United States Department of Labor

Employees’ Compensation Appeals Board

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D.M., Appellant

and

DEPARTMENT OF THE ARMY, 

DIRECTORATE OF EMERGENCY SERVICES, 

Fort Myer, VA, Employer

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Docket No. 20-0099

Issued: July 16, 2020 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On October 16, 2019 appellant filed a timely appeal from a July 16, 2019 nonmerit decision 

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

docketed the appeal as No. 20-0099.

The Board finds that the case is not in posture for decision and must be remanded to OWCP. 

In the case of William A. Couch,

1

the Board 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.

On March 1, 2018 appellant, then a 59-year-old security officer, filed a traumatic injury 

claim (Form CA-1) alleging that on February 18, 2018 he twisted his right ankle when he 

attempted to exit the narrow cage sitting compartment of a police car while in the performance of 

duty. He stopped work on February 20, 2018.

By decision dated April 16, 2018, OWCP accepted that the alleged incident occurred, but 

denied appellant’s claim, finding that he had not established a diagnosed medical condition in 

 

1 41 ECAB 548 (1990).
2

connection with the February 18, 2018 incident. It noted that he had not submitted medical 

evidence containing a firm diagnosis. OWCP further explained that, even if appellant submitted 

medical evidence containing a firm diagnosis, the medical evidence must also establish with 

rationalized medical opinion that the diagnosed condition was causally related to the accepted 

employment incident. 

OWCP continued to receive medical evidence. A note with an illegible signature dated 

February 20, 2018 requested that appellant be excused from work on that date.

In an attending physician’s report (Form CA-20) dated March 8, 2018, Dr. John Miller, a 

podiatrist, diagnosed right ankle sprain with tibia and Achilles conditions. He checked a box “Yes”

indicating his belief that the condition was caused or aggravated by the incident of February 18, 

2018, explaining that it occurred while in the line of duty. Dr. Miller recommended light-work 

restrictions until April 16, 2018.

In a letter dated April 11, 2018, Dr. Tanya Judd, a podiatrist, noted that appellant was being 

treated for a right ankle fracture and Achilles tendinitis. She observed that his most recent 

magnetic resonance imaging (MRI) scan demonstrated interval healing of the right ankle fracture 

and she recommended work restrictions.

In memoranda dated April 18 and May 22, 2018, Dr. Kimberly Beck, Board-certified in 

occupational medicine, recommended that appellant return to work with temporary restrictions.

A disability certificate, dated May 14, 2018, contained diagnoses of a right ankle fracture 

and left ankle sprain with a torn ligament. The signature was illegible. In a disability certificate 

dated July 10, 2018, Dr. Miller diagnosed lateral ankle pain/instability and recommended work 

restrictions. In a disability certificate dated August 15, 2018, Dr. Judd noted that appellant had 

been treated between February 22 and June 10, 2018 for a right foot stable longitudinal split partial 

tear of the peroneus longus with ankle instability and a two centimeter calcaneus ganglion cyst, as 

well as left foot peroneus longus tendonitis, a chronic complete tear of the anterior talofibular 

ligament, a nondisplaced fracture of the distal tibia, and Achilles tendinitis. She stated that his 

initial visit was on February 22, 2018 for consultation regarding an injury that occurred on 

February 18, 2018 when he exited a car at work and his foot twisted inward as it hit the ground. 

Disability certificates dated August 21 and November 20, 2018 contained diagnoses of right 

peroneal tendon tear and left sprained ligaments. The signatures were illegible.

In a letter dated February 26, 2019, Dr. Judd stated that appellant had been treated for 

diagnoses of right foot stable longitudinal split partial tear of the peroneus longus with ankle 

instability and a two centimeter calcaneus ganglion cyst, as well as left foot peroneus longus 

tendonitis, a chronic complete tear of the anterior talofibular ligament, a nondisplaced fracture of 

the distal tibia, and Achilles tendinitis.

In a memorandum dated March 7, 2019, Dr. Beck recommended continuation of current 

work restrictions.

On April 18, 2019 OWCP received appellant’s request for reconsideration of its April 16, 

2018 decision. On even date it received appellant’s February 1, 2019 response to OWCP’s 

development questionnaire in which he provided a narrative account of the February 18, 2018
3

incident. On April 18, 2019 OWCP also received non-scannable physical evidence consisting of 

three CDs. On April 26, 2019 it received a DVD.

By decision dated July 16, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence 

of error.

Appellant had one year from that decision, until Friday, April 16, 2019, to timely request 

reconsideration of the merits of his claim. As OWCP received his request for reconsideration on 

April 18, 2019, more than one year after the April 16, 2018 decision, his request was untimely 

filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying his 

claim for compensation.2

The Board finds that the case is not in posture for decision because OWCP did not review 

all of the evidence submitted with appellant’s untimely request for reconsideration. OWCP, in its 

July 16, 2019 decision, did not review the reports from Dr. Miller dated March 8, 2018, the 

April 18 and May 22, 2018, and March 7, 2019 reports from Dr. Beck, the February 26, 2019 

report from Dr. Judd, the CDs received on April 18, 2019, or the DVD received on April 26, 2019

to determine whether appellant had established clear evidence of error in the denial of his claim. 

For this reason, the case will be remanded to OWCP to enable it to properly consider all the 

evidence submitted at the time of the July 16, 2019 decision.3 Following such further development 

as OWCP deems necessary, it shall issue an appropriate decision. 

 

2

Id.

3 See I.L., Docket No. 19-0077 (issued July 26, 2019).
4

IT IS HEREBY ORDERED THAT the July 16, 2019 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: July 16, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees' Compensation Appeals Board