United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.H., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SHIPYARD, Portsmouth, VA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1801

Issued: September 9, 2020

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 August 27, 2019 appellant, through counsel, filed a timely appeal from an August 2, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of 

the Appellate Boards assigned Docket No. 19-1801.3

 

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 The record also contains an August 15, 2019 decision denying appellant’s claim for wage-loss compensation from

December 12, 2015 to September 14, 2017. He has not appealed this decision and thus it is not before the Board at 

this time. 20 C.F.R. § 501.3. The Board notes that on August 20, 2019 appellant requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review regarding the August 15, 2019 decision. (RD 8-20-19)

3 The Board notes that, following the issuance of the August 2, 2019 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

This case has previously been before the Board.4 The facts and circumstances as presented 

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

follows.

On January 7, 2016 appellant, then a 64-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on December 10, 2015 he bruised his right thigh when he tripped and 

fell, landing on a two-way radio that was in his right pocket.

By decision dated March 29, 2018, OWCP accepted appellant’s claim for a contusion of 

the right thigh. By separate decision of even date, it denied modification of its August 21, 2017 

decision, finding that the medical evidence of record was insufficient to establish that he had 

sustained right hip osteoarthritis, cervical myelopathy with radiculopathy, or lumbar radiculopathy 

causally related to his accepted December 10, 2015 employment injury.

On April 9, 2018 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review.

By decision dated April 26, 2018, OWCP denied appellant’s request for a telephonic

hearing under 5 U.S.C. § 8124(b). It found that he had previously requested reconsideration under 

5 U.S.C. § 8128(a) and thus was not entitled to a hearing as a matter of right. 

Appellant, through counsel, appealed to the Board on June 4, 2018.

By decision dated November 7, 2018, OWCP denied appellant’s claim for wage-loss 

compensation as the medical evidence of record was insufficient to establish that he was disabled 

from work during the claimed period of December 12, 2016 through September 14, 2017 due to 

his accepted employment injury. In a separate decision of even date, it expanded acceptance of 

his claim to include myositis ossificans traumatic of the right thigh and an aggravation of unilateral 

primary osteoarthritis of the right hip.

On November 15, 2018 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review.

By decision dated January 18, 2019, the Board affirmed OWCP’s March 29 and April 26, 

2018 decisions.5 It found that appellant had not established that acceptance of his claim should be 

expanded to include right hip osteoarthritis, cervical myelopathy with radiculopathy, and lumbar 

radiculopathy causally related to the accepted December 10, 2015 employment injury. The Board 

further determined that OWCP properly denied his request for an oral hearing under 5 U.S.C. 

§ 8124(b).

By decision dated April 29, 2019, OWCP’s hearing representative vacated the 

November 7, 2018 decision denying appellant’s wage-loss compensation claim. He found that the 

medical evidence from appellant’s attending physician, Dr. Karl F. Bowman, Jr., a Board-certified 

orthopedic surgeon, was sufficient to warrant further development of the evidence. The hearing 

 

4 Docket No. 18-1238 (issued January 18, 2019).

5

Id.
3

representative instructed OWCP to refer appellant for a second opinion examination to determine 

all conditions caused or aggravated by the accepted employment injury and whether he had any 

resulting employment-related disability. 

On May 7, 2019 appellant, through counsel, requested reconsideration of OWCP’s denial 

of expansion of his claim to include additional conditions. In support of his request, he submitted 

an April 12, 2019 report from Dr. David D. Alcantara, a Board-certified physiatrist. 

On May 16, 2019 OWCP referred appellant to Dr. Kevin Hanley, a Board-certified 

orthopedic surgeon. In a report dated June 5, 2019, Dr. Hanley diagnosed employment-related 

myositis ossificans and a quadriceps contusion. He found that appellant had not aggravated his 

hip arthritis or any cervical or lumbar condition as a result of his December 10, 2015 employment 

injury. Dr. Hanley further opined that appellant was not disabled from December 12, 2016 to 

September 14, 2017 due to his employment injury.

By decision dated August 2, 2019, OWCP denied modification of its prior merit decision.6 

In reaching its determination, it referenced only the April 12, 2019 report from Dr. Alcantara. 

OWCP did not review or discuss the report of Dr. Hanley, a second opinion physician, who 

specifically addressed the issue of whether appellant sustained additional conditions as a result of 

the accepted employment injury.

The Federal Employees’ Compensation Act7 provides that, in deciding a claimant’s 

entitlement to compensation benefits, OWCP is required by statute and regulations to make 

findings of fact after considering the claim presented by the employee and after completing such 

investigation as it considers necessary with respect to the claim.8 The Board has held that OWCP 

should base its decision on all the evidence currently of record.9 A decision that rests on only part 

of the evidence will be set aside.10 In the case of William A. Couch,

11 OWCP had not reviewed 

medical evidence received prior to the issuance of its final decision which denied the claim. The 

Board set aside the final decision and remanded the case for OWCP to consider this evidence 

fully.12

 

6 OWCP indicated that it was denying modification of the Board’s January 18, 2019 decision; however, the 

decisions and orders of the Board are final as to the subject matter appealed and such decisions and orders are not 

subject to review, except by the Board. See 20 C.F.R. § 501.6(d).

7 5 U.S.C. § 8101 et seq.

8 5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or 

against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall 

contain findings of fact and a statement of reasons. See also Reyna M. Gonzalez, Docket No. 03-1023 (issued 

June 17, 2003).

9 D.G., Docket No. 17-0514 (issued May 4, 2018); Jovita Weaver, 2 ECAB 122 (1948).

10 L.T., Docket No. 19-0145 (issued June 3, 2018); Marshall G. Wright, 2 ECAB 182 (1949).

11 41 ECAB 548 (1990).

12 Id.
4

The August 2, 2019 OWCP decision failed to reference or to provide findings related to

Dr. Hanley’s report. 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.13

The Board cannot review such evidence for the first time on appeal.14 The case will be remanded 

to OWCP for proper consideration of the evidence of record. Following such further development 

as OWCP deems necessary, it shall issue a de novo decision on appellant’s request for claim 

expansion. 

IT IS HEREBY ORDERED THAT the August 2, 2019 decision of the Office of 

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

consistent with this opinion of the Board.

Issued: September 9, 2020

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

 

13 See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004).

14 20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).