United States Department of Labor

Employees’ Compensation Appeals Board

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O.O., JR., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hickory, NC, Employer

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Docket No. 20-0142

Issued: September 29, 2020

Appearances: Case Submitted on the Record

Daniel F. Read, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On October 15, 2019 appellant, through counsel, filed a timely appeal from a July 2, 2019 

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

Appellate Boards docketed the appeal as No. 20-0142.

2

On June 6, 1997 appellant, then a 51-year-old distribution clerk, filed an occupational 

disease claim (Form CA-2) alleging that he injured both shoulders and his left finger due to factors 

of his federal employment. OWCP accepted the claim for right shoulder adhesive capsulitis, left 

trigger finger, bilateral rotator cuff sprain/strain, and left brachial neuritis or radiculitis. On 

 

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 July 2, 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 evidence for 

the first time on appeal. Id. 
2

August 10, 2000 OWCP granted appellant a schedule award for 25 percent permanent impairment 

of his left arm and on January 11, 2005 granted a schedule award for 13 percent permanent 

impairment of his right upper extremity. It paid appellant wage-loss compensation on the 

supplemental rolls, commencing November 5, 2003, and on the periodic rolls commencing 

July 3, 2011.

By notice dated December 15, 2017, OWCP proposed terminating appellant’s wage-loss 

compensation benefits and medical benefits because he no longer had residuals or a disability 

causally related to his accepted employment-related conditions. It found that the weight of the 

medical evidence rested with Dr. Joseph Estwanik, a Board-certified orthopedic surgeon and 

OWCP’s second opinion examiner, who indicated that appellant had no objective findings to 

support further ongoing disability or residuals caused by his employment-related conditions.

By decision dated January 24, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date. It found that the weight of medical 

evidence rested with Dr. Estwanik, OWCP’s second opinion examiner, who concluded in his 

July 28 and August 23, 2017 reports that appellant no longer had residuals or a disability due to 

his accepted bilateral shoulder and left finger conditions.

On February 7, 2018 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. The hearing was held on July 10, 2018. By decision dated 

September 17, 2018, OWCP’s hearing representative affirmed the January 24, 2018 decision.

On April 18, 2019 appellant, through counsel, requested reconsideration.

Appellant submitted a series of additional medical evidence, including new medical reports 

dated November 2016 to February 2018 from Dr. David Cabral, an internal medicine specialist, 

an undated report from Dr. Karyn Rahn, Board-certified in occupational therapy, and reports by 

various nurse practitioners from April 2017 to May 2019.

By decision dated July 2, 2019, OWCP denied modification to its September 17, 2018 

decision. In its decision, OWCP indicated that the evidence received in support of appellant’s 

reconsideration request included medical reports previously received and a new undated medical 

report from Dr. Rahn who examined the appellant on August 7, 2018.

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

decision. In the case of William A. Couch,

3

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 July 2, 2019 decision, OWCP indicated that the only new medical evidence received 

was an undated medical report by Dr. Rahn who had examined appellant on August 7, 2018. 

However, appellant additionally submitted new medical reports dated November 2016 to 

 

3 41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
3

February 2018 by Dr. Cabral and medical reports by various nurse practitioners dated from 

April 2017 to May 2019.

It is crucial that OWCP address all relevant evidence received prior to the issuance of its 

final decision, as the Board’s decisions are final with regard to the subject matter appealed.4 The 

Board finds that this case is not in posture for decision, as OWCP did not address the above-noted 

evidence in its July 2, 2019 decision.5 On remand OWCP shall review all evidence of record and,

following any further development as it deems necessary, it shall issue a de novo decision. 

IT IS HEREBY ORDERED THAT the July 2, 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: September 29, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

 

4 See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also 

William A. Couch, supra note 3.

5 See V.C., Docket No. 16-0694 (issued August 19, 2016).