United States Department of Labor

Employees’ Compensation Appeals Board

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D.B., Appellant

and

U.S. POSTAL SERVICE, MASSENA POST 

OFFICE, Massena, NY, Employer

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Docket No. 23-0543

Issued: October 26, 2023

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 12, 2023 appellant, through counsel, filed a timely appeal from a 

September 13, 2022 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0543.

On March 6, 2019 appellant, then a 44-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained left shoulder/bicep tendinitis due to factors 

of his federal employment.2 He noted that he first became aware of his condition and of its 

relationship to his federal employment on January 11, 2019. 

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 Appellant has previously accepted traumatic injury claims under OWCP File Nos. xxxxxx676 and xxxxxx340 

for a left shoulder contusion and a left shoulder injury respectively. OWCP has administratively combined these 

claims with the current claim, OWCP File No. xxxxxx631. OWCP File No. xxxxxx340 serves as the master file. 
2

By decision dated June 17, 2019, OWCP denied appellant’s occupational disease claim, 

finding that the medical evidence of record was insufficient to establish a diagnosed left shoulder 

condition causally related to the accepted factors of his federal employment. 

On March 19, 2020 appellant requested reconsideration.

By decision dated June 9, 2020, OWCP denied modification of its June 17, 2019

decision.

On June 8, 2021 appellant requested reconsideration. 

By decision dated September 1, 2021, OWCP denied modification of its June 9, 2020

decision. 

OWCP subsequently received a report dated March 16, 2022 from Dr. Joseph Thomas, 

Board-certified in occupational medicine. Dr. Thomas noted that appellant was seen for a 

follow-up evaluation of his work-related injuries. He further noted that appellant had an 

occupational disease claim for his left shoulder and had reinjured and reexacerbated his left 

shoulder several times while continuing to work. Appellant related increasing left shoulder pain 

and weakness, which Dr. Thomas advised were a consequence of his accepted work-related 

injuries.

OWCP also received a March 16, 2022 duty status report (Form CA-17) by Dr. Thomas,

who diagnosed left shoulder impingement due to injury. He advised that appellant could return 

to work with restrictions.

On September 1, 2022 appellant, through counsel, requested reconsideration. Counsel 

referenced medical reports dated January 6, 2020, and April 9 and July 7, 2021 from Dr. Nimesh 

Desai, a Board-certified internist, and contended that appellant’s claim should be accepted for 

left shoulder impingement syndrome and combined with his prior claims, and noted that 

appellant should receive medical treatment based on Dr. Desai’s reports. 

By decision dated September 13, 2022, OWCP denied appellant’s request for 

reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that it neither 

raised substantive legal questions, nor included relevant new evidence. It noted that the evidence 

on reconsideration included the September 1, 2022 request for reconsideration, which “cites

medical evidence that is not in the case file (Dr. Desai[‘s] January 6, 2020 report).” OWCP

indicated that “no new medical evidence has been submitted in support of your reconsideration 

request.”

The Board, having duly considered the matter, finds that this 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 review all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued.

3

41 ECAB 548 (1990).
3

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

that OWCP denied reconsideration without reviewing the evidence submitted after the 

September 1, 2021 merit decision, including the reports dated March 16, 2022 of Dr. Thomas. 

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. 4 As OWCP did not 

consider and address all of the evidence received following the September 1, 2021 decision, the 

Board cannot review such evidence for the first time on appeal.5

For this reason, the case will be remanded to OWCP to properly consider and address all 

of the evidence of record. Following this and other such further development as deemed 

necessary, OWCP shall issue an appropriate decision. Accordingly, 

IT IS HEREBY ORDERED THAT the September 13, 2022 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: October 26, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

4

See id.; Order Remanding Case, J.H., Docket No. 23-0082 (issued January 19, 2023); Order Remanding Case, 

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

5

20 C.F.R. § 501.2(c). See also J.H., id.; Order Remanding Case, G.M., Docket No. 16-1766 (issued 

February 16, 2017).