United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

California, PA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1667

Issued: March 8, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq. for 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 July 28, 2017 appellant, through counsel, filed a timely appeal from a June 16, 2017

merit decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed the 

termination of appellant’s wage-loss compensation effective October 4, 2016. Pursuant to 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

The Board, having duly considered the matter, concludes that the case is not in posture

for decision. The electronic integrated Federal Employees’ Compensation System (iFECS) case 

record contains a June 30, 2016 physical evidence receipt for three discs of surveillance videos 

obtained by the employing establishment’s Office of Inspector General (OIG). The surveillance 

videos reportedly showed appellant performing unreported private sector work as a janitor, tasks 

which purportedly exceeded his medical restrictions. In a July 15, 2016 letter, OWCP instructed

Dr. Victoria Langa, a Board-certified orthopedic surgeon and second opinion physician, to

review the surveillance video and reference it in answering questions posed by OWCP. Also, the 

July 15, 2016 statement of accepted facts (SOAF) provided to Dr. Langa extensively referenced 

 

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 activities shown on the surveillance video. Dr. Langa submitted an August 5, 2016 report 

based, in part, on a review of the case record, which included the three surveillance video discs. 

OWCP terminated appellant’s wage-loss compensation benefits, effective October 4, 2016, 

based on Dr. Langa’s August 5, 2016 opinion as the weight of the medical evidence. In the 

June 16, 2017 decision, an OWCP hearing representative affirmed the October 4, 2016 decision.

The three surveillance video discs, however, are not included in the case record transmitted to 

the Board. 

Section 501.2(c) of the Board’s Rules of Procedure,

2 provides that the Board has 

jurisdiction “to consider and decide appeals from final decisions of OWCP in any case arising 

under the [Federal Employees’ Compensation] Act.”

3

 Additionally, the Board’s review of the 

case is limited to the evidence which was before OWCP at the issuance of the final decision.4 

Since the record as transmitted to the Board does not contain evidence that OWCP relied upon in 

reaching its final decision, the Board is unable to properly “consider and decide” appellant’s 

claim. The June 16, 2017 decision of OWCP, therefore, must be set aside. The case is remanded 

to OWCP for reconstruction and proper assemblage of the case record including obtaining the 

three above-referenced surveillance video discs. Following this and such further development as 

OWCP deems necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the June 16, 2017 decision of the Office of 

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

consistent with this order of the Board.

 

2 20 C.F.R. § 501.2(c).

3 5 U.S.C. §§ 8101-8193.

4 See 20 C.F.R. § 501.2(c)(1).
3

Issued: March 8, 2018

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