United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.A., Appellant

and

U.S. POSTAL SERVICE, FLORENCE 

PROCESSING & DISTRIBUTION CENTER, 

Florence, SC, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-1324

Issued: March 1, 2021

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 June 23, 2020 appellant, through counsel, filed a timely appeal from an April 29, 2020

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

Appellate Board assigned Docket No. 20-1324.2

On July 12, 2008 appellant, then a 32-year-old automation clerk, filed an occupational 

disease claim (Form CA-2) alleging that he developed swollen feet and knees and a back condition 

due to factors of his federal employment, including walking, standing, pushing, and pulling. He 

 

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 April 29, 2020 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

indicated that he first became aware of his condition and realized that his condition was caused or 

aggravated by his federal employment on February 22, 2008. On the reverse side of the claim 

form, the employing establishment indicated that appellant stopped work on March 23, 2008 and 

returned to work on June 28, 2008 with restrictions. OWCP accepted the claim for a temporary 

aggravation of preexisting right foot pes planus (flat foot) and aggravation of right talar neck 

fracture. It paid appellant wage-loss compensation on the supplemental rolls commencing 

April 26, 2008 and on the periodic rolls commencing June 7, 2009. On May 1, 2013 OWCP 

terminated his wage-loss compensation and medical benefits. 

On May 30, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a development letter dated June 12, 2018, OWCP informed appellant that additional 

evidence was needed in support of his claim, and afforded him 30 days to submit the necessary 

evidence. No additional evidence was received.

By decision dated July 19, 2018, OWCP denied appellant’s schedule award claim, finding 

that the evidence of record was insufficient to establish a permanent impairment of a scheduled 

member due to his accepted employment injury. 

On July 27, 2018 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. On December 11, 2018 an OWCP 

hearing representative conducted an oral hearing. By decision dated February 15, 2019, an OWCP 

hearing representative affirmed OWCP’s July 19, 2018 decision. 

On May 6, 2019 appellant, through counsel, requested reconsideration. By decision dated 

May 13, 2019, OWCP denied appellant’s reconsideration request.

On March 9, 2020 appellant, through counsel, again filed a claim for a schedule award

(Form CA-7). Appellant attached a February 13, 2020 narrative medical report from Dr. Robert 

Macht, a general surgeon, who reviewed appellant’s history of injury, conducted a physical 

examination, and used the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides)

3

to determine that appellant sustained a 

32 percent permanent impairment of his right lower extremity. Dr. Macht also related that 

appellant had reached MMI on February 6, 2020.

In a development letter dated March 13, 2020, OWCP informed appellant that additional 

evidence was needed in support of his claim, and provided him 30 days to submit the requested 

evidence.

On April 1, 2020 OWCP sent appellant’s medical records and a statement of accepted facts 

(SOAF) to a district medical adviser (DMA) to review for schedule award purposes.

 

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

On April 28, 2020 OWCP received an April 11, 2020 medical report from Dr. Arthur 

Harris, a Board-certified orthopedic surgeon serving as OWCP’s DMA. Dr. Harris concluded that 

appellant had 33 percent permanent impairment of his right lower extremity.

By decision dated April 29, 2020, OWCP denied appellant’s reconsideration request.4 It

did not reference or address the report of Dr. Macht’s February 13, 2020 report, or the DMA’s 

report dated April 11, 2020. 

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

decision and must be remanded to OWCP. 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 April 29, 2020 decision, OWCP failed to consider the February 13, 2020 report from

Dr. Macht and the April 11, 2020 report from the DMA. Whether OWCP receives relevant 

evidence on the date of the decision or days before, such evidence must be considered.6

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 properly submitted to OWCP be reviewed and 

addressed.7 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 April 29, 2020 decision. Following such further 

development as OWCP deems necessary, it shall issue a de novo decision on the claim. 

Accordingly,

 

4 Supra note 2. 

5 41 ECAB 548 (1990); T.G., Docket No. 19-1930 (issued January 8, 2021). 

6 See G.A., Docket No. 19-1080 (issued January 2, 2020); T.J., Docket No. 14-1854 (issued February 3, 2015); J.J.,

Docket No. 12-1062(issued December 12, 2012); William McKennon, 51 ECAB 145 (1999); Linda Johnson, 45 

ECAB 439 (1994) (applying Couch where OWCP did not consider a medical report received on the date of its 

decision).

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

IT IS HEREBY ORDERED THAT the April 29, 2020 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: March 1, 2021

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