket No. 16-0253 (issued March 23, 2016); William A. Couch, 41 ECAB 548 (1990). 

6 Id. 
5

ORDER 

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

Compensation Programs dated December 12, 2016 is set aside and this case is remanded for 

further proceedings consistent with this decision of the Board. 

Issued: September 19, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board