United States Department of Labor

Employees’ Compensation Appeals Board

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L.I., Appellant

and

U.S. POSTAL SERVICE, BAYSIDE POST 

OFFICE, Brooklyn, NY, Employer

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Docket No. 23-0471

Issued: December 26, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 February 17, 2023 appellant, through counsel, filed a timely appeal from a February 1, 

2023 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of 

the Appellate Boards assigned the appeal Docket No. 23-0471.

On June 2, 2022 appellant, then a 41-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that day he dislocated his right shoulder and injured his right hip and 

foot when his right foot got stuck in a hole causing him to fall down, while in the performance of 

duty.

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 February 1, 2023 decision, appellant submitted additional evidence to OWCP. 

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

By development letter dated June 9, 2022, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence necessary to establish his 

claim and provided a questionnaire for his completion. OWCP afforded both parties 30 days to 

respond.

In a June 9, 2022 response, the employing establishment controverted the claim and alleged 

that it obtained a video recording from a nearby business which showed that appellant fell to the 

ground on the left side of his body, then repositioned himself with his right shoulder on the ground 

until a supervisor arrived at the scene. It also noted that a text message with a co-worker revealed 

that prior to his injury, appellant inquired about continuation of pay (COP) and disability 

insurance. The employing establishment provided photographs; however, a copy of the video 

recording was not provided.

By decision dated July 11, 2022, OWCP denied appellant’s traumatic injury claim,finding 

that the evidence of record was insufficient to establish that the June 2, 2022 employment incident 

occurred as alleged. It noted that he had not responded to its development letter and concluded 

that the requirements had not been met to establish an injury as defined by FECA.

On July 12, 2022 appellant requested reconsideration.

OWCP received appellant’s response to its development questionnaire relating that his 

right foot got stuck in a hole in the concrete which caused him to fall. Appellant related that he 

felt his right shoulder pop, causing severe pain, and when emergency services moved him onto a 

stretcher, he felt his shoulder pop back in. He noted that he had no symptoms prior to his injury 

and had undergone a prior shoulder surgery in 1999. Appellant indicated that his fall was 

legitimate, he took his relay bag out and when he placed it on the ground his foot became stuck in 

a hole in the concrete. He explained that prior to his fall, he had inquired about disability insurance 

because his wife had asked about it after a supervisor had recently died at the age of 43. Appellant 

also noted that a couple of coworkers had disability insurance, and he wanted to know which

insurance company they used. He related that he had contacted his supervisor immediately after 

his fall.

In an October 21, 2022 agency response, V.P., from the employing establishment, noted 

that the video recording on file showed that the incident did not occur in the manner alleged by 

appellant. V.P. explained that the video recording showed that appellant positioned himself on the 

ground and did not trip and fall as alleged.

By letter dated October 27, 2022, counsel requested a copy of the video recording for 

review.

By decision dated February 1, 2023, OWCP denied modification of the prior decision.

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

decision. 

As noted above, the employing establishment indicated that it had possession of a video 

recording from a nearby business which showed that appellant fell to the ground on the left side 

of his body, then repositioned himself with his right shoulder on the ground until a supervisor 

arrived at the scene. However, while the employing establishment provided photographs, a copy 
3

of the video recording was not provided. The employing establishment should provide any 

relevant information that is normally in its exclusive control.3 OWCP must, therefore, further 

develop this factual aspect of the case before a full and fair determination can be made regarding 

whether the June 2, 2022 employment incident occurred as alleged.4

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.5 While the claimant has the responsibility to establish entitlement to 

compensation, OWCP shares responsibility in the development of the evidence. It has the 

obligation to see that justice is done.6

On remand, OWCP shall obtain the video recording from the employing establishment and 

provide a copy to counsel. Following this and other such development deemed necessary, OWCP 

shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the February 1, 2023 decision of the Office of 

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

proceedings consistent with this order of the Board.

Issued: December 26, 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

3

See S.B., Docket No. 22-1346 (issued June 1, 2023).

4

See id.; S.N., Docket No. 21-0258 (issued October 19, 2021); see also J.V., Docket No. 17-0973 (issued 

July 19, 2018).

5 N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., 

Docket No. 17-1360 (issued January 10, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6C.L., Docket No. 20-1631 (issued December 8, 2021);L.B., Docket No. 19-0432 (issued July 23, 2019); Donald R. 

Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).