United States Department of Labor

Employees’ Compensation Appeals Board

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B.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer

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Docket No. 18-0387

Issued: April 4, 2019

Appearances: Case Submitted on the Record

Stephanie N. Leet, 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

ALEC J. KOROMILAS, Alternate Judge

On December 15, 2017 appellant, through counsel, filed a timely appeal from a 

November 6, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

The Clerk of the Appellate Boards docketed the appeal as No. 18-0387.

OWCP accepted appellant’s May 13, 2004 traumatic injury claim for aggravation of 

cervical radiculopathy and an aggravation of cervical degenerative disc disease. Appellant did not 

return to work following the May 13, 2004 injury. OWCP paid wage-loss compensation 

commencing May 14, 2004. It placed him on the periodic compensation rolls as of 

August 30, 2009. By decision dated September 6, 2012, OWCP terminated appellant’s wage-loss 

compensation, effective that day, as his treating physician, Dr. Brian Foley, a physiatrist, had 

determined that he was no longer disabled from work due to the accepted conditions and was able 

 

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

to return to work as a mail processing clerk. Appellant’s claim remained open for medical 

benefits.2

On May 22, 2013 appellant filed a notice of recurrence of disability (Form CA-2a) alleging 

a worsening of his accepted work-related conditions as of October 3, 2012 and continuing. By 

decision dated December 5, 2013, OWCP denied appellant’s recurrence claim. Appellant 

requested reconsideration on April 28, 2014 and, by decision dated September 18, 2014, OWCP 

denied modification of its December 5, 2013 decision. Appellant again requested reconsideration

and, by decision dated February 3, 2016, OWCP denied modification of its September 18, 2014 

decision. 

OWCP subsequently received additional evidence including reports from Dr. Jill W. 

Donaldson, a Board-certified neurosurgeon, who requested authorization for a two-level anterior 

cervical discectomy and fusion C5-6 and C6-7. It also received an August 31, 2016 report from 

an OWCP medical adviser, who opined that the proposed cervical fusion surgery was medically 

necessary and causally related to the accepted medical conditions.3 On December 1, 2016 

appellant underwent an OWCP-approved two-level anterior cervical discectomy and fusion C5-6 

and C6-7, which Dr. Donaldson performed.

Appellant requested reconsideration on January 20, 2017 and submitted additional 

evidence, including appellant’s hospital record and postsurgical follow-up reports from

Dr. Donaldson pertaining to the December 1, 2016 surgery. 

By decision dated November 6, 2017, OWCP denied review of the merits of the claim,

finding the medical evidence cumulative in nature. It did not mention receipt of the August 31, 

2016 report from its medical adviser, who opined that the proposed neck spinal fusion surgery was 

medically necessary and causally related to the accepted injury, or the fact that appellant had 

undergone an OWCP-authorized two-level anterior cervical discectomy and fusion at C5-6 and 

C6-7 on December 1, 2016.

In the case of William A. Couch, the Board held that when adjudicating a claim, OWCP is 

obliged to consider all evidence received by OWCP before the final decision is issued.4

The Board finds that, since the underlying issue in this case is whether appellant has 

established a recurrence of disability commencing October 3, 2012 and continuing due to a 

worsening of the accepted conditions, the December 2016 surgical procedure appellant underwent 

would necessarily involve a period of disability. For these reasons, the case will be remanded to 

OWCP to enable it to properly consider all the evidence submitted at the time of the November 6, 

 

2 Appellant did not re-apply for employment with the employing establishment within 30 days as advised in 

OWCP’s September 6, 2012 termination decision.

3

In previous reports dated July 13 and August 26, 2016, the medical adviser opined that the proposed neck spinal 

fusion surgery was not medically necessary as the most recent MRI was dated April 3, 2013.

4 41 ECAB 548 (1990). 
3

2017 decision. Following such further development as OWCP deems necessary, it shall issue an 

appropriate decision on appellant’s recurrence claim.

IT IS HEREBY ORDERED THAT the November 6, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board.

Issued: April 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board