United States Department of Labor

Employees’ Compensation Appeals Board

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N.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, 

College Park, GA, Employer

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Docket No. 21-1102

Issued: February 7, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 July 14, 2021 appellant filed a timely appeal from a July 9, 2021 merit decision of the 

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

docketed the appeal as Docket No. 21-1102.1

On November 22, 2010 appellant, then a 48-year-old mission support specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on October 27, 2010 she sustained stiffness and 

pain in the right side of her neck and shoulder over a two-week period of copying and cleaning up 

files while in the performance of duty. By decision dated January 6, 2011, OWCP accepted the 

claim for brachial neuritis or radiculitis, not otherwise specified, right-side sprain of neck, and 

disorder of bursae and tendons in shoulder region, unspecified, right.

On February 4, 2021 Dr. Rajiv Pandya, a Board-certified orthopedic surgeon, diagnosed 

right shoulder pain and a full thickness right rotator cuff tear with impingement. He recommended 

1 The Board notes that, following the July 9, 2021 OWCP decision, appellant submitted additional evidence on 

appeal. 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

surgical intervention in the form of arthroscopy with a rotator cuff repair, subacromial 

decompression, and addressing any biceps pathology as appropriate.

By decision dated March 15, 2021, OWCP denied expansion of the acceptance of the claim 

to include the conditions of complete rotator cuff tear, rupture of the right shoulder, or primary 

osteoarthritis as a consequential injury.

On March 16, 2021 OWCP received a statement from appellant dated January 15, 2021

describing her job duties.

In an April 12, 2021 report, Dr. Pandya related that appellant’s right shoulder bursitis was 

more likely than not the direct result of her repetitive work activities. He also explained that 

appellant’s right shoulder impingement syndrome was a typical progression over time of enlarging 

subacromial space bone spurs, resulting in increased narrowing of the subacromial space and longterm wear and tear of the rotator cuff musculature.

OWCP continued to receive evidence. In a March 4, 2021 report Dr. Pandya opined that 

her injuries were all secondary to a work-related injury that she sustained on October 27, 2010. 

Dr. Pandya explained that appellant related that two weeks prior to her injury, she photocopied 

printed matter using a photocopy machine, filed the papers, and also had to use a sharpie to block

out social security information. He further noted that appellant related that she went through this 

repetitive type of work over a two-week period on a daily basis and progressively developed pain 

in the right side of her neck radiating down to the right trapezial area. Dr. Pandya noted that 

appellant denied these symptoms prior to October 27, 2010. He diagnosed full thickness rotator 

cuff tear, shoulder pain, and impingement syndrome of the right shoulder. Dr. Pandya explained 

that, due to the presentation of her right shoulder symptoms on October 27, 2010 and lack of prior 

symptoms, “we can confidently say with highest medical confidence that there is a causal 

relationship between her current issues with her right shoulder and her injury on October 27, 2010 

while working.”

On April 30, 2021 appellant requested reconsideration.2

OWCP received reports from Dr. James E. Ellner, a specialist in interventional pain 

medicine, dated December 20, 2019, January 15, February 10, April 14, May 5, and June 25, 

2020, February 1 and 18, March 30, April 15, and May 5, 2021. It also received a May 21, 2021 

report from a physician assistant.

By decision dated July 9, 2021, OWCP denied modification of its March 15, 2021 decision.

It indicated that the evidence reviewed in support of appellant’s reconsideration request included 

the January 15, 2021 statement from appellant received on March 16, 2019, and the April 12, 2021 

report from Dr. Pandya.

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,

3

the Board held that, when adjudicating a claim, OWCP 

2 Appellant initially timely requested an oral hearing before a representative of OWCP’s Branch of Hearings and 

Review. However, on April 30, 2021 appellant withdrew her hearing request and requested reconsideration.

3

41 ECAB 548 (1990); see P.K., Docket No. 20-0940 (issued June1, 2020); D.M., Docket No. 20-0099 (issued 

July 16, 2020); see also R.D., Docket No. 17-1818 (issued April3, 2018).
3

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued.

While the July 9, 2021 decision addressed appellant’s January 15, 2021 statement and the 

April 12, 2021 report from Dr. Pandya, OWCP did not review the March 4, 2021 report from

Dr. Pandya, the medical reports from Dr. Ellner dated December 20, 2019 to May 17, 2021, and 

the notes from the physician assistant.

It is crucial that OWCP review 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.4 The 

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

evidence in its July 9, 2021 decision.5 On remand, OWCP shall review all evidence of record and 

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

IT IS HEREBY ORDERED THAT the July 9, 2021 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: February 7, 2022

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

4

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

WilliamA. Couch, id.

5

Supra note 2; see also V.C., Docket No. 16-0694 (issued August19, 2016).