United States Department of Labor

Employees’ Compensation Appeals Board

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M.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Waterford, MI, Employer

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Docket No. 18-1743

Issued: August 15, 2019

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

JANICE B. ASKIN, Judge

On September 20, 2018 appellant, through counsel, filed a timely appeal from a July 30, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards docketed this appeal as No. 18-1743. 

In its July 30, 2018 decision, OWCP reviewed the merits of the claim and found that the 

medical evidence of record failed to provide a well-rationalized medical opinion that appellant’s 

accepted employment-related conditions worsened to the point that she became totally disabled 

from work commencing December 16, 2016. 

 

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

The Board has duly considered the matter and notes that, in the case of William A. Couch,

2

it held that when adjudicating a claim, OWCP is obligated to consider all evidence properly 

submitted by a claimant and received by OWCP before the final decision is issued.

By decision dated October 12, 2016, OWCP accepted appellant’s December 4, 2015 claim 

for right shoulder calcific tendinitis.3 On December 27, 2016 appellant filed a notice of recurrence 

(Form CA-2a) alleging that commencing December 14, 2016, she sustained a recurrence of total 

disability due to her accepted right shoulder condition. 

The record reflects that on February 28, 2017 appellant underwent a right shoulder 

arthroscopic procedure which included decompression, partial claviculectomy, extensive 

debridement of the glenohumeral joint, and debridement of the labrum and partial rotator cuff 

tears. OWCP had not authorized the procedure at the time it was performed. 

By decision dated May 26, 2017, OWCP denied appellant’s claim for recurrence of 

disability. It noted that appellant had undergone the February 28, 2017 arthroscopic procedure, 

but found that the evidence was insufficient to establish that her current conditions were causally 

related to the accepted employment injury. On October 31, 2017 OWCP authorized the 

February 28, 2017 arthroscopic procedure.

On May 1, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

May 26, 2017 decision. 

In its July 30, 2018 decision, OWCP denied modification of appellant’s claim, finding that 

the medical evidence of record failed to provide a well-rationalized medical opinion that 

appellant’s accepted conditions worsened to the point that she became disabled from work 

commencing December 16, 2016 and continuing. In this decision OWCP did not acknowledge 

that it had accepted appellant’s February 28, 2017 arthroscopic procedure on October 31, 2017, 

which is subsequent to its May 26, 2017 decision.

The record is clear that in its July 30, 2018 decision OWCP did not address the evidence 

of record documenting its October 31, 2017 authorization of the February 28, 2017 right shoulder 

arthroscopic procedure and therefore it has not addressed whether this accepted procedure 

established a period of total disability after December 16, 2016. 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 properly submitted to OWCP be reviewed and addressed.4 Therefore, the case will be 

remanded to OWCP for proper review of the evidence, including documentation of the acceptance 

 

2 41 ECAB 548 (1990).

3 On December 4, 2015 appellant, then a 45-year-old rural carrier, filed an occupational disease claim (Form CA-2) 

alleging that on December 1, 2015 she sustained a right shoulder injury due to repetitive motions required in the 

performance of her federal employment. By decision dated March 10, 2016, OWCP initially denied appellant’s claim 

finding that she did not submit sufficient evidence to establish that her medical condition was causally related to the 

accepted factors of her federal employment. On August 15, 2016 appellant requested reconsideration of OWCP’s 

March 10, 2016 decision and submitted additional evidence. By decision dated October 12, 2016, OWCP vacated the 

March 10, 2016 decision and approved appellant’s occupational disease claim.

4 Supra note 2; see also B.H., Docket No. 17-0787 (issued July 6, 2018); see Yvette N. Davis, 55 ECAV 475 (2004).
3

of the surgical procedure, and following any necessary further development it shall issue a de novo

decision. Accordingly, 

IT IS HEREBY ORDERED THAT the July 30, 2018 decision of the Office of Workers’

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

this order of the Board.

Issued: August 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board