United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.E., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES A. HALEY VETERANS’ HOSPITAL, 

Tampa, FL, Employer

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Docket No. 22-0643

Issued: July 17, 2023

Appearances: Case Submitted on the Record

Wayne Johnson, 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

JANICE B. ASKIN, Judge

On March 27, 2022 appellant, through counsel, filed a timely appeal from a September 28, 

2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards assigned the appeal Docket No. 22-0643.

This case has previously been before the Board.2 The facts and circumstances as set forth 

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

follows. 

On January 26, 2015 appellant, then a 40-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on January 23, 2015 he sustained a low back injury when he lifted a 

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 Docket No. 20-0421 (issued May 17, 2021).
2

500-pound patient from a stretcher to a bed while in the performance of duty. He stopped work 

on January 26, 2015. OWCP accepted appellant’s claim for lumbar herniated nucleus pulposus at 

L4-5 and subsequently expanded acceptance of his claim to include displacement of lumbar 

intervertebral disc without myelopathy, osseous and subluxation stenosis of the intervertebral 

foramina of the lumbar region, and postlaminectomy syndrome. It paid him wage-loss 

compensation on the supplemental rolls, effective March 12, 2015 and on the periodic rolls, 

effective April 5, 2015. 

On July 12, 2016 the employing establishment offered appellant an alternate light-duty 

assignment as a registered nurse. The job offer indicated that the duties were within the restrictions 

specified by Dr. William Dinenberg, a Board-certified orthopedic surgeon and second opinion 

examiner, in his May 27, 2016 report.

On July 20, 2016 appellant returned to full-time, modified-duty work. 

On September 7, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) 

for disability from work for the period August 22 through September 3, 2016. On the reverse side 

of the claim form, the employing establishment verified that he was on leave without pay status 

from August 22 through September 2, 2016. 

In a completed questionnaire signed on October 11, 2016 appellant contended that when 

he returned to modified-duty work on July 19, 2016 he was supposed to be seated doing admissions 

and discharges, but in reality he was standing and walking for eight hours per day. 

By decision dated October 14, 2016, OWCP denied appellant’s claim for a recurrence of 

disability for the period August 22 through September 3, 2016. It found that the medical evidence 

of record was insufficient to establish that he was disabled from work during the claimed period 

due to a material change/worsening of his accepted employment-related conditions. 

Appellant, through counsel, requested reconsideration on December 22, 2016, March 22, 

2018, and June 19, 2019. By decisions dated March 22, 2017, June 19, 2018, and June 27, 2019,

OWCP denied modification of its prior decisions. 

On December 13, 2019 appellant appealed the June 27, 2019 OWCPdecision to the Board. 

By decision dated May 17, 2021, the Board set aside OWCP’s June 27, 2019 decision and

remanded the case for OWCP to request clarification from the employing establishment regarding

appellant’s limited-duty assignment, followed by a de novo decision. 

By letters dated July 15 and September 3 and 22, 2021, OWCP requested that the 

employing establishment address appellant’s allegation that, when he returned to modified duty in 

July 2016, he was standing and walking all day instead of performing work in a seated position. 

It also requested that the employing establishment clarify whether there was a change in his

modified-duty assignment during the period August 22 through September 3, 2016. 

In an email dated September 27, 2021, E.R., a nurse manager at the employing 

establishment, indicated that appellant was on a light-duty assignment from August 22 through 

September 3, 2016. She reported that his primary duties included reviewing veteran medical 

records and noted that his work duties and assignments had not changed recently. 
3

By decision dated September 28, 2021, OWCP denied modification of its prior decision. 

The attached appeal rights listed only the right to request reconsideration or the right to request a 

Board appeal. It did not include the right to request an oral hearing or the right to request for a 

review of the written record.

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

decision.

By decision dated May 17, 2021, the Board set aside OWCP’s June 27, 2019 decision and 

remanded the case for OWCP to request clarification from the employing establishment regarding 

appellant’s limited-duty assignment, followed by a de novo decision. As such, the September 28, 

2021 decision should have included full appeal rights, including the right to a hearing. 3 The 

September 28, 2021 decision denied modification of the June 27, 2019 recurrence decision; 

however, the appeal rights attached included only that appellant could request reconsideration or 

file an appeal with the Board. OWCP did not issue an appropriate de novo decision addressing his

recurrence claim as so instructed by the Board.

The Board has final authority to determine questions of law and fact. The Board’s 

decisions are binding upon OWCP and must, of necessity, be so accepted and acted upon by 

OWCP.4 As OWCP failed to issue a de novo decision, it did not follow the Board’s instructions 

in its May 17, 2021 decision and deprived appellant of his full appeal rights. The case is, therefore, 

again remanded for OWCP to, following any further development deemed necessary, issue a

de novo decision with full appeal rights.

Accordingly, the case must be remanded for OWCP to issue a proper de novo decision 

regarding appellant’s recurrence claim with full appeal rights.

3

See P.B., Docket No. 21-0723 (issued April 13, 2022); J.I., Docket No. 13-1414 (issued April 24, 2014).

4

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84 (1949). See also J.S. 

Docket No. 12-622(issued September 12, 2012);L.C., Docket No. 09-1816 (issued March 17, 2010) (OWCP did not

follow the Board’s instructionsin ascertaining the information necessary to determine pay rate); Frank W. White, 42 

ECAB 693 (1991)(the Board’s order in a prior appeal imposed an obligation on the Director to take particular actions 

as directed).
4

IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of 

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

consistent with this decision of the Board.

Issued: July 17, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board