United States Department of Labor

Employees’ Compensation Appeals Board

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A.N., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SOUTHERN ARIZONA VA HEALTH CARE 

SYSTEM, Tucson, AZ, Employer

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Docket No. 20-1603

Issued: June 16, 2021

Appearances: Case Submitted on the Record

Kelley Craig, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On September 8, 2020 appellant, through counsel, filed a timely appeal from an April 6, 

2020 merit decision and from a purported April 21, 2020 merit decision of the Office of Workers’

Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 

20-1603.

On August 17, 2016 appellant, then a 59-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging on that date she developed a headache, neck pain, and spasms when pushing 

an overweight patient in a wheelchair and helping him to the restroom while in the performance 

of duty. She stopped work on August 25, 2016 and returned to work on September 19, 2016. On 

August 31, 2016 OWCP accepted appellant’s claim for cervical sprain.

 

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

Beginning October 24, 2016, appellant’s attending physicians, Drs. Ty Endean

and Thomas Martens, osteopaths, reported the additional condition of herniated cervical disc.

On September 26, 2019 OWCP referred appellant, a statement of accepted facts, and a list 

of questions to Dr. Michael A. Steingart, an osteopath and sports medicine specialist, for a second 

opinion examination regarding her accepted cervical condition.

On October 16, 2019 appellant, through counsel, requested that the acceptance of her claim 

be expanded to include the additional condition of herniated cervical disc.

By decision dated April 6, 2020, OWCP denied appellant’s request to expand her claim to 

include herniated cervical disc.

On April 7, 2020 appellant, through counsel, requested that the acceptance of appellant’s 

claim be expanded to include the additional conditions of herniated cervical disc at C5-6 and 

aggravation of her herniated disc at C4-5.

OWCP received Dr. Steingart’s November 6, 2019 second opinion report on 

April 16, 2020. Dr. Steingart diagnosed chronic sprain/strain with central disc herniation at C5-6 

with myofascial pain, finding that the conditions were causally related to the accepted employment

injury.

In an April 21, 2020 letter, OWCP provided appellant with Dr. Steingart’s November 6, 

2019 second opinion report and concluded that, “We do not find this report sufficient to overturn 

the [April 6, 2020] decision on our motion. If you disagree with the [April 6, 2020] decision report, 

please review the appeal rights attached.”

The Board’s Rules of Procedure provide that the Board has jurisdiction to consider and 

decide appeals from the final decision of OWCP in any case arising under FECA. In considering 

whether a document constitutes a final decision, it is not the form, but the content and the intention 

of OWCP that is determinative.2

The April 21, 2020 letter notes review of Dr. Steingart’s November 6, 2019 report by 

OWCP. It attached a copy of his report, but did not make findings regarding his conclusions and 

diagnoses.

The April 21, 2020 letter made an adverse finding with respect to appellant’s request for 

expansion of her claim and there is no indication that the finding was interlocutory or otherwise 

pending further development. Accordingly, the Board finds that the April 21, 2020 letter 

constitutes a final decision on the merits of appellant’s claim for expansion of her accepted 

conditions and is, therefore, an appealable decision pursuant to 20 C.F.R. §§ 501.2(c) and 502.3(a).

 

2 See Henry F. Dyer, Docket No. 05-452 (issued May 13, 2005) (the Board held that a July 22, 2004 letter with no 

appeal rights attached constituted a final decision. The letter noted that the medical evidence established 32 percent 

binaural hearing loss, but that appellant had previously received schedule awards for 53 percent binaural hearing loss 

and “there is not an increased hearing impairment documented at this time).” Ralph Edmond Zollars, 5 ECAB 617, 

618 (1953) and the cases cited therein.
3

Section 8124(a) of the Federal Employees’ Compensation Act (FECA) and section 10.126 

of the implementing regulations3require that final decisions of OWCP contain findings of fact and 

a statement of reasons. A decision denying a claim should contain a correct description of the 

basis for the denial in order that the parties of interest have a clear understanding of the precise 

defect of the claim and the kind of evidence which would overcome it.4 The Board finds that 

OWCP’s April 21, 2020 decision was incomplete as it did not contain findings regarding the 

medical evidence from Dr. Steingart, nor did it provide a statement of reasons as to why it 

determined that his report was not entitled to be accorded weight or probative value as it was based 

on a proper factual background and a physical examination. Appellant was, therefore, not apprised 

of the deficiencies OWCP had found in Dr. Steingart’s second opinion report. Because the 

April 21, 2020 decision does not explain the basis for the denial of expansion of her claim to 

include cervical herniated disc at C5-6 as diagnosed by him or the findings of fact reached therein, 

the Board finds that OWCP has not fulfilled its responsibility under section 8124 of FECA and 

section 10.126 of its implementing regulations in regard to her formal request for expansion of the 

acceptance of her claim to include additional diagnosed conditions.

Accordingly, the case must be remanded to OWCP for a proper decision, which includes 

findings of fact and a clear and precise statement regarding appellant’s request for expansion of 

her accepted conditions. Following further development as OWCP deems necessary, it shall issue 

a de novo decision.5

 

3 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126, respectively.

4 K.K., Docket No. 19-0652 (issued September 19, 2019); L.R., Docket No. 15-0235 (issued December 21, 2015); 

Patrick Michael Duffy, 43 ECAB 280 (1991).

5 Consequently, in view of the Board disposition of the April 21, 2020 decision, the Board will not address the 

April 6, 2020 decision.
4

IT IS HEREBY ORDERED THAT the April 21, 2020 decision of the Office of Workers’

Compensation Programs is set aside and the case remanded for further proceedings consistent with 

this order of the Board.

Issued: June 16, 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