United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.L., Appellant

and

DEPARTMENT OF COMMERCE, NATIONAL 

TECHNICAL INFORMATION SERVICE, 

Springfield, VA, Employer

__________________________________________

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Docket No. 23-0383

Issued: October 17, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On January 17, 2023 appellant filed a timely appeal from a January 9, 2023 merit decision 

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

assigned the appeal Docket No. 23-0383. 

On September 24, 2004 appellant, then a 41-year-old inventory management specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on September 23, 2004 she sustained a 

lumbar injury with right-sided radiculopathy when she lifted several heavy boxes off a shelf while 

in the performance of duty. OWCP accepted the claim for a lumbar strain. It paid appellant wageloss compensation on the supplemental rolls, effective November 8, 2004, and on the periodic 

rolls, effective October 26, 2008.

On July 20, 2022 OWCP referred appellant, the medical record, and a statement of 

accepted facts (SOAF) to Dr. Andre Eglevsky, Jr., a Board-certified orthopedic surgeon. In a 

September 1, 2022 report and October 26, 2022 supplemental report, Dr. Eglevsky reviewed the 

medical record and SOAF. He opined that the accepted lumbar strain had ceased without disability 

or residuals and had not aggravated preexisting conditions.
2

On December 6, 2022 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits because she no longer had disability or residuals causally related to her 

accepted September 23, 2004 employment injury. It afforded her 30 days to submit additional 

evidence or argument, in writing, if she disagreed with the proposed termination. 

In response, appellant submitted a January 5, 2023 statement contending that the 

September 23, 2004 employment incident caused or aggravated lumbar disc herniations, lumbar 

radiculopathy, and degenerative disc disease, which continued to disable her for work.

On January 5, 2023 OWCP received additional evidence. Dr. Mirza S. Baig, a Boardcertified internist, provided notes dated September 24 and 30, 2004, and May 2, 2005, diagnosing 

back pain related to the employment injury. 

In a November 3, 2004 work slip, Dr. Ronald J. Bortnick, a Board-certified neurosurgeon,

held appellant off work from September 23, 2004 through January 1, 2005.

Dr. Tajammul Ehsan, a Board-certified neurologist, provided work slips holding appellant 

off work from February 15 through April 30, 2005.

In a December 15, 2014 work capacity evaluation (Form OWCP-5c), Dr. Amy Traylor, a 

neurologist, diagnosed chronic lumbar myofascial pain syndrome and noted work restrictions.

Dr. Michael S. Chung, a Board-certified physiatrist, prescribed a repeat magnetic 

resonance imaging (MRI) scan on February 22, 2017. In work capacity evaluation forms (Form 

OWCP-5c) dated February 12, 2020 and July 2, 2021, he diagnosed a herniated lumbar disc, 

lumbalgia, and right-sided lumbar radiculopathy. Dr. Chung also noted work restrictions. 

In a March 29, 2021 report, Dr. Sassan Hassassian, Board-certified in anesthesiology and 

pain medicine, diagnosed cervical spondylosis, lumbar disc degeneration, and lumbar spondylosis. 

OWCP also received an October 27, 2022 report by Brooke Utley, a licensed professional 

counselor.

In a response to an OWCP development questionnaire dated October 13, 2022, Dr. Grace 

Stonerock, a Board-certified family practitioner, diagnosed degenerative disc disease aggravated 

by the September 23, 2004 employment injury, reactive depression aggravated by chronic pain, 

and arthritis. She found appellant totally disabled from work.

In a December 8, 2022 report, Dr. Stonerock opined that the September 23, 2004 

employment injury caused radiculopathy, chronic pain, reactive insomnia, and aggravated 

degenerative disc disease and arthritis. She found appellant permanently disabled from work. In 

a December 23, 2022 Form OWCP-5c, Dr. Stonerock found appellant totally and permanently 

disabled from work due to arthritis, chronic pain, and depression.
3

By decision dated January 9, 2023, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits effective that day. It found that the opinion of

Dr. Eglevsky, the second opinion physician, represented the weight of the evidence and established 

that appellant no longer had disability or residuals due to her accepted employment injury. OWCP 

noted that it had “not received any additional evidence or argument in response to the Notice of 

Proposed Termination.”

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

decision.

In its January 9, 2023 decision, OWCP noted that it had “not received any additional 

evidence or argument in response to the Notice of Proposed Termination.” However, on January 5, 

2023, it had received appellant’s January 5, 2023 statement; Dr. Baig’s September 24 and 30, 2004 

and May 2, 2005 reports; Dr. Bortnick’s November 3, 2004 work slip; Dr. Ehsan’s work slips; 

Dr. Traylor’s December 15, 2014 report; Dr. Chung’s February 22, 2017, February 12, 2020, and 

July 2, 2021 reports; Dr. Hassassian’s March 29, 2021 report; Ms. Utley’s October 27, 2022 

report; and Dr. Stonerock’s October 13, December 8 and 23, 2022 reports. Accordingly, OWCP 

did not review all evidence received prior to the issuance of the January 9, 2023 termination 

decision.

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. 1 Because OWCP 

did not consider and address the medical evidence submitted by appellant following the notice of 

proposed termination, the Board cannot review such evidence for the first time on appeal. 2 The 

January 9, 2023 decision, therefore will be reversed. Accordingly,

1 The Board’s Rules of Procedure provides: “The Board’s review of a case is limited to evidence in the case record

which 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); R.D., Docket No. 17-1818 (issued April3, 2018); P.W.,

Docket No. 12-1262 (issued December 5, 2012).

2

Id.
4

IT IS HEREBY ORDERED THAT the January 9, 2023 decision of the Office of 

Workers’ Compensation Program is reversed.

Issued: October 17, 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