United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Columbus, OH, Employer

__________________________________________

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Docket No. 19-1336

Issued: April 16, 2020

Appearances: Case Submitted on the Record

Stanley R. Stein,, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On May 30, 2019 appellant, through counsel, filed a timely appeal from a February 7, 2019 

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

Appellate Boards docketed the appeal as No. 19-1336.2

 

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 The Board notesthat appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows.

On February 23, 2009 appellant, then a 43-year-old part-time flexible mail clerk bent over 

a hamper to retrieve a bundle of mail flats and felt pain through his lower back. OWCP accepted 

the claim for lumbar and thoracic sprains and displacement of a lumbar intervertebral disc without 

displacement. On May 31, 2012 it expanded acceptance of the claim to include dysthymic 

disorder.

On January 11, 2013 appellant filed a wage-loss compensation claim (Form CA-7) for 

leave without pay for the period August 22, 2010 and continuing.

By decision dated May 13, 2015, OWCP denied the claim for compensation for the period 

August 22, 2010 through February 24, 2012. On May 27, 2015 appellant, through counsel, 

requested a hearing before an OWCP hearing representative. By decision dated April 21, 2016, 

OWCP’s hearing representative found that appellant had not met his burden of proof to establish 

that he was totally disabled for work for the period from August 22, 2010 to February 24, 2014 

causally related to the February 23, 2009 employment injury. 

On October 14, 2016 appellant, through counsel, filed an appeal with the Board.

By decision dated June 22, 2018,4the Board found that OWCP had not made findings as 

to appellant’s ability to work during the period August 22, 2010 to February 24, 2014, causally 

related to all of his accepted conditions, including his dysthymic disorder. The Board found the 

case was not in posture for decision and remanded the case to OWCP to obtain clarification from

Dr. Alan B. Levy, a Board-certified psychiatrist serving as a second opinion physician, regarding 

appellant’s ability to work during the period August 22, 2010 to February 24, 2014. The Board 

specifically noted that Dr. Levy had related in his May 2, 2014 report that appellant’s dysthymic

condition prevented him from working and had not improved, while he also reported that 

appellant’s condition had improved and no longer prohibited him from returning to work. 

By decision dated July 23, 2018, OWCP denied the claim for compensation for the period

from August 22, 2010 through February 24, 2012. Appellant, through counsel, requested a hearing 

before an OWCP hearing representative.

On February 7, 2019 OWCP reversed its July 23, 2018 decision with regard to the denial 

of compensation for the period from August 22, 2010 through February 24, 2012.

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

decision.

 

3 Docket No. 17-0035 (issued June22, 2018); Docket No. 13-0266 (issued October 24, 2013).

4

Id.
3

The Board has final authority to determine questions of fact and law. The Board’s 

determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon by 

the Director of OWCP.5 A decision of the Board is final upon the expiration of 30 days following 

the date of its order and, in the absence of new review by the Director, the subject matter is 

res judicata and not subject to further consideration by the Board.6

As indicated above, in the prior appeal, the Board found that the case was not in posture 

for decision with regard to whether appellant had met his burden of proof to establish a recurrence 

of total disability for the period from August 22, 2010 to February 24, 2014. By decision dated

February 7, 2019, OWCP reversed its July 23, 2018 decision finding that appellant was entitled to 

compensation for the period August 22, 2010 through February 24, 2012. However, the Board 

notes that the period of disability at issue upon remand from the Board was from August 22, 2010 

to February 24, 2014. The Board finds that OWCP failed to address the specific deficiencies the 

Board ordered it to address on remand.

7

Thus, the case must be remanded for consideration of appellant’s claim for a recurrence of 

total disability for the period from February 25, 2012 to February 24, 2014. Following such further 

development as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s

wage-loss compensation claim for the period from February 25, 2012 to February 24, 2014.

 

5 K.B., Docket No. 17-0969 (issued March 13, 2018); see Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976);

Anthony Greco, 3 ECAB 84 (1949). See also Frank W. White, 42 ECAB 693 (1991) (the Board’s order in a prior 

appeal imposed an obligation on the Director to take particular actions as directed); L.C., Docket No. 09-1816 (issued 

March 17, 2010) (OWCP did not follow the Board’s instructions); T.S., Docket No. 13-2135 (issued April3, 2014).

6

See K.B., id.; 20 C.F.R. § 501.6(d); ClintonE. Anthony, Jr., 49 ECAB 476, 479 (1998). There is no indication 

that a petition for reconsideration was filed within 30 days of the issuance of the Board’s June 22, 2018 decision and 

the decision became final after 30 days had elapsed. 20 C.F.R. § 501.6(d).

7 T.D., Docket No. 16-1883 (issued December 27, 2017).
4

IT IS HEREBY ORDERED THAT the February 7, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside in part and the case is remanded for further action 

consistent with this order of the Board.

Issued: April 16, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board