United States Department of Labor

Employees’ Compensation Appeals Board

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D.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, New York City, NY, 

Employer

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Docket No. 18-0121

Issued: June 11, 2018

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

ALEC J. KOROMILAS, Alternate Judge

On October 23, 2017 appellant, through counsel, filed a timely appeal from a September 5, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was 

docketed as No. 18-0121.2

 

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 On September 22, 2012 appellant, then a 49-year-old transportation security officer, filed a traumatic injury claim 

alleging that at 11:30 a.m. on September 18, 2012 he sprained a trapezoid muscle lifting a stack of bins. On the claim 

form an employing establishment supervisor indicated that a surveillance video was reviewed covering the time period 

10:00 a.m. to 12:30 p.m. on the day in question, and that the injury described was not seen. Appellant left work at 

12:30 p.m. On November 7, 2012 OWCP accepted that on September 18, 2012 appellant sustained sprain of the back, 

thoracic region, and sprain of shoulder and upper arm, rotator cuff. In a June 3, 2013 decision, that incorporated an 

April 8, 2013 notice of proposed rescission, OWCP rescinded acceptance of appellant’s claim, based on evidence 

submitted by the employing establishment. This included the surveillance DVD that it had reviewed. Following a 

July 16, 2013 hearing, by decision dated September 30, 2013, an OWCP hearing representative affirmed the June 3, 

2013 decision. The hearing representative also affirmed a March 18, 2013 decision denying three recurrence claims.
2

This case has previously been before the Board. In a July 10, 2014 order, the Board found 

the case not in posture for decision because the record submitted included a DVD purported to 

cover appellant’s work area from 10:00 a.m. to 12:30 p.m. on September 18, 2012, the date of 

injury. The DVD forwarded to the Board with the case record was not readable.3 The Board found 

that, in light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance of 

the claim,4the case was not in posture for decision as the record before the Board was incomplete. 

The Board remanded the case to OWCP to furnish a readable DVD and for further reconstruction 

and assemblage deemed necessary, to be followed by an appropriate de novo decision.5

Following remand, on August 13, 2014 OWCP asked the employing establishment to 

provide a readable DVD. In an August 21, 2014 decision, it rescinded acceptance of appellant’s 

claim. Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. A hearing was held on March 17, 2015. On June 3, 2015, an OWCP hearing 

representative affirmed the August 21, 2014 decision, and appellant thereafter appealed to the

Board. By order dated January 20, 2016, the Board again found the case not in posture for decision 

and remanded the case to OWCP because the DVD provided was not readable. The Board noted 

that the DVD was examined by the Board’s technical staff who found it to be unreadable. The 

Board also indicated that it appeared that OWCP had received two DVDs, one in 2013 and one in 

2015, and it was unclear which had been forwarded to the Board. Upon remand OWCP was to 

obtain a readable DVD, to be followed by an appropriate de novo decision.6

Following remand, on March 14, 2016 OWCP asked the employing establishment to 

forward the surveillance DVD. In a July 8, 2016 decision, OWCP rescinded acceptance of 

appellant’s claim. OWCP noted that it had reviewed a clear copy of a surveillance DVD covering 

10:00 a.m. to 12:30 p.m. on September 18, 2012 which did not demonstrate the truthfulness of 

appellant’s claim and did not support that an injury occurred as claimed. Appellant, through 

counsel, timely requested a hearing with OWCP’s Branch of Hearings and Review, that was held 

on March 15, 2017. On June 20, 2017 the employing establishment forwarded another 

surveillance DVD to OWCP. The transmittal documents included a photograph of the DVD that 

was forwarded which identified it as a Maxell DVD that had appellant’s name and OWCP file 

number affixed. By decision dated September 5, 2017, an OWCP hearing representative affirmed 

the July 8, 2016 decision. He noted his review of a surveillance DVD, indicating that it cast 

significant doubt that appellant experienced a work-related injury at the time, place, and in the 

manner alleged, and that the medical evidence submitted was insufficient to establish a medical 

condition caused by the claimed September 18, 2012 injury.

The Board again finds the case not in posture for decision because the record submitted to 

the Board continues to be incomplete. The DVD provided to the Board was examined by the 

Board’s technical staff who found it to be unreadable. The Board notes that the DVD furnished 

with appellant’s case record is a TDK DVD, and not a Maxell DVD, as was identified by the 

employing establishment with its June 20, 2017 transmittal. The Board’s technical staff indicated 

that the TDK DVD appeared to contain only an application file to be used to view content. There 

 

3 The Board’s technical staff reviewed the DVD and found it to be encrypted and unreadable.

4 Supra note 2.

5 Docket No. 14-244 (issued July 10, 2014). 

6 Docket No. 15-1863 (issued January 20, 2016).
3

was no content found on the DVD. In light of OWCP’s reliance on the surveillance DVD as 

evidence to rescind acceptance of this claim,7the Board finds this case is not in posture for 

decision. The Board, therefore, will again remand the case to OWCP to furnish a readable DVD. 

After securing a readable DVD and for further reconstruction and assemblage deemed necessary, 

OWCP shall issue an appropriate de novo decision.

IT IS HEREBY ORDERED THAT the September 5, 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: June 11, 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

 

7 Supra note 1.