United States Department of Labor

Employees’ Compensation Appeals Board

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W.H., Appellant

and

DEPARTMENT OF THE AIR FORCE, AIR 

NATIONAL GUARD, Schenectady, NY, 

Employer

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Docket No. 19-0346

Issued: November 26, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 3, 2018 appellant filed a timely appeal from an October 30, 2018 decision 

of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as 19-0346.

This case has previously been before the Board.1 The facts and circumstances as set forth 

in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.

On January 3, 1996 appellant, then a 46-year-old aircraft mechanic foreman, filed a notice 

of traumatic injury (Form CA-1) alleging that he sustained a back injury while moving lockers 

while in the performance of duty. He stopped work on January 8, 1996 and worked intermittently 

before returning to full duty work on October 5, 1998. OWCP initially accepted lumbosacral strain 

and subsequently accepted displacement of a lumbar intervertebral disc without myelopathy and 

other acquired deformities of the ankle and foot, bilateral. On August 14, 1996 appellant 

underwent a hemilaminotomy and microdiscectomy at L4-5.2 By decision dated September 9, 

 

1 Docket No. 16-0715 (issued August 11, 2016); Docket No. 17-1390 (issued April 23, 2018).

2 Appellant was suspended without pay effective April 21, 2002 and terminated for cause effective 

September 12, 2002.
2

2019, OWCP denied appellant’s claim for a recurrence of disability, commencing 

September 20, 2006. Appellant requested reconsideration and by decision dated June 15, 2011, 

OWCP vacated the prior decision and accepted appellant’s recurrence claim. On October 8, 2014, 

OWCP proposed to rescind the June 15, 2011 acceptance of the recurrence claim. OWCP finalized 

the rescission by decision dated May 15, 2015. Appellant requested reconsideration, but by 

decision dated February 9, 2016, OWCP denied modification of its prior decision. On 

February 29, 2016, appellant appealed to the Board. By decision dated August 11, 2016, the Board 

found that OWCP improperly rescinded its acceptance of appellant’s recurrence claim .

3

 

On November 18, 2016 OWCP again accepted appellant’s claim for a recurrence of 

disability commencing September 20, 2006. However, on March 15, 2017, it again proposed to 

rescind its acceptance of appellant’s recurrence claim. By decision dated April 28, 2017, OWCP

finalized that rescission and by decision dated May 1, 2017 it denied appellant’s recurrence claim. 

On June 8, 2017 appellant appealed the April 28 and May 1, 2017 decisions to the Board. By 

decision dated April 23, 2018, the Board found that OWCP had met its burden of proof to rescind 

its acceptance of the September 20, 2006 recurrence claim. The Board further found that appellant 

had not met his burden of proof to establish a recurrence of total disability commencing 

September 20, 2006 and that appellant had not met his burden of proof to establish a recurrence of 

total disability commencing April 8, 2002 causally related to his January 3, 1996 employment 

injury.

4

 

In a letter dated July 13, 2017, which was during the pendency of appellant’s prior appeal 

to the Board, OWCP provided Dr. Kevin Scott, a Board-certified orthopedic surgeon who had 

provided a January 18, 2017 second-opinion evaluation, with an updated statement of accepted 

facts (SOAF). In the letter accompanying, the SOAF it asked that he provide a supplemental report 

regarding appellant’s lumbar condition. On July 27, 2017 OWCP received a July 18, 2017

addendum report from Dr. Scott in which he noted appellant’s 1996 employment injury and 

indicated that it had been his most significant injury. 

On August 17, 2018 appellant, through his then-representative, requested reconsideration 

and submitted additional medical evidence including several treatment notes from Dr. Paul 

Salerno, Board-certified in physical medicine and rehabilitation, dated May 1, 2017 to 

October 18, 2018. 

By decision dated October 30, 2018, OWCP denied modification of its April 28 and May 1, 

2017 decisions. It noted medical evidence submitted, but did not reference the July 18, 2017 report 

from Dr. Scott which was new evidence not previously considered by OWCP or the Board.

The Board has duly considered the matter and finds that this case is not in posture for a 

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

is obligated to consider all evidence properly submitted by a claimant and received by it before the 

final decision is issued. While OWCP is not required to list every piece of evidence submitted to 

the record, the record is clear that Dr. Scott’s July 18, 2017 report was received, but not reviewed 

 

3 Docket No. 16-0715, supra note 1.

4 Docket No. 17-1390, supra note 1.
3

by OWCP, prior to the issuance of its October 30, 2018 decision.5 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.6

The case must, therefore, be remanded for proper review of the all the evidence of record.

Following any necessary further development, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the October 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: November 26, 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

 

5

In the October 30, 2018 decision, OWCP merely noted that Dr. Scott had submitted a January 18, 2017 report that 

had previously been reviewed by the Board.

6 S.D., Docket No. 18-1507 (issued June 21, 2019).