United States Department of Labor

Employees’ Compensation Appeals Board

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B.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Lexington, KY, Employer

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Docket No. 20-1100

Issued: May 7, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On April 29, 2020 appellant filed a timely appeal from a November 1, 2019 merit decision 

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

assigned Docket No. 20-1100.1 

This case has previously been before the Board.2 The facts and circumstances of the case 

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

as follows.

On April 22, 2004 appellant, then a 49-year-old city carrier, filed an occupational disease

claim (Form CA-2) alleging that she sustained injuries to her neck and right upper extremity due

to her federal employment duties on or about April 20, 2004. OWCP accepted appellant’s claim

 

1 The Board notes that following the November 1, 2019 decision, appellant submitted additional evidence to 

OWCP. 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 additional evidence for the first time on appeal. Id.

2 Order Remanding Case, Docket No. 16-1761 (issued December 21, 2016); Order Remanding Case, Docket No. 

18-1654 (issued August 20, 2019).
2

for disc herniation at the C6-7 level with radiculopathy and appellant underwent OWCPauthorized anterior cervical discectomy/fusion surgery at C6-7 on September 30, 2004. In 

December 2009, OWCP expanded the accepted conditions to include C5-6 herniated disc with 

degenerative changes. It later found that appellant was entitled to wage-loss compensation for 

disability from work retroactive to April 24, 2008 and placed her on the periodic rolls. In 

March 2012, appellant’s rehabilitation counselor determined that she was capable of earning 

wages in the constructed position of receptionist. The physical requirements of the position were 

within the October 25, 2012 work restrictions of Dr. Theodore T. Le, a Board-certified orthopedic 

surgeon who served as an OWCP referral physician.

On May 17, 2013 OWCP issued a formal loss of wage-earning capacity (LWEC)

determination based upon appellant’s ability to earn $318.00 per week as a receptionist and it 

adjusted appellant’s wage-loss compensation commencing June 2, 2013 based on this 

determination. By decisions dated July 15, 2014 and February 9, 2015, it denied modification of 

the May 17, 2013 LWEC determination.

On February 12, 2016 appellant requested reconsideration and submitted medical

evidence, which she believed showed she could no longer work as a receptionist, including a 

December 11, 2014 report of Dr. Mark A. Deloma and a September 9, 2015 report of Dr. Karim 

Rasheed, both Board-certified in anesthesiology.

By decision dated February 29, 2016, OWCP refused to reopen appellant’s case for further

review of the merits of her claim because the February 12, 2016 request for reconsideration was

untimely filed and failed to demonstrate clear evidence of error.

Appellant appealed the February 29, 2016 decision to the Board and, by order dated

December 21, 2016,3the Board set aside the February 29, 2016 decision and remanded the case to

OWCP for further development. The Board found that appellant had raised the issue of whether

modification of the May 17, 2013 LWEC determination was warranted and directed OWCP to

consider this matter on remand and issue an appropriate decision. On remand, OWCP issued an 

April 12, 2017 decision in which it determined that appellant had not met her burden of proof to 

modify its May 17, 2013 LWEC determination.

On July 10, 2018 appellant requested reconsideration and, in a July 2, 2018 letter received 

on July 10, 2018, she argued that her employment-related medical condition had materially 

changed such that modification of OWCP’s May 17, 2013 LWEC determination was warranted. 

She submitted a number of medical reports, including a January 11, 2018 report from

Dr. Robert D. Owen, a Board-certified neurosurgeon, who noted her complaints of left-sided neck 

pain radiating into the left hand, diagnosed cervical disc disorder with radiculopathy, and 

recommended anterior cervical discectomy/fusion surgery at C5-6. Appellant also submitted an 

April 23, 2018 report from Dr. John J. Vaughan, a Board-certified orthopedic surgeon, who noted 

that she reported experiencing increased cervical pain, which radiated into her left arm. 

Dr. Vaughan indicated that a December 1, 2017 magnetic resonance imaging (MRI) scan of 

appellant’s cervical spine showed a moderate disc herniation at C5-6, which was not present in a 

 

3

Id.
3

2013 cervical spine MRI scan and he recommended anterior cervical discectomy/fusion surgery at 

C5-6. Appellant submitted a copy of the December 1, 2017 MRI scan.

By decision dated July 25, 2018, OWCP denied appellant’s request for reconsideration of

the merits of her claim, finding that the July 10, 2018 request was untimely filed and failed to

demonstrate clear evidence of error.

Appellant appealed the July 25, 2018 decision to the Board and, by order remanding case 

dated August 20, 2019,4the Board set aside the July 25, 2018 decision and remanded the case to

OWCP for further development. The Board found that appellant had raised the issue of whether

modification of the May 17, 2013 LWEC determination was warranted, and it directed OWCP to 

issue a de novo decision after evaluating the new evidence submitted by appellant to determine if 

modification of the prior LWEC determination was warranted. 

By decision dated November 1, 2019, OWCP determined that appellant had not met her 

burden of proof to modify its May 17, 2013 LWEC determination. It advised that it had reviewed 

the following evidence it had received from appellant: medical reports dated February 7, April 24, 

September 6, and October 8, 2019.5

Since the Board’s jurisdiction of a case is limited to reviewing the evidence which is before 

OWCP at the time of its final decision,6it is necessary that OWCP review all evidence submitted by 

a claimant and received by OWCP prior to issuance of its final decision. As the Board’s decisions 

are final as to the subject matter appealed,7it is crucial that all evidence relevant to that subject matter 

which was properly submitted to OWCP prior to the time of issuance of its final decision be 

addressed by OWCP.8

In the present case, OWCP did not review evidence received prior to the issuance of its 

November 1, 2019 decision, i.e., the January 11, 2018 report from Dr. Owen, the April 23, 2018 

report from Dr. Vaughan, and the December 1, 2017 MRI scan. The Board, therefore, must set 

aside the November 1, 2019 decision of OWCP and remand the case so that OWCP may fully 

consider the evidence that was properly submitted by appellant prior to the issuance of this decision. 

Following such further consideration and after such further development as it deems necessary, 

OWCP shall issue an appropriate decision regarding appellant’s request for modification of the 

May 17, 2013 LWEC determination.

 

4 Supra note 2.

5 Each of the reports was produced by Dr. Rasheed. Appellant submitted the reports to OWCP between March 4 

and October 26, 2019. 

6 20 C.F.R. § 501.2(c).

7

Id. at § 501.6(d).

8 T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also

William A. Couch, 41 ECAB 548, 553 (1990).
4

IT IS HEREBY ORDERED THAT the November 1, 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: May 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board