United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.K., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, QUANTICO 

COMMISSARY, Quantico, VA, Employer

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Docket No. 20-0940

Issued: June 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:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 26, 2020 appellant, through counsel, filed a timely appeal from a March 6, 2020 

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

Appellate Boards docketed the appeal as Docket No. 20-0940. 

On July 27, 2018 appellant, then a 50-year-old commissary worker, filed a traumatic injury 

claim (Form CA-1) alleging that on July 17, 2018 she injured her left shoulder while in the 

performance of duty. She explained that she strained her shoulder while pulling pallet jacks filled 

with produce to the produce section after unloading a truck. On the reverse side of the claim form, 

the employing establishment indicated that appellant was injured in the performance of duty on 

July 17, 2018 and stopped work on July 21, 2018. 

 

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

In a development letter dated August 17, 2018, OWCP informed appellant that additional 

evidence was needed in support of her claim and afforded her 30 days to submit the requested 

evidence. 

By decision dated September 18, 2018, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record failed to establish a diagnosed medical condition in connection 

with the accepted July 17, 2018 employment incident. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

On October 23, 2018 appellant requested reconsideration. She submitted additional 

medical evidence.

By decision dated January 18, 2019, OWCP modified its September 18, 2018 decision 

finding that the evidence of record established a diagnosed medical condition; however, it found 

that the claim remained denied as the evidence of record was insufficient to establish causal

relationship between appellant’s diagnosed conditions and the accepted July 17, 2018 employment 

incident. 

On March 1, 2019 appellant requested reconsideration. She submitted additional medical 

evidence. 

By decision dated May 20, 2019, OWCP denied modification of its January 18, 2019 

decision. 

Following OWCP’s May 20, 2019 decision, appellant submitted November 5, 

December 11, 2018, and April 30, 2019 reports from Dr. Anthony Ho, a Board certified orthopedic 

surgeon.

OWCP also received: November 12, 2018 progress notes by Dr. Jennifer Coulter, an 

osteopath Board-certified in physical medicine and rehabilitation; a January 25, 2019 report by

Dr. Harman Bajwa, Board-certified in neurology; an April 30, 2019 report by Dr. Diane Franchi, 

Board-certified in internal medicine; and July 17, 2019 hospital records signed by Dr. Ken 

Accousti, a Board-certified orthopedic surgeon. 

Additionally, OWCP received October 6, 2019 emergency department notes by Dr. Brian 

Hoff, Board-certified in emergency medicine, and Dr. Brent Williamson, Board-certified in 

internal medicine; and an October 6, 2019 magnetic resonance imaging scan of appellant’s cervical 

spine interpreted by Dr. Heather Newman, Board-certified in radiology.

On December 19, 2019 appellant, through counsel, requested reconsideration. Appellant 

submitted a November 8, 2019 report from Dr. Accousti.

By decision dated March 6, 2020, OWCP denied modification of its May 20, 2019 

decision. It found that the evidence reviewed in support of appellant’s reconsideration request

included a November 8, 2019 narrative medical report by Dr. Accousti and appellant’s 

December 19, 2019 reconsideration request. 
3

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,

2

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 March 6, 2020 decision stated that the evidence it reviewed in support of 

appellant’s reconsideration request included a November 8, 2019 narrative medical report by

Dr. Accousti and appellant’s December 19, 2019 reconsideration request. However, OWCP did 

not address the medical reports from Dr. Ho dated November 5, 2018, December 11, 2018 and 

April 30, 2019, November 12, 2018 progress notes by Dr. Coulter, a January 25, 2019 report by

Dr. Bajwa, an April 30, 2019 report by Dr. Franchi,July 17, 2019 hospital records by Dr. Accousti, 

and October 6, 2019 emergency department notes by Dr. Hoff and Dr. Williamson. 

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.3 The 

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

evidence in its March 6, 2020 decision.4 On remand OWCP shall address all evidence of record 

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

 

2 41 ECAB 548 (1990); D.M., Docket No. 20-0099 (issued July 16, 2020); see also R.D., Docket No. 17-1818 

(issued April 3, 2018).

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

William A. Couch, id.

4 Supra note 2; see also V.C., Docket No. 16-0694 (issued August 19, 2016).
4

IT IS HEREBY ORDERED THAT the March 6, 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: June 1, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board