United States Department of Labor

Employees’ Compensation Appeals Board

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S.P., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

HEALTH AGENCY, Fort Belvoir, VA, Employer

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Docket No. 20-0092

Issued: March 4, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 October 16, 2019 appellant filed a timely appeal from an August 29, 2019 merit 

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

Boards assigned the appeal Docket No. 20-0092.

The Board has duly considered the matter and finds that this case is not in posture for 

decision.

On December 11, 2016 appellant, then a 48-year-old dental assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on December 7, 2016 she was struck by a vehicle when 

crossing a street on the employing establishment premises while in the performance of duty. She

stopped work on December 8, 2016. OWCP initially accepted the claim for cervical spine sprain,

hematoma of the scalp, abrasion injury of other part of the head and abrasion of the left elbow. It 

subsequently expanded its acceptance of the claim to include strain of the muscles and tendons of 

the left shoulder rotator cuff, and cervical disc disorder with radiculopathy. OWCP paid appellant 

intermittent wage-loss compensation on the supplemental rolls as of January 23, 2017. Appellant 

returned to full-time modified work on June 4, 2017. OWCP continued to pay appellant wageloss compensation on the supplemental rolls until it placed her on the periodic rolls as of 

April 29, 2018. Appellant subsequently returned to work in a sedentary position and OWCP paid 
2

her compensation for intermittent wage-loss on the supplemental rolls as of December 10, 2018. 

Appellant did not receive wage-loss compensation between February 2, 2019 and June 10, 2019.

On February 5, 2019 Dr. Ryan Jander, a Board-certified hand surgeon, performed a left 

shoulder arthroscopy to treat appellant’s left shoulder adhesive capsulitis.

Appellant submitted claims for compensation (Form CA-7) for leave without pay (LWOP) 

for the period March 18 to June 7, 2019.1

In March 28, 2019 treatment notes, Dr. Jander assessed post arthroscopy adhesive 

capsulitis and cervical radiculopathy. He provided a disability certificate of the same date,

indicating that appellant could not return to work “until after April 11, 2019, when further 

disability will be determined.”

A separate treatment note, dated March 28, 2019, provided by Dr. Christopher Spevak, 

Board-certified in pain medicine, indicated that appellant was released to return to work without 

restrictions.

OWCP received treatment notes, dated from April 18 to 24, 2019, from Dr. Rosemarie 

Filart, a Board-certified physiatrist. In her April 18, 2019 notes, Dr. Filart advised that appellant’s 

chief complaint was chronic pain. She noted appellant’s history of injury, examined appellant, 

and diagnosed cervicalgia. Dr. Filart related that appellant had been released to return to work 

without restrictions. Dr. Spevak also saw appellant on April 24, 2019 for complaints of neck pain 

with radiculopathy. He also released appellant to return to work without limitations.

In a development letter dated May 10, 2019, OWCP notified appellant that the evidence of

record indicated that she was claiming wage-loss compensation due to total disability related to a 

left shoulder arthroscopy surgery performed on February 5, 2019. It noted that the operative report 

indicated that appellant had left shoulder adhesive capsulitis, which was not a currently accepted 

work injury. OWCP explained that additional evidence was needed to establish that the 

February 5, 2019 surgery was causally related to the work injury and medically necessary. It 

advised appellant that her case would be held open for 30 days to afford her the opportunity to 

submit the requested information.

In an April 4, 2019 report, Dr. Bradley Dengler, a neurosurgeon, noted that appellant 

underwent cervical spine surgery on May 24, 2018 and a recent shoulder surgery. He advised that 

appellant was seen for recurrent cervical symptoms. Dr. Dengler diagnosed cervical radiculopathy. 

He also provided treatment notes of the same date. Dr. Dengler indicated that appellant could 

return to work on May 28, 2019.

In May 2, 2019 treatment notes and a narrative report of the same date, Dr. Dengler related 

that appellant was seen in a follow up related to her April 25, 2019 magnetic resonance imaging 

(MRI) scan results, which revealed a combination of old left C5-6 and C6-7 laminectomy and new 

 

1 Appellant had filed Form CA-7 claims for compensation for disability commencing February 4, 2019; however,

the claims, prior to March 18, 2019, are not the subject of this appeal.
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C5-6 findings and resolution of foraminal stenosis. In May 3, 2019 treatment notes, he reviewed 

her MRI scan results, diagnosed cervicalgia, and recommended a spinal cord stimulator.

OWCP received treatment notes, dated May 10, 2019, from Dr. Michael Stockin, a Boardcertified anesthesiologist, who diagnosed cervicalgia.

In May 13, 2019 reports, Dr. Stockin noted that he treated appellant for sprain of the 

cervical spine ligaments and cervical radiculopathy. He advised that she underwent a successful 

spinal cord stimulator trial and he was planning to perform surgical implementation on 

June 12, 2019.

Dr. Filart also saw appellant on May 13, 2019 and treated her for cervicalgia.

In a May 16, 2019 report, Dr. Jander diagnosed adhesive capsulitis, cervical radiculopathy, 

and post arthroscopy. He opined that appellant had reached maximum medical improvement 

(MMI) and was cleared to return to work as her shoulder symptoms had resolved. Dr. Jander also 

noted that appellant’s further work restrictions could be assessed by a neurosurgeon.

Dr. Dengler, in a May 22, 2019 report, noted that appellant underwent cervical spine fusion 

surgery on May 24, 2018 and recent shoulder surgery. He advised that she was seen on April 4, 

2019 with recurrent cervical neck symptoms. Dr. Dengler opined that appellant could return to 

work no earlier than June 26, 2019.

In a June 6, 2019 report, Dr. Jander noted that appellant’s history of injury was related to 

a motor vehicle accident on December 7, 2016. He explained that she sustained a cervical spine 

injury, which required multiple surgeries and overshadowed the less urgent left shoulder injury. 

Dr. Jander indicated that, after appellant’s cervical spine injuries were stabilized, she was able to 

fully focus on the left shoulder injury and her ongoing pain and limited motion. He noted that he 

first evaluated appellant in July 2018 and that the treatment appellant received for the left shoulder 

was ineffective. Dr. Jander advised that appellant had gone one and a half years without pain relief 

and, after several conservative measures, appellant underwent arthroscopic release on her left 

shoulder on February 5, 2019. Additionally, he noted that appellant underwent intensive 

rehabilitation with an excellent functional result and significant improvement in her shoulder pain 

and range of motion). Dr. Jander opined, “[w]ithout question, the left shoulder pain is causally 

related to the motor vehicle accident that occurred on December 7, 2016. [Appellant] states that,

prior to this accident, her shoulder was fine and had no problems.” He advised that appellant did 

not require further treatment.

OWCP received June 12, 19, and 26, July 5, 12, and 30, and August 14, 2019 reports

related to appellant’s spinal cord stimulator placement and after care.

In a June 19, 2019 report, Dr. Dengler advised that appellant should continue off work.

On July 30, 2019 Dr. Dengler completed a work capacity evaluation (Form OWCP-5c) in 

which he noted appellant’s diagnoses as cervical spondylosis and radiculopathy and related that 

appellant could return to sedentary work, starting August 6, 2019, for three hours a day.
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In an August 14, 2019 report, Dr. Spevak noted that appellant was treated for chronic pain 

syndrome of the neck and left arm.

By decision dated August 29, 2019, OWCP denied appellant’s claim for disability for the 

period from March 18 through June 7, 2019, finding that the medical evidence of record was 

insufficient to establish that appellant was disabled from work due to her accepted work-related 

conditions. It further found that medical evidence of record was insufficient to establish that 

adhesive capsulitis and the attendant surgery were causally related to the accepted December 7, 

2016 employment injury.

The Board, having duly considered the matter finds that OWCP did not discuss medical 

evidence submitted in support of appellant’s claims. Thus, the Board finds that this case is not in 

posture for decision.2

In the case of William A. Couch,

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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.

While OWCP is not required to list every piece of evidence submitted to the record, the 

record is clear that medical reports were not reviewed by OWCP in its August 29, 2019 decision.4 

OWCP did not address the reports from Dr. Dengler regarding appellant’s disability due to 

appellant’s accepted cervical conditions. Furthermore, OWCP also did not address medical reports 

from Drs. Spevak, Filart, and Stockin. 

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all 

evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior 

to the time of issuance of its final decision be reviewed and addressed by OWCP.

5

 OWCP did not 

consider medical reports from Drs. Dengler, Spevak, Filart, and Stockin, the Board cannot review 

such evidence for the first time on appeal.6

 

2 See A.C., Docket No. 20-0917 (issued January 27, 2021); K.F., Docket No. 19-0888 (issued January 2, 2020); 

J.J., Docket No. 13-1666 (issued August 18, 2014).

3 41 ECAB 548 (1990).

4 See T.G., Docket No. 19-1930 (issued January 8, 2021).

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

William A. Couch, supra note 3. 

6 20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).
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For this reason, the case will be remanded to OWCP to properly consider all of the 

evidence of record.7 Following this and other such further development as deemed necessary, 

OWCP shall issue a de novo decision. 

IT IS HEREBY ORDERED THAT the August 29, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: March 4, 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

 

7 M.J., Docket No. 18-0605 (issued April 12, 2019).