United States Department of Labor

Employees’ Compensation Appeals Board

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A.B., Appellant

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DEPARTMENT OF HOMELAND SECURITY,

U.S. CUSTOMS & BORDER PATROL,

Santee, CA, Employer

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Docket No. 20-0291

Issued: October 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 November 20, 2019 appellant filed a timely appeal from September 17 and October 11, 

2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards docketed the appeal as No. 20-0291.1 

On June 14, 2018 appellant, then a 48-year-old border patrol agent, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his left foot, including his big toe, while 

in the performance of duty. He explained that when he was walking towards his service vehicle 

his left foot was wedged between two rocks and he fell forward.

 

1 The Board notes that, following the October 11, 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

On July 30, 2018 appellant filed a claim for compensation (Form CA-7) for leave without 

pay (LWOP) claiming wage-loss compensation for the period from July 30 to August 9, 2018.2

In an August 28, 2018 letter, OWCP’s selected physician, Dr. James Caviness, Boardcertified in preventive medicine, informed appellant’s attending physician, Dr. David Robinson, 

an osteopath specializing in family practice, that his August 9, 2018 report indicated that 

appellant’s physical examination revealed normal results and that appellant ambulated properly

and thus, he did not understand why appellant currently remained off of work. Dr. Caviness 

requested that Dr. Robinson elaborate on his rationale for appellant’s total disability status and 

asked that he consider recommending light or sedentary duty based on objective findings. He 

added that he agreed that appellant’s workplace injury may have aggravated appellant’s 

preexisting metatarsophalangeal joint osteoarthrosis and; therefore, he would recommend the 

authorization of the referral to a podiatrist.

Dr. Robinson responded to Dr. Caviness, in a September 7, 2018 letter, and noted that he 

was having a difficult time getting authorization from OWCP for diagnostic imaging necessary to 

determine if appellant required further care. He indicated that appellant continued to experience

right foot neuritis, ankle pain, shoulder pain, right shoulder impingement, and pain in his

metatarsophalangeal joint which was possibly secondary degenerative joint disease. Dr. Robinson 

explained that, despite that OWCP would not authorize a referral to a podiatrist or orthopedist to 

conduct examinations to determine if there were additional conditions caused by the claimed 

employment injury. Dr. Robinson additionally indicated that appellant was also unable to return 

to him for further treatment because OWCP refused to approve the visit. He opined that appellant 

still suffered from right shoulder impingement syndrome and right foot neuritis that was caused

by either tarsal tunnel syndrome or radiculopathy from the lumbar area secondary to his fall. 

Dr. Robinson concluded that appellant could perform light duty, such as answering the telephone 

or sitting for no longer than 45 minutes without a break, but could not participate in law 

enforcement activities or engage in heavy lifting.

On May 3, 2019 OWCP accepted appellant’s claim for impingement syndrome of the right 

shoulder and an aggravation of primary osteoarthritis of the left ankle and foot.

In a June 27, 2019 development letter, OWCP informed appellant that the documentation 

received to date was insufficient to establish his claim for compensation for the period July 30, 

2018 through June 2, 2019. It advised him that he should provide the second opinion report from 

his case record to his treating physician for concurrence regarding his ability to work with 

restrictions during the claimed period of disability. OWCP afforded appellant 30 days to submit 

the necessary evidence.

By decision dated September 17, 2019, OWCP denied appellant’s compensation claim, 

finding that the evidence of record was insufficient to establish that he was disabled for work for 

the period July 30 2018 and continuing due to his accepted conditions. It noted receipt of specific 

 

2 OWCP continued to receive CA-7 forms claiming compensation for LWOP for disability through

September 7, 2018.
3

medical reports, but did not indicate receipt or review of the correspondence between 

Drs. Caviness and Robinson.

On September 24, 2019 appellant requested reconsideration.

By decision dated October 11, 2019, OWCP denied modification of its September 17, 2019 

decision. It again did not acknowledge receipt of the August 28, 2018 report from Dr. Caviness 

or the September 7, 2018 report from Dr. Robinson. 

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.

OWCP’s September 17 and October 11, 2019 decisions did not reference or address the 

August 28, 2018 correspondence from Dr. Caviness to Dr. Robinson, or Dr. Robinson’s 

September 7, 2018 response to Dr. Caviness, which directly addressed the question of why he 

considered appellant totally disabled for work during the period in question. 

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 September 17 and October 11, 2019 decisions.

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. 

 

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

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

William A. Couch, id.

5 See V.C., Docket No. 16-0694 (issued August 19, 2016).
4

IT IS HEREBY ORDERED THAT the October 11 and September 17, 2019 decisions of 

the Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP 

for further proceedings consistent with this order of the Board.

Issued: October 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