United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.T., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

East Elmhurst, NY, Employer

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Docket No. 19-0037

Issued: October 21, 2019

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

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 October 5, 2018 appellant, through counsel, filed a timely appeal from an April 9, 2018 

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

Boards docketed the appeal as No. 19-0037.

2

This case has been previously before the Board.

3

 The facts and circumstances as set forth 

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

follows.

 

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 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 

20 C.F.R. § 501.5(b). By order dated April4, 2019, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying 

Request for Oral Argument, Docket No. 19-0037 (issued April4, 2019).

3 Docket No. 17-1292 (issued February8, 2018).
2

On October 1, 2014 appellant, then a 42-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging a left knee injury that day as a result of a fall while in the 

performance of duty. He stated that he was on the elliptical machine in the second floor office 

gym when his left knee buckled and he felt immediate pain. 

By decision dated January 21, 2015, OWCP accepted that the October 1, 2014 employment 

incident occurred as alleged, but denied appellant’s claim finding that he had not submitted

evidence containing a medical diagnosis in connection with the injury or events. 

By decisions dated August 16, 2016, OWCP modified its prior decision and accepted that 

the October 1, 2014 employment incident occurred as alleged, but denied the claim because the 

medical evidence of record failed to establish causal relationship between appellant’s diagnosed 

conditions and the accepted October 1, 2014 employment incident. By decisions dated 

November 23, 2016 and May 4, 2017, it denied modification of its August 16, 2016 decision.

By decision dated February 8, 2018, the Board set aside OWCP’s May 4, 2017 decision 

and remanded the case to OWCP for further medical development. The Board found that the case 

was not in posture for decision because the reports from appellant’s physician, Dr. Bruce R. Ross, 

a Board-certified orthopedic surgeon, strongly suggested causal relationship between the accepted 

October 1, 2014 employment incident and appellant’s new left knee ACL tear.

4

 The Board found 

that while Dr. Ross’ reports were not completely rationalized, they were consistent in indicating 

that appellant had sustained a new ACL tear due to the accepted employment incident and that 

they were not contradicted by any substantial or factual evidence of record. Therefore, the Board 

remanded the case to OWCP for further medical development “to obtain a rationalized medical 

opinion” as to whether appellant’s condition was causally related to the accepted employment 

incident and to issue a de novo decision. The Board explained that while the claimant bears the 

burden of proof to establish entitlement to compensation, OWCP “shares responsibility” in the 

development of the evidence and to see that justice is done.5

In a development letter dated February 14, 2018, OWCP requested that appellant submit a 

narrative medical report containing “a well-rationalized physician’s opinion supported by a 

medical explanation as to how the reported work incident caused or aggravated a medical 

condition.” The letter noted that the documentation that had been received to date was insufficient 

to support his claim because the evidence was insufficient to establish that he actually experienced 

the incident or employment factor alleged to have caused injury or a medical report on causal 

relationship. It afforded appellant 30 days to submit additional evidence in support of his claim. 

Appellant, through counsel, responded by submitting a February 27, 2018 letter contending

that OWCP had misconstrued the Board’s decision by asking appellant to submit additional 

medical opinion evidence and requested a review by an OWCP district medical adviser (DMA). 

By decision dated April 9, 2018, OWCP found that the medical evidence of record failed 

to establish causal relationship between appellant’s diagnosed conditions and the accepted 

 

4 M.H., Docket No. 18-1737 (issued March 13, 2019); J.C., Docket No. 16-1649 (issued February 8, 2017); 

L.F., Docket No. 14-1906 (issued August13, 2015); John J.Carlone, 41 ECAB 354 (1989).

5

J.S., Docket No. 16-0777 (issued January 3, 2017); Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. 

Hammons, 51 ECAB 219 (1999); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983).
3

October 1, 2014 employment incident finding that the opinion of Dr. Ross was not well

rationalized. OWCP further noted that the Board’s decision did not require that the case be referred 

to a DMA or any other medical expert and noted that its February 14, 2018 development letter 

provided sufficient opportunity for appellant to submit the requested evidence. 

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

decision. 

By decision dated February 8, 2018, the Board set aside OWCP’s May 4, 2017 decision 

and remanded the case to OWCP “to obtain a rationalized medical opinion” as to whether 

appellant’s condition was causally related to the accepted October 1, 2014 employment incident 

and to issue a de novo decision. However, on remand, OWCP failed to properly develop the record 

by obtaining a rationalized medical opinion from an OWCP physician, such as a DMA or second 

opinion examiner, on the issue of causal relationship as instructed by the Board.

Therefore, the Board will set aside OWCP’s April 9, 2018 decision and remand the case 

for proper development of the medical evidence. On remand OWCP shall prepare a statement of 

accepted facts and thereafter obtain from a DMA or second opinion examiner a well-rationalized 

medical opinion on the issue of causal relationship. Following this and such other development 

as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the April 9, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this order of the Board.

Issued: October 21, 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