United States Department of Labor

Employees’ Compensation Appeals Board

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J.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WESTERN NEW YORK HEALTHCARE 

SYSTEM, BUFFALO VA MEDICAL CENTER,

Buffalo, NY, Employer

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Docket No. 23-0082

Issued: January 19, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On October 26, 2022 appellant filed a timely appeal from an August 2, 2022 nonmerit

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

Boards assigned the appeal Docket No. 23-0082.

This case was previously before the Board.1 The facts and circumstances as set forth in

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

On March 21, 2019 appellant, then a 48-year-old psychiatric nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on March 15, 2019 she sustained a back injury when an 

uncooperative patient she was escorting to a seclusion room attempted to pull her to the ground 

while kicking and swinging his body and arms while in the performance of duty. She stopped 

work on the date of injury.

By decision dated May 2, 2019, OWCP accepted that the March 15, 2019 employment 

incident occurred. However, it denied appellant’s traumatic injury claim, finding that she had not 

1 Docket No. 20-1414 (issued April5, 2022).
2

submitted evidence containing a medical diagnosis in connection with the injury and/or events. 

Thus, OWCP concluded that the requirements had not been met to establish an injury as defined 

by FECA. 

OWCP continued to receive evidence.

On October 21, 2019 appellant requested reconsideration. 

By decision dated January 23, 2020, OWCP modified the May 2, 2019 decision, finding 

that a valid diagnosis of mid-to-lower back strain, cervical disc displacement at C5-6, and 

spondylosis with radiculopathy of the cervical region. However, the claim remained denied as the 

medical evidence of record was insufficient to establish a causal relationship between the 

diagnosed conditions and the accepted March 15, 2019 employment incident.

On May 13, 2020 appellant requested reconsideration of the January 23, 2020 decisionand 

submitted additional evidence. 

By decision dated May 20, 2020, OWCP denied modification of the January 23, 2020 

decision. 

On July 22, 2020 appellant filed a timely appeal with the Board. By decision dated April 5, 

2022,2the Board affirmed the May 20, 2020 decision.

OWCP received additional evidence following the May 20, 2020 decision, including a 

June 25, 2020 narrative report by Dr. John Fahrbach, a Board-certified neurosurgeon, who noted 

that he performed surgery on appellant’s neck, including a posterior cervical lamina 

foraminotomy. Dr. Fahrbach included the history of the accepted March 15, 2019 employment 

incident and diagnosed left C6 radiculopathy, resolved, and right lateral epicondylitis. He opined 

that appellant’s left upper extremity pain was caused by the employment incident and further 

indicated that her right elbow complaints occurred during postoperative physical therapy. 

OWCP also received a November 4, 2020 report by Dr. Robert Roche, a Board-certified 

family physician, who examined appellant on October 27, 2020 and reviewed her treatment with

Dr. Fahrbach. Dr. Roche opined that she had permanent deficits in range of motion and strength 

in the left upper extremity. 

Additionally, OWCP received a December 9, 2020 report by Dr. Thomas J. Pfiffner, a 

Board-certified neurologist, and a January 18, 2021 report by Carrie A. Fox, a nurse practitioner. 

This evidence pertained to treatment of migraines and cervicalgia. 

On May 24, 2022 appellant requested reconsideration and enclosed an additional copy of

Dr. Fahrbach’s June 25, 2020 report.

By decision dated August 2, 2022, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), finding that her request for 

2

Id.
3

reconsideration neither raised a specific legal argument not previously considered, nor included 

relevant new evidence. It noted that the evidence on reconsideration included the May 24, 2022 

request for reconsideration and the first page of Dr. Fahrbach’s June 25, 2020 report, which “was 

previously submitted and specifically reviewed in the April 5, 2022 decision.”

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 consider 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, the record is clear 

that OWCP denied reconsideration without reviewing the evidence submitted after the May 20, 

2020 merit decision, including the June 25, 2020 report of Dr. Fahrbach, the November 4, 2020 

report by Dr. Roche, the December 9, 2020 report by Dr. Pfiffner, and the January 18, 2021 report 

by Ms. Fox. 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 all of the evidence received following the May 20, 2020 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 all of the evidence 

of record.6 Following this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision.

3

41 ECAB 548 (1990).

4

See 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 Order Remanding Case, G.M., Docket No. 16-1766 (issued February 16, 2017).

6 Order Remanding Case, J.H.,Docket No. 22-1202 (issued November 30, 2022).
4

IT IS HEREBY ORDERED THAT the August 2, 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: January 19, 2023

Washington, DC

Alec J. Koromilas, 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