United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.P., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Renton, WA, Employer 

__________________________________________ 

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Docket No. 14-1228 

Issued: October 15, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On May 6, 2014 appellant, through counsel, filed a timely appeal from a March 11, 2014 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of the case. 

ISSUE 

The issue is whether appellant established continuing disability or residuals relating to his 

accepted conditions after October 6, 2010. 

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated March 2, 2012, the 

Board affirmed OWCP’s decision dated April 25, 2011. The Board determined that OWCP met 

 1

 5 U.S.C. §§ 8101-8193. 
2

its burden of proof to justify termination of compensation benefits, effective October 6, 2010, 

based on the reports of Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and an 

OWCP referral physician.2

 By decision dated April 3, 2013, the Board affirmed OWCP’s 

September 26, 2012 decision finding that appellant failed to establish continuing employmentrelated condition or disability after October 6, 2010.3

 The facts and circumstances of the case up 

to that point are set forth in the Board’s prior decision and incorporated herein by reference. 

On December 11, 2013 appellant, through his attorney, requested reconsideration. He 

asserted that OWCP erred in determining that he had not presented sufficient evidence to support 

the claim for compensation. Appellant asserted he continued to have work-related residuals after 

October 6, 2010. He submitted a May 22, 2012 report from Dr. Jeffrey L. Brown, an osteopath, 

which had previously been submitted by appellant and considered by OWCP in its decision dated 

September 26, 2012. 

In a decision dated March 11, 2014, OWCP denied modification of the prior decision. 

LEGAL PRECEDENT 

Once OWCP meets its burden of proof to terminate appellant’s compensation benefits, 

the burden shifted to him to establish that he had continuing disability causally related to his 

accepted employment injury.4

 To establish causal relationship between the claimed disability 

and the employment injury, appellant must submit rationalized medical opinion evidence based 

on a complete factual and medical background supporting such a causal relationship.5

ANALYSIS 

The Board finds that appellant has not established that he has any continuing residuals of 

his work-related neck sprain, on or after October 6, 2010. 

After the termination of benefits on October 6, 2010 and on reconsideration appellant 

resubmitted the May 22, 2012 report from Dr. Brown, which had previously been considered by 

 2

 Docket No. 11-1545 (issued March 2, 2012). Appellant’s claim had been accepted for a neck sprain. 

Dr. Swartz’s June 22, 2010 report noted an unremarkable examination of appellant’s lumbar and cervical spine. He 

found that appellant had no residuals of the March 24, 2009 injury. A July 20, 2010 electromyogram (EMG) 

revealed mild chronic bilateral C5-6 radiculopathy with mild right ulnar nerve entrapment at the wrist. In a 

July 28, 2010 supplemental report, Dr. Swartz advised that appellant sustained a cervical strain as a result of the 

motor vehicle accident on March 4, 2009 and had preexisting degenerative disc disease in the cervical spine. He 

noted that the EMG found evidence of chronic mild bilateral L5-S1 radiculopathy which was not active or evident 

clinically. Dr. Swartz noted that appellant sustained a self-limiting soft tissue strain of the cervical spine related to 

his work injury which resolved and his current symptoms were attributable to his preexisting degenerative disease. 

Appellant had reached maximum medical improvement on June 22, 2010, was working his regular job full time as 

an aircraft mechanic and required no further medical treatment referable to his work injury. 

3

 Docket No. 13-116 (issued April 3, 2013). 

4

 See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001). 

5 Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003). 
3

OWCP in its decision dated September 26, 2012 and the Board in its decision dated 

April 3, 2013. The Board previously found that this report was insufficient to meet his burden of 

proof.6

 Appellant did not adequately explain how resubmission of this report on reconsideration 

served to meet his burden of proof. 

The medical evidence submitted by appellant after the termination of benefits does not 

include a rationalized opinion sufficiently explaining the causal relationship between his current 

condition and his accepted work-related conditions. Consequently, appellant has not established 

that he had any employment-related condition or disability after October 6, 2010. 

As the Board has previously reviewed this evidence the issue of its weight is res judicata 

and not subject to further consideration by the Board. 

On appeal, counsel asserts that Dr. Brown provided support for causal relationship. As 

explained, however, the weight of that medical evidence has already been reviewed by the 

Board.7

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board further finds that appellant failed to establish that he had any continuing 

disability after October 6, 2010. 

 6 See supra note 3. Clinton E. Anthony, 49 ECAB 476 (1998). 

7 Id. 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Worker’s 

Compensation Programs dated March 11, 2014 is affirmed. 

Issued: October 15, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board