L.R. and Department of Homeland Security, U.S. Citizenship and Immigration Services, Tampa, FL (Board decision, January 8, 2024)

ECAB remand decision. The Board set aside OWCP's July 12, 2023 decision because it did not address a medical report received before that decision. OWCP must reconsider whether to add the claimed spinal conditions and issue a new decision; coverage remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

An immigration services assistant had an accepted lower back strain after lifting boxes at work. He later asked OWCP to recognize additional cervical, lumbar, and thoracic conditions. OWCP denied that request after receiving several medical reports. The Board found that OWCP's decision did not address a June 8, 2023 report from his doctor that had arrived before the decision. It set aside the denial and directed OWCP to consider that evidence and decide the claim expansion request again.

Decision snapshot

• Authority: OWCP duty to consider evidence received before its final decision.
• Outcome: July 12, 2023 OWCP decision set aside; claim expansion remanded.
• Key point: OWCP had to address a timely submitted medical report before deciding the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.R., Appellant
)
)
and ) Docket No. 23-1082
)
Issued: January 8, 2024
DEPARTMENT OF HOMELAND SECURITY, )
U.S. CITIZENSHIP AND IMMIGRATION )
SERVICES, Tampa, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Capp Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On August 5, 2023 appellant, through counsel, filed a timely appeal from a July 12, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-1082.

On August 11, 2017 appellant, then a 55-year-old immigration services assistant, filed a traumatic injury claim (Form CA-1) alleging that on August 9, 2017 he experienced pain and other symptoms in his mid and low back and both legs, after lifting boxes while in the performance of duty. He stopped work on August 10, 2017 and returned to work on August 11, 2017. By decision dated October 12, 2017, OWCP accepted appellant’s claim for strain of muscle, fascia, and tendon of lower back.

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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.

On June 2, 2021 appellant, through counsel, requested expansion of the acceptance of his claim to include aggravation of cervical and lumbar disc disease with stenosis and thoracic radiculopathy as causally related to the accepted August 9, 2017 employment injury.

By decision dated August 11, 2021, OWCP denied expansion of the acceptance of the claim to include additional conditions as causally related to the accepted August 9, 2017 employment injury.

On August 18, 2021 appellant, through counsel, requested a review of the written record by a representative of OWCP’s Branch of Hearings and Review. By decision dated November 18, 2021, OWCP’s hearing representative affirmed the August 11, 2021 decision.

On November 13, 2022 appellant, through counsel, requested reconsideration. By decision dated February 7, 2023, OWCP denied modification of the November 18, 2021 decision.

On May 8, 2023 appellant, through counsel, requested reconsideration.

In support thereof, appellant submitted additional evidence, including diagnostic reports dated May 3, 2009 and January 31, 2017.

In an April 6, 2023 report, Dr. Robert R. Reppy, an osteopath specializing in family medicine, related that appellant was seen for a follow up regarding neck and low back pain. He diagnosed status post cervical spinal fusion, bulging discs at L3-4, L4-5, and L5-S1, stenosis at L4-5, and thoracic radiculopathy.

In an April 25, 2023 report, Dr. Reppy reviewed appellant’s history of injury and treatment.
He diagnosed lumbar stenosis at L4-5, aggravation of cervical fusion at C6-7, and thoracic radiculopathy. Dr. Reppy described the mechanism of injury and opined that appellant’s accepted August 9, 2017 employment injury caused his cervical and lumbar stenosis. He further opined that symptoms stemming from the cervical fusion surgery were consequential to the employment injury and indicated that appellant was unable to work.

In a June 8, 2023 report, Dr. Reppy described appellant’s worsening symptoms and diagnosed status post cervical spinal fusion, bulging discs at L3-4, L4-5, and L5-S1, stenosis at L4-5, and thoracic radiculopathy.

By decision dated July 12, 2023, OWCP denied modification of the February 7, 2023 decision. It did not reference the June 8, 2023 report from Dr. Reppy.

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

In the case of William A. Couch,2 the Board held that, when adjudicating a claim, OWCP is obligated to consider and address 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

2
41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

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evidence submitted to the record, the record is clear that the June 8, 2023 report from Dr. Reppy was not reviewed by OWCP in its July 12, 2023 decision.3

As the Board’s decisions are final with regard to the subject matter appealed, it is crucial that OWCP consider and address all evidence received prior to the issuance of its final decision.4 For this reason, the case must therefore be remanded for OWCP to consider and address the above- noted evidence in its July 12, 2023 decision.5 Following this and other such further development as deemed necessary, it shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the July 12, 2023 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 8, 2024
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

3
See J.N., Docket No. 21-0086 (issued May 17, 2021); C.D., Docket No. 20-0168 (issued March 5, 2020).
4
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 2.
5
See V.C., Docket No. 16-0694 (issued August 19, 2016).

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