United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.A., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

EIELSON AIR FORCE BASE, Clear, AK, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0862

Issued: June 8, 2022

Appearances: Case Submitted on the Record

Kelley Craig, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On May 10, 2021 appellant, through counsel, filed a timely appeal from a November 16, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards docketed the appeal as No. 21-0862.

2

On March 22, 2016 appellant, then a 46-year-old steam plant supervisor/office worker, 

filed a traumatic injury claim (Form CA-1) alleging that on March 16, 2016 he sustained

depression and anxiety when he became aware of an Equal Employment Opportunity (EEO) 

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 Board notes that 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

complaint which cast him in a disparaging light. He indicated that he immediately felt depression 

and anxiety over the matter, and it adversely affected his preexisting conditions of diabetes and 

recovery from a recent orthopedic operation. Appellant stopped work on March 21, 2016.

In a development letter dated April 4, 2016, OWCP advised appellant that additional 

factual and medical evidence was necessary to establish his claim. It afforded him afforded 30 

days to submit the necessary evidence.

On May 10, 2016 OWCP denied appellant’s emotional condition claim, finding that the 

factual evidence of record was insufficient to establish that the claimed employment factors 

occurred, as alleged. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

On May 18, 2016 appellantrequested a hearingbefore a representative of OWCP’s Branch 

of Hearings and Review, which was held on January 24, 2017.

By decision dated March 1, 2017, OWCP’s hearing representative affirmed the May 10, 

2016 decision. The hearing representative noted that appellant claimed that his emotional

condition related to receiving an email indicating that an employee would be naming him in an 

EEO complaint. The hearing representative determined that the claim related to a personnel 

matter, and therefore did not occur in the performance of duty.

On February 28, 2018 counsel for appellant requested reconsideration. By decision dated 

June 15, 2018, OWCP denied modification of the March 1, 2017 decision.

On May 28, 2019 counsel for appellant again requested reconsideration.

By decision dated August 12, 2019, OWCP denied modification of the June 15, 2018 

decision. 

On August 11, 2020 appellant, through counsel, requested reconsideration, and submitted 

further argument and evidence. He explained that appellant was mistakenly forwarded an email 

from an employee with whom he shared an office. The employee was filing an EEO complaint 

that portrayed appellant in a false and disparaging light regarding the performance of his duties as 

a supervisor, which caused appellant immediate anxiety and depression and worsened his 

preexisting medical conditions. Counsel argued that the EEO complaint had been filed, and he

provided the docket number. He further argued that J.W., a supervisor, confirmed that the 

allegations in the EEO complaint were false. Counsel provided copies of emails dated February 7, 

8, and 9, and March 8 and 9, 2016, and October 24, 2017, from C.A. that detailed complaints of 

harassment and discrimination, involving appellant, and a May 6, 2020 email in which J.W. noted

that the coworker mistakenly sent the complaint to him and appellant. Counsel also provided a 

copy of a document entitled ratification action pertaining to the coworker. He submitted copies of 

Board decisions and argued that appellant had supported his factual allegations. Counsel also 

submitted a medical report from Dr. Mikki King Barker, an osteopath and Board-certified 

psychiatrist.

On August 14, 2020 counsel for appellant supplemented his request for reconsideration. 

He included an August 7, 2020 witness statement from J.W. regarding the email that was 
3

mistakenly forwarded to him and appellant. The statement indicated that the allegations in the 

email were false and misleading and included an explanation regarding the allegations.

By decision dated November 16, 2020, OWCP denied modification of the August 12, 2019 

decision. 

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

decision. In the case of William A. Couch,

3

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. 

As detailed above, on reconsideration counsel for appellant submitted additional evidence 

and argument regarding the EEO complaint. The record includes a copy of a document entitled 

ratification action pertaining to the co-worker, copies of Board decisions a medical report from

Dr. Barker, an August 14, 2020 supplemental request for reconsideration, and an August 7, 2020 

witness statement from J.W. OWCP, however, did not consider this additional evidence in its 

November 16, 2020 decision. It thus failed to follow its procedures by not considering all the 

relevant evidence of record.4

As Board decisions are final with regard to the subject matter appealed, it is crucial that 

OWCP address all relevant evidence received prior to the issuance of its final decision.5 The Board 

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

evidence in its November 16, 2020 decision.6 On remand, following any further development as 

deemed necessary, OWCP shall issue an appropriate decision.

3

41 ECAB 548 (1990); see L.B., Docket No. 21-0140 (issued August 25,2021); see K.B., Docket No. 20-1320 

(issued February 8, 2021); see also R.D., Docket No. 17-1818 (issued April3, 2018).

4 OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision. 

Evidence received following development that lacks probative value also should be acknowledged. Whenever 

possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 --Claims, 

Initial Denials,Chapter 2.1401.5(b)(2) (November 2012).

5 E.D., Docket No. 20-0620 (issued November 18, 2020); see C.S., Docket No. 18-1760 (issued November 25, 

2019); YvetteN. Davis, 55 ECAB 475 (2004); see also WilliamA. Couch, supranote 3.

6 D.S., Docket No. 20-0589 (issued November 10, 2020); see V.C., Docket No. 16-0694 (issued August19, 2016).
4

IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of 

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

proceedings consistent with this order of the Board.

Issued: June 8, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board