United States Department of Labor

Employees’ Compensation Appeals Board

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S.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Pittsburgh, PA, 

Employer

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Docket No. 19-1737

Issued: April 7, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On August 16, 2019 appellant, through counsel, filed a timely appeal from a May 3, 2019

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the 

Appellate Boards assigned Docket No. 19-1737.

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

decision.

 

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 notes that following the May 3, 2019 decision, OWCP received additional evidence. 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

On December 14, 2015 appellant, then a 32-year-old casual mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he sustained an injury to his right index finger 

as a result of automated postal center (APC) shelves dislodging and slamming his right index finger 

while in the performance of duty. On February 18, 2016 OWCP accepted the claim for rupture of 

the right ulnar collateral ligament.

On May 2, 2018 appellant filed a claim for a schedule award (Form CA-7). In support of 

his claim, he submitted a June 16, 2018 report from Dr. Robert W. Macht, a general surgeon, in 

which he calculated that appellant had two percent permanent impairment of his right upper 

extremity under the sixth edition of the American Medical Association, Guides to the Evaluation 

or Permanent Impairment (A.M.A., Guides).

3

On September 10, 2018 OWCP referred appellant’s case to Dr. Jovito Estaris, Boardcertified in occupational medicine, serving as an OWCP district medical adviser (DMA). 

Dr. Estaris calculated in his September 16, 2018 report that appellant had one percent permanent 

impairment of the right upper extremity. The DMA explained that the discrepancy between his 

and Dr. Macht’s impairment ratings were due to the use of a different diagnosis. Dr. Macht chose 

the diagnosis of joint dislocation or sprain, but the criteria for a class 1 finger PIP joint dislocation 

or sprain was less than 10 degrees of instability. His examination of the index finger demonstrated 

no laxity of the index or middle fingers, and thus, the DMA related that Dr. Macht’s use of the 

joint dislocation or sprain diagnosis was incorrect. The DMA explained that the proper diagnosis

was sprain/strain of the finger with residual pain and normal motion.

By decision dated November 9, 2018, OWCP granted appellant a schedule award for one

percent permanent impairment of the right upper extremity. The award covered a period of 3.12 

weeks from June 11 through July 2, 2018.

On November 15, 2018 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review.

The hearing was held on March 20, 2019. The hearing representative held the record open 

for 30 days for the submission of additional evidence.

By letter dated March 28, 2019, received by OWCP on April 1, 2019, Dr. Macht responded 

to the DMA’s September 16, 2018 report. He explained that under the sixth edition of the A.M.A., 

Guides, there was no reason to use the generalized sprain/strain diagnosis found on page 392 when 

the accurate diagnosis could be rated based upon the table on page 393. Dr. Macht noted that

pursuant to the sixth edition of the A.M.A., Guides, a class 1 impairment could be rated with less 

than 10 degrees instability and residual findings, and that appellant had a class 1C impairment, 

yielding 2 percent RUE permanent partial impairment for the specific diagnosis of right proximal 

interphalangeal index joint sprain.

By decision dated May 3, 2019, OWCP’s hearing representative affirmed the November 9, 

2018 decision. The hearing representative reviewed the case record, including the June 16, 2018 

report of Dr. Macht and the September 16, 2018 DMA’s report. OWCP’s hearing representative 

 

3 A.M.A., Guides (6th ed. 2009).
3

found that “no additional medical evidence from Dr. Macht clarifying his calculations ha[d] been 

received” and “[appellant] may wish to have Dr. Macht review and comment on the DMA’s 

report.”

Having reviewed the case record submitted by OWCP, the Board finds that this case is not 

in posture for decision.4

In the case of William A. Couch,

5

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.

In its May 3, 2019 decision, OWCP’s hearing representative affirmed the November 9, 

2018 decision granting appellant a schedule award for one percent permanent impairment of the 

right upper extremity. While the May 3, 2019 decision discussed other medical reports of record, 

it failed to acknowledge the March 28, 2019 letter from Dr. Macht, responding to the DMA’s 

September 16, 2018 report.

6

 As OWCP did not note receipt or consideration of this medical report, 

it failed to follow its own procedures by properly discussing the relevant medical reports of record. 7

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 which was properly submitted to OWCP prior 

to the time of issuance of its final decision be reviewed and addressed by OWCP.8 Because OWCP 

failed to consider Dr. Macht’s March 28, 2019 report, the Board cannot review such evidence for 

the first time on appeal.9

For these reasons, the case will be remanded to OWCP to properly consider all of the 

evidence of record.10 Following this and other such further development as deemed necessary, 

OWCP shall issue a de novo decision.11 Accordingly,

 

4

See K.F., Docket No. 19-0888 (issued January 2, 2020); J.J., Docket No. 13-1666 (issued August18, 2014).

5

41 ECAB 548, 553 (1990).

6

See R.P., Docket No. 19-0301 (issued August 21, 2019).

7 All evidence submitted should be reviewed and discussed in the decision. Evidence received following 

development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be 

referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 

2.1401.5(b)(2) (November 2012).

8

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also Linda 

Johnson, 45 ECAB 439 (1994) (applying Couch where OWCP did not consider a medical report received on the date 

of its decision).

9

20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

10 M.J., Docket No. 18-0605 (issued April12, 2019).

11 B.N., Docket No. 17-0787 (issued July 6, 2018).
4

IT IS HEREBY ORDERED THAT the May 3, 2019 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for proceedings consistent with this 

order of the Board.

Issued: April 7, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board