United States Department of Labor

Employees’ Compensation Appeals Board

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C.C., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Albuquerque, NM, Employer

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Docket No. 20-1323

Issued: March 2, 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 28, 2020 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the 

Appellate Boards docketed the appeal as No. 20-1323.

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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 Counsel did not appeal from OWCP’s January 15, 2020 merit decision. Therefore, it is not properly before the 

Board on this appeal. See 20 C.F.R. § 501.3.

3 The Board notes that, following the April 28, 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 additional 

evidence for the first time on appeal. Id.
2

On May 18, 1994 appellant, then a 28-year-old contact representative, filed a traumatic 

injury claim (Form CA-1) alleging that on that date, she slipped on the restroom floor, hit her left 

arm, and landed on her tail bone, while in the performance of duty. OWCP assigned this claim 

File No. xxxxxx445 and accepted it for lumbar sprain, right knee and leg sprain, left wrist sprain, 

recurrent dislocation of the left forearm, tear of the medial meniscus of the right knee and 

lumbosacral spondylosis, without myelopathy.4

Appellant stopped work on May 18, 1994, was referred to vocational rehabilitation by 

OWCP on August 31, 1995, started classes, but was unable to complete the program due to 

nonwork-related issues. She subsequently was able to secure employment on her own. Appellant 

stopped work again on August 24, 2005, was released to return to limited-duty work on October 5, 

2005, but did not return. The record reflects that OWCP initially paid appellant intermittent wageloss compensation on the supplemental rolls and then on the periodic rolls, as June 16, 2002.

Appellant’s treating physician, Dr. Kira A. Paisley, a Board-certified family practitioner, 

continued to submit medical reports to OWCP. In a report dated September 24, 2019, she related 

that appellant was seen for lumbosacral spondylosis, without myelopathy, which caused pain and 

limited her ability to sit, stand for long periods of time, or walk for more than a few blocks; sprain 

and strain of the lumbosacral joint/ligament; tear of the medial meniscus of the knee which was 

chronic and likely to deteriorate; chronic left wrist sprain which was not likely to improve; and 

recurrent joint dislocation of the forearm.

OWCP referred appellant to Dr. Adam J. Farber, Board-certified in sports medicine and 

orthopedic surgery for a second opinion examination. In a report dated November 8, 2019,

Dr. Farber related that appellant’s accepted employment-related conditions included lumbar, right 

knee, and left wrist sprains; as well as lumbosacral spondylosis; and status post right knee partial 

medial and lateral meniscectomy and chondroplasty. He concluded that appellant’s lumbar, right 

knee and left wrist sprains had resolved. Dr. Farber also noted that appellant appeared to be 

suffering residual symptoms related to the accepted diagnosis of lumbar spondylosis, based upon 

her pain complaints as well as x-ray and magnetic resonance imaging scan findings. He further 

noted that appellant’s lumbar spine pathology did not require work restrictions, because appellant’s 

treating orthopedic surgeon had not provided work restrictions when he last saw her on 

December 15, 2014. In a supplemental report dated November 22, 2019, Dr. Farber repeated his 

previous conclusions.

By decision dated January 15, 2020, OWCP terminated appellant’s wage-loss 

compensation effective that date. It relied upon the report of the second opinion physician,

Dr. Farber. OWCP found that the reports from the treating physician, Dr. Paisley, did not provide 

a clear and well-reasoned explanation, supported by objective findings, as to how the accepted 

 

4 The statements of accepted facts (SOAF) dated June 6, 2005, January 23, 2006, February 28, 2011, and 

November 25, 2014 described a prior OWCP claim pertaining to a motor vehicle accident on August 20, 1991, which 

OWCP accepted for exacerbation of a preexisting fibromyalgia condition. In the SOAFs, OWCP related that appellant

remained off work until November 1991, when she returned to her regular duties part time, four hours per day, five 

days per week, taking intermittent sick leave. Appellant stopped work again in June 1992 and then returned to 

sedentary duties of a contact representative/tele-service representative. The record does not identify an OWCP file 

number associated with this claim and no other evidence is available regarding this claim.
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conditions disabled appellant from performing her date-of-injury position. It explained that the 

reports from Dr. Paisley did not explain how the accepted conditions of lumbar sprain, right knee 

sprain, and left wrist sprain had not resolved within six months.

OWCP received additional evidence including February 14, and March 10, 2020, reports

from Dr. Paisley, a February 17, 2020 request for medical equipment related to appellant’s LS-S1 

spondylosis for pain management from Dr. A. Paterson, a Board-certified orthopedic surgeon, and 

physical therapy notes dating from December 4, 2019 to January 30, 2020.

On April 20, 2020 appellant, through counsel, requested reconsideration. Counsel argued 

that the report from Dr. Farber suggested that he was under the impression that the claim was only 

approved for lumbar sprain, right wrist sprain, and left wrist sprain. He argued that Dr. Farber 

failed to fully address the approved condition of lumbosacral spondylosis, and his report therefore 

was of limited probative value. Counsel argued that the January 15, 2020 decision should be 

vacated and appellant’s benefits restored.

By decision dated April 28, 2020, OWCP denied appellant’s request for reconsideration of 

the merits of her claim.

The Board finds that this case is not in posture for decision.

Section 8124(a) of FECA provides that OWCP shall determine and make findings of fact 

and make an award for or against payment of compensation. Its regulations at 20 C.F.R. § 10.126 

provide that the decision of the Director of OWCP shall contain findings of fact and a statement 

of reasons. As well, OWCP’s procedures provide that the reasoning behind OWCP’s decision 

should be clear enough for the reader to understand the precise defect of the claim and the kind of 

evidence which would overcome it.5

In the April 28, 2020 decision, OWCP did not reference or discuss the argument and

evidence submitted after the January 15, 2020 merit decision.6 Appellant’s counsel had alleged 

that the reports from the second opinion physician, Dr. Farber had not fully addressed all of the 

accepted conditions. Furthermore, the Board notes that OWCP had received additional medical 

reports following January 15, 2020 decision, including additional medical reports from appellant’s 

treating physician, Dr. Paisley dated February 14 and March 10, 2020. As such, OWCP did not 

discharge its responsibility to set forth findings of fact and a clear statement of reasons explaining 

the disposition so that appellant could understand the basis for the decision, i.e., why the argument 

and evidence had not met any of the requirements of 20 C.F.R. § 10.606(b)(3), to require OWCP 

to reopen the case for review of the merits of the claim.7 This case must therefore be remanded to 

OWCP for an appropriate decision on appellant’s reconsideration request that describes the 

 

5 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

6 See B.S., Docket No. 20-1008 (issued November 13, 2020); R.T., Docket No. 19-0604 (issued September 13, 

2019); T.M., Docket No. 17-1609 (issued December 4, 2017).

7 See J.J., Docket No. 11-1958 (issued June 27, 2012).
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evidence submitted on reconsideration and provides detailed reasons for accepting or rejecting the 

reconsideration request.

IT IS HEREBY ORDERED THAT the April 28, 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 2, 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