United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer

__________________________________________

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Docket No. 22-0870

Issued: March 2, 2023

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On May 18, 2022 appellant, through counsel, filed a timely appeal from an April 26, 2022 

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

Appellate Boards assigned Docket No. 22-0870.

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,following the April26, 2022 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 on a different issue.

3

 The facts and 

circumstances as presented in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On June 10, 2004 appellant, then a 43-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his back due to repetitive heavy lifting on 

May 13, 2004. He stopped work on May 13, 2004. On June 5, 2009 OWCP accepted the claim 

for aggravation of cervical radiculopathy and aggravation of cervical degenerative disc disease. 4 

By decision dated September 6, 2012, OWCP terminated appellant’s wage-loss 

compensation, effective September 6, 2012, finding that appellant’s treating physician, Dr. Brian 

Foley, a physiatrist, had determined that appellant no longer had disability from work due to the 

accepted conditions. The record reflects that OWCP paid appellant wage-loss compensation from 

May 14, 2004 through September 6, 2012. 

On May 15, 2019 OWCP accepted appellant’s claim for recurrence of disability effective 

May 20, 2016. It noted that the accepted conditions also included the new condition of chronic 

cervical radiculopathy. OWCP requested appellant to file a completed claim for compensation 

(Form CA-7) through the employing establishment if he lost time from work due to his recurrence. 

On July 5, 2019 appellant filed a Form CA-7 for the period September 7, 2012 through 

July 5, 2019. No evidence was submitted in support of the claim. The record reflects that OWCP 

paid appellant wage-loss compensation commencing December 1, 2016 on its supplemental 

compensation rolls. 

In a July 22, 2019 development letter, OWCP advised appellant of the deficiencies in his 

claim, noting that he must submit medical evidence from a physician which included a history of 

his injury and a thorough explanation with objective findings, as to how his condition has worsened 

such that he was no longer able to perform the duties of his position when he stopped work. By

separate letter of even date, it requested additional evidence from the employing establishment. 

OWCP afforded each party 30 days to respond. 

OWCP subsequently received a February 3, 2009 report and an undated work capacity 

evaluation (Form OWCP-5c) from Dr. Ronald L. Young, a Board-certified neurosurgeon. In both 

documents he explained that appellant’s continued lifting activities at work permanently 

aggravated his degenerative disc disease and cervical radiculopathy and disabled appellant from 

his mail processing clerk position. Dr. Young related that appellant needed surgery. 

3 Docket No. 07-2427 (issued April16, 2008); Docket No. 18-0387 (issued April4, 2019). 

4 OWCP assigned the present claim OWCP File No. xxxxxx499. Appellant has a prior claim under OWCP File 

No. xxxxxx200, accepted for lumbar and cervical strains due to a December 12, 2003 work-related injury. The current 

case file, OWCP File No. xxxxxx499 a nd OWCP File xxxxxx200, as well as a denied claim for a January 29, 2004 

traumatic injury under OWCP File No. xxxxxx704 have been administratively combined by OWCP, with OWCP File 

No. xxxxxx499 serving as the master file.
3

By decision dated March 18, 2021, OWCP denied appellant’s claim for disability from 

work during the period September 7, 2012 through December 1, 2016, finding that no evidence 

was received in support of the claim. 

On January 26, 2022 appellant, through counsel, requested reconsideration and submitted 

additional evidence in support of wage-loss compensation for the period September 7, 2012 

through December 1, 2016. 

By decision dated April 26, 2022, OWCP denied modification of its March 18, 2021 

decision. It found that the evidence submitted on reconsideration was either duplicative of 

previous evidence of record or did not address appellant’s work capacity to “indicate a continuation 

of disability or a recurrence” during the period September 7, 2012 through November 30, 2016 

due to the accepted work injury. 

The Board, having duly considered the matter, concludes that this case is not in posture for 

decision.

In the case of William A. Couch,

5

the Board held that, when adjudicating a claim, OWCP 

is obligated to consider and address 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 the medical report from Dr. Young was not considered and addressed by 

OWCP. It is crucial that OWCP consider and address all evidence received prior to the issuance 

of its final decision, as the Board’s decisions are final with regard to the subject matter appealed.6 

The Board finds that this case is not in posture for decision as OWCP did not consider and address 

the above-noted evidence in its April 26, 2022 decision.7 On remand, OWCP shall consider and 

address all evidence of record and, following this and other such further development as deemed

necessary, it shall issue a de novo decision. Accordingly,

5

41 ECAB 548 (1990); see also R.D.,Docket No. 17-1818 (issued April3, 2018).

6

See Order Remanding Case, C.S.,Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 

475 (2004); see also WilliamA.Couch,id.

7

See Order Remanding Case, V.C.,Docket No. 16-0694 (issued August19, 2016).
4

IT IS HEREBY ORDERED THAT the decision dated April 26, 2022 is set aside and the 

case is remanded for further proceedings consistent with this order of the Board.

Issued: March 2, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board