United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 16-0010 

Issued: April 1, 2016 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 2, 2015 appellant, through counsel, filed a timely appeal from a June 16, 

2015 merit decision and an August 20, 2015 nonmerit 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 this 

case. 

ISSUES 

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits on March 5, 2015 because the accepted conditions 

had resolved with no residuals; (2) whether appellant established that she had any continuing 

employment-related disability or condition after March 5, 2015; and (3) whether OWCP properly 

refused to reopen her claim for further review of the merits pursuant to 5 U.S.C. § 8128(a). 

On appeal counsel asserts that the decisions are contrary to law and fact. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 2, 1990 OWCP accepted that appellant, then a 24-year-old letter carrier, 

sprained her left ankle when she fell while delivering mail on June 18, 1990. Appellant began 

modified duty and received intermittent compensation. In 1995 she came under the care of 

Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon. 

On August 9, 1996 appellant filed a claim for a schedule award (Form CA-7). In an 

August 19, 1996 decision, OWCP denied the claim because the medical evidence failed to 

establish left lower extremity permanent impairment due to the June 18, 1990 employment 

injury. Appellant again filed a claim for a schedule award in October 2002. By decision dated 

August 4, 2003, she was granted a schedule award for 28 percent permanent loss of use of the 

left leg. 

Appellant continued modified duty, based on restrictions provided by Dr. Chmell who 

recommended that she have a sitting job with no prolonged walking or standing.2 On July 11, 

2005 Dr. Chmell noted that a magnetic resonance imaging (MRI) scan of the left ankle revealed 

no gross abnormalities,3 but he continued her restrictions. On August 29, 2005 Dr. Chmell 

reported that appellant complained of problems with her right foot. He advised that she walked 

with a prominent limp on the left side, had examination findings of bilateral ankle swelling with 

crepitus and tenderness, and swelling and tenderness on the right beneath the medial malleolus. 

Dr. Chmell diagnosed worsened left ankle derangement and right ankle derangement and right 

posterior tibial tendinitis. 

In correspondence dated October 25, 2005, Dr. Chmell described appellant’s condition, 

noting that she had to walk and stand to excess on a cold cement surface at work. He maintained 

that her right ankle and foot derangement were consequential conditions of the left foot work 

injury and asked that the condition be accepted. On January 31, 2006 Dr. Chmell advised that 

standing and walking should be limited to one to two hours daily. 

On June 16, 2006 OWCP referred the medical record to its adviser as to whether a 

consequential right ankle condition should be accepted. 

In a June 21, 2006 report, Dr. Benjamin P. Crane, a Board-certified orthopedic surgeon 

and OWCP medical adviser, reviewed the record and concluded that right posterior tibial 

tendinitis was a consequential condition that resulted from the altered gait from the June 18, 

1990 left ankle sprain. On June 28, 2006 OWCP accepted right posterior tibial tendinitis. 

A July 20, 2006 MRI scan of the right ankle demonstrated no abnormality. 

On September 11, 2006 appellant filed a recurrence claim (Form CA-2a). She stated that 

she stopped work on September 7, 2006 because she was working outside her restrictions. 

 2

 A rehabilitation distribution window clerk position was accepted by appellant on August 21, 2001. Standing, 

sitting, and walking were not to exceed one hour. 

3

 A copy of the MRI scan report is not found in the case record. 
3

P. Powell, a customer service supervisor, advised that appellant worked as a lobby director 

where she sat on a stool and assisted customers, and that appellant had returned to work on 

September 22, 2006. Appellant also filed a Form CA-7, claim for compensation, for the period 

September 7 to 21, 2006. 

In reports dated September 11 to 21, 2006, Dr. Chmell advised that appellant could not 

work for the period September 7 through 21, 2006 and that she needed a sitting job. He 

reiterated his restrictions and advised that appellant could return to restricted duty on 

September 22, 2006. In reports dated October 23, 2006, Dr. Chmell diagnosed bilateral ankle 

and foot derangements and bilateral tibialis tendinitis. He advised that she needed a sitting job 

and provided permanent daily restrictions of six to seven hours sitting, one to two hours walking 

and standing, no twisting, bending, stooping, pushing, pulling, squatting, kneeling, or climbing 

and one to two hours lifting 15 pounds. On November 27, 2006 Dr. Chmell noted that appellant 

was working at a new duty station in a mainly sitting job within her restrictions. 

By decision dated December 28, 2006, OWCP denied appellant’s claimed disability from 

work beginning September 7, 2006, noting that the evidence did not support that appellant was 

working outside her restrictions and because Dr. Chmell did not explain why she could not 

perform her modified job duties. 

Dr. Chmell submitted monthly reports describing appellant’s lower extremity condition 

and reiterating his restrictions. A February 23, 2008 MRI scan of the right ankle demonstrated a 

trace amount of fluid which he determined could represent a minimal-to-mild tenosynovitis. On 

March 20, 2008 Dr. Chmell advised that appellant had a flare-up of pain and swelling in both 

ankles. He advised that appellant could not work from March 20 through 30, 2008 and could 

return to limited duty on March 31, 2008. In reports dated April 17 to July 3, 2008, Dr. Chmell 

noted that appellant had returned to restricted duty and advised that she had reached maximum 

medical improvement for the diagnosed bilateral ankle/hind foot derangement with tendinosis 

and that she had permanent impairment. 

On June 1, 2008 appellant filed a schedule award claim. On January 14, 2009 she was 

granted a schedule award for 29 percent impairment of the right leg. 

Dr. Chmell continued to submit monthly reports. On June 28, 2012 he reported that 

appellant’s feet, particularly the left foot, were getting worse and she had difficulty walking and 

standing. Dr. Chmell described examination findings of crepitus and tenderness in the posterior 

tibialis tendon with associated weakness, worse on the left. He diagnosed tendinitis of both 

ankles and feet, bilateral ankle and foot derangement, ganglion cysts of both ankles, left foot first 

metatarsalgia, and right-sided lumbago. 

Appellant stopped work on July 26, 2012 and filed a claim for compensation (Form 

CA-7). On July 26, 2012 Dr. Chmell reported that appellant had continued left ankle and foot 

pain and had developed painful venous varicosities in the right leg. He reiterated his diagnoses, 

adding that aggravation of venous varicosities in the right leg were secondary and consequential 

to his previous diagnoses. Dr. Chmell concluded that appellant’s condition had deteriorated 

considerably and she was fully incapacitated for duty. 
4

OWCP asked its medical adviser to again review the record and address whether the left 

posterior tibial tendinitis or right venous varicosities were a consequence of the accepted left 

ankle sprain and right tibial tendinitis. In an August 11, 2012 report, Dr. Christopher Gross, a 

Board-certified orthopedic surgeon and OWCP medical adviser, noted his review of the record 

since July 2010. He indicated that copies of recent MRI scans of the left ankle were not in the 

record. The medical adviser described the June 18, 1990 work injury and accepted conditions 

and discussed the factors that could cause venous varicosities. He recommended that OWCP 

reject acceptance of right venous varicosities as employment related and requested additional 

records, including the MRI scan reports and medical records dating back to the employment 

injury, to confirm a diagnosis of left posterior tibialis tendinitis and prove causation. 

Appellant continued to submit claims for compensation. 

A July 5, 2012 MRI scan of the left foot showed no evidence of internal derangement 

involving the forefoot. A left ankle MRI scan of that day demonstrated mild posterior tibial 

tenosynovitis and mild spur formation, and likely bone marrow edema. In a September 10, 2012 

report, Dr. Chmell noted treating appellant for over 10 years for work injuries and described 

MRI scan findings. He opined that her work-related condition had progressively worsened with 

pain, swelling, crepitus, tenderness, and diminished strength and motion of her ankles and feet, 

especially on the left. Dr. Chmell asserted that this was due to work activities of walking and 

standing on a hard cement surface. He diagnosed worsening/aggravation of bilateral posterior 

tibial tendinitis and aggravation of navicular bone spur and bone bruise on the left. Dr. Chmell 

found that she was unable to work. 

By letter dated September 14, 2012, OWCP informed appellant that no action could be 

taken on her CA-7 claims, awaiting resolution of whether additional conditions were 

employment related. 

OWCP forwarded the medical adviser’s August 11, 2012 report to Dr. Chmell for review. 

In a September 21, 2012 response, Dr. Chmell disagreed with Dr. Gross’ conclusion that 

appellant’s venous varicosities were not work related, stating that his physical restrictions had 

not been honored by the employing establishment and that this had caused a material worsening 

of her condition which led to right-sided venous stasis and venous varicosities as a consequential 

condition. He opined that, for the same reasons, her left ankle sprain had worsened, leading to 

the development of posterior tibial tendinitis on the left, as demonstrated on a recent MRI scan. 

Dr. Chmell continued to advise that appellant could not work. 

OWCP found that a conflict in medical evidence had been created between Dr. Chmell 

and Dr. Gross regarding whether the conditions of left tibialis tendinitis and right venous 

varicosities were employment related. In October 2012 it referred appellant, along with a 

statement of accepted facts (SOAF) and the medical record, to Dr. Mukund Komanduri, a Boardcertified orthopedic surgeon, for an impartial medical evaluation. 

In a November 26, 2012 report, Dr. Komanduri noted the history of injury and his review 

of the medical record. He described appellant’s current complaint of severe pain with weightbearing on the left. Dr. Komanduri reported that examination confirmed varicosities in both legs 

but that he was unable to identify evidence of posterior tibial tendon weakness bilaterally, noting 
5

that palpation confirmed intact tendons, and while there was diffuse edema and swelling present 

in the lower extremities, this was associated with venous dilatation and varicosities. He found no 

evidence of significant loss of ankle range of motion. Dr. Komanduri advised that he was at a 

loss to explain how someone could undergo more than 20 years of treatment for an alleged ankle 

sprain, noting that the diagnosis of posterior tibial tendinitis was made after multiple negative 

MRI scans over the past decade, and even when finally noted on a 2012 MRI scan, it was very 

modest. He opined that appellant’s varicosities were age related and due to venous 

incompetence, and not due to accepted diagnoses. Dr. Komanduri found no substantial evidence 

of posterior tibial tendinitis on MRI scan or on her examination and indicated that he could not 

imagine a scenario where posterior tibial tendinitis required treatment for more than six months, 

noting that if there had been posterior tibial tendinitis for 10 to 20 years, it would have resulted 

in a rupture long before the present. He concluded that appellant only had venous stasis at the 

time of his examination. In answer to OWCP questions, Dr. Komanduri advised that the 

diagnosis of left posterior tibial tendinitis was barely supported on the most recent MRI scan and 

was not clinically supported, and that her right venous varicosities were not employment related. 

He concluded that appellant had no residuals or physical limitations resulting from the June 18, 

1990 work injury and that she was released to full duty. Dr. Komanduri recommended treatment 

for the nonemployment-related varicosities and noted that she was receiving repetitive 

prescriptions for narcotics which, he maintained, were not required for her diagnoses. 

 Appellant continued to submit compensation claims. In November 15 and December 27, 

2012 reports, Dr. Chmell described her medical management, reiterated his diagnoses and 

conclusions, and advised that appellant was totally disabled. 

On January 24, 2013 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits. It found that Dr. Komanduri’s opinion that she no longer had disability or 

residuals due to the accepted conditions constituted the weight of the medical evidence. 

In January 17, 2013 correspondence, received on January 28, 2013, Dr. Chmell disagreed 

with Dr. Komanduri’s findings. He reiterated his opinion that appellant had employment-related 

left posterior tibial tendinitis. On February 11 and 19, 2013 Dr. Chmell disagreed with the 

proposed termination, opining that appellant had continuing residuals and disability due to her 

work-related conditions. He continued to provide treatment notes describing appellant’s status 

and finding her totally disabled. 

Appellant retired on disability, effective September 6, 2013. 

By decision dated December 4, 2013, OWCP found that the weight of the medical 

evidence rested with the referee opinion of Dr. Komanduri and finalized the termination of 

wage-loss compensation and medical benefits, effective November 25, 2013. It also denied 

appellant’s claim for wage-loss compensation for the period July 12, 2012 through March 13, 

2013 because the record did not support disability for work during this period. 

Appellant timely requested a hearing before an OWCP hearing representative, and 

submitted an April 10, 2014 report in which Dr. Chmell maintained that her accepted conditions 

were permanent, with continuing residuals. 
6

Following a preliminary review of the record, an OWCP hearing representative found 

that no conflict existed between the opinions of Dr. Chmell and the medical adviser because the 

opinion of the medical adviser was not of equal weight to that of Dr. Chmell. Thus, it was 

improper for OWCP to give special weight to the opinion of Dr. Komanduri. OWCP’s hearing 

representative found that a conflict in medical evidence existed between the opinions of 

Dr. Chmell and Dr. Komanduri regarding whether the left posterior tibial tendinitis or right 

venous varicosities were caused or aggravated by the June 18, 1990 employment injury and 

whether appellant had residuals of the accepted conditions. She reversed the December 4, 2013 

decision and ordered OWCP to arrange an appropriate referee examination. 

In November 2014, OWCP referred appellant, a SOAF noting the accepted conditions, 

the medical record, and a set of questions to Dr. Ira B. Kornblatt, a Board-certified orthopedic 

surgeon, for an impartial evaluation. Dr. Kornblatt was asked if the left posterior tibialis 

tendinitis and right venous varicosities diagnoses were established and, if so, were they caused or 

aggravated by the work injury, and whether appellant continued to have residuals of the accepted 

injury. 

In a December 3, 2014 report, Dr. Kornblatt noted his review of the SOAF and medical 

record. He described the history of injury and appellant’s complaint of right ankle pain. On 

examination, appellant walked without a limp and had full painless range of motion of the hips 

and knees. Dr. Kornblatt advised that appellant had pes planovalgus4

 bilaterally and wellmaintained ankle, hindfoot, midfoot, and forefoot range of motion. He noted no swelling and 

indicated that appellant had excellent strength with regard to the posterior tibial tendon 

bilaterally. Dr. Kornblatt advised that he reviewed both the report and images of a July 2012 

MRI scan of the left foot and ankle which was consistent with mild posterior tibial tendinitis. He 

further advised that right venous varicosity was a presumed diagnosis, based on localized 

swelling and palpation of an area in the right lower extremity. Dr. Kornblatt opined that there 

was no evidence that the June 18, 1990 employment injury resulted in right venous varicosities 

or ongoing posterior tibial tendinitis, noting that her pes planovalgus predisposed appellant to 

tibial tendinitis, and that the June 18, 1990 employment injury may have resulted in a temporary 

aggravation. He noted that appellant had not worked in a year and a half. Dr. Kornblatt 

indicated that appellant had no work-related disability as a result of the 1990 left ankle sprain 

and any present disability was due to the degenerative process due to her foot and ankle anatomy 

and obesity. He concluded that on his examination there were no objective findings to 

substantiate ongoing subjective complaints and, as such, there was no evidence of residuals of 

the 1990 employment injury, and further treatment for this injury was not needed. 

 Dr. Chmell continued to submit monthly reports reiterating his findings and conclusions. 

On January 22, 2015 OWCP proposed to terminate appellant’s medical and wage-loss 

compensation benefits based on Dr. Kornblatt’s opinion. 

In a letter dated February 6, 2015, Dr. Chmell disagreed with the proposed termination. 

He maintained that Dr. Kornblatt’s reasoning was not sound or well rationalized. 

 4

 Pes planovalgus is a condition wherein the longitudinal arch of the foot is flattened and turned outward. The 

American Heritage Medical Dictionary (2007). 
7

By decision dated March 5, 2015, OWCP finalized the termination of benefits, effective 

that day, finding that the weight of the medical evidence rested with the referee opinion of 

Dr. Kornblatt. 

On March 19, 2015 appellant requested reconsideration and submitted a February 26, 

2015 treatment note in which Dr. Chmell described appellant’s complaints, examination 

findings, and reiterated his diagnoses. 

In a merit decision dated June 16, 2015, OWCP denied modification of the March 5, 

2015 decision. 

On July 21, 2015 appellant again requested reconsideration. She submitted a July 10, 

2015 letter in which Dr. Chmell cited section 702.411(a) and (b) of OWCP regulations and 

section 5.200.10 of OWCP’s procedures to support his opinion that the reports of Dr. Komanduri 

and Dr. Kornblatt were invalid because OWCP rules and regulations had been violated. 

Dr. Chmell maintained that the above-cited provisions explicitly stated that the examining 

physician could not be apprised of opinions, reports, or conclusions of any other physician with 

regard to the nature of an employee’s injury. 

In a nonmerit decision dated August 20, 2015, OWCP denied merit review. It found the 

regulation and procedure manual provision he cited were irrelevant to the instant case, noting 

that OWCP followed appropriate procedures in this case. 

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits. It may not terminate compensation 

without establishing that the disability ceased or that it is no longer related to the employment.5

 

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.6

 

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability. To terminate authorization for medical treatment, OWCP must 

establish that a claimant no longer has residuals of an employment-related condition that requires 

further medical treatment.7

 

ANALYSIS -- ISSUE 1 

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits on March 5, 2010. The accepted conditions in this case are 

left ankle sprain and consequential right tibial tendinitis, caused by a June 18, 1990 employment 

injury. OWCP determined that a conflict in medical evidence had been created between the 

 5 Jaja K. Asaramo, 55 ECAB 200 (2004). 

6 Id.

7 T.P., 58 ECAB 524 (2007). 
8

opinions of Dr. Chmell, an attending orthopedic surgeon, and Dr. Komanduri, an OWCP referral 

orthopedist, regarding whether appellant had continuing residuals and/or disability due to the 

employment injury, and whether additional conditions of left tibial tendinitis or right venous 

varicosities were caused or aggravated by the June 18, 1990 employment injury. OWCP then 

referred appellant to Dr. Kornblatt, a Board-certified orthopedic surgeon, for an impartial 

medical evaluation to resolve the conflict. 

In a December 3, 2014 report, Dr. Kornblatt noted his review of the SOAF and medical 

record and provided findings on examination. He described the history of injury, appellant’s 

complaint of right ankle pain, and physical findings. Dr. Kornblatt advised that appellant had 

pes planovalgus bilaterally and well-maintained ankle, hindfoot, midfoot, and forefoot range of 

motion. He noted that appellant had excellent strength with regard to the posterior tibial tendon 

bilaterally. While Dr. Kornblatt found the diagnoses of mild left posterior tibial tendinitis and 

right venous varicosity established, he opined that there was no evidence that the June 18, 1990 

employment injury resulted in these conditions at present, noting that appellant’s pes 

planovalgus predisposed her to tibial tendinitis, and that the 1990 work injury may have resulted 

in a temporary aggravation. He opined that appellant had no work-related disability as a result of 

the 1990 work injury and that any present disability was due to the degenerative process in her 

foot and ankle anatomy and to obesity. Dr. Kornblatt concluded that, as there were no objective 

findings to substantiate ongoing subjective complaints, as such, there was no evidence of 

residuals of the June 18, 1990 work injury, and further treatment for this injury was not needed. 

The Board finds that Dr. Kornblatt provided a comprehensive, well-rationalized opinion 

in which he expressly concluded that any residuals of appellant’s accepted conditions had 

resolved and also explained why the additional conditions of left tibial tendinitis and right 

venous varicosities were not employment related. Dr. Kornblatt’s opinion is entitled to the 

special weight accorded an impartial examiner and constitutes the weight of the medical 

evidence.8

The medical evidence appellant submitted prior to the termination is insufficient to 

overcome the special weight accorded Dr. Kornblatt as an impartial medical specialist. In a 

number of reports, Dr. Chmell essentially reiterated his findings and conclusion that appellant 

continued to be disabled due to the employment injury. The Board has long held that reports 

from a physician who was on one side of a medical conflict that has been resolved by an 

impartial specialist, are generally insufficient to overcome the weight accorded to the report of 

the impartial medical examiner, or to create a new conflict.9

The Board concludes that Dr. Kornblatt’s opinion, that residuals of appellant’s accepted 

conditions had ceased, is entitled to the special weight accorded an impartial medical examiner,10

and the additional reports from Dr. Chmell are insufficient to establish any residuals of the 

 8 See Sharyn D. Bannick, 54 ECAB 537 (2003). 

9 I.J., 59 ECAB 408 (2008). 

10 See supra note 8. 
9

accepted conditions or additional employment-related conditions. OWCP therefore properly 

terminated appellant’s compensation benefits on March 5, 2015. 

LEGAL PRECEDENT -- ISSUE 2 

As OWCP met its burden of proof to terminate appellant’s compensation benefits on 

March 5, 2015, the burden shifted to her to establish any continuing disability causally related to 

the accepted conditions.11 Causal relationship is a medical issue. The opinion of the physician 

must be based on a complete factual and medical background of the claimant, must be one of 

reasonable medical certainty and must be supported by medical rationale explaining the nature of 

the relationship between the diagnosed condition and the specific employment factors identified 

by the claimant.12 

ANALYSIS -- ISSUE 2 

The Board finds that appellant submitted insufficient medical evidence with her 

March 19, 2015 reconsideration request to establish continuing disability after March 5, 2015 

due to the June 18, 1990 employment injury. 

As discussed, Dr. Kornblatt provided a comprehensive report in which he outlined 

findings and provided a rationalized opinion explaining that appellant’s accepted conditions of 

left ankle sprain and right tibial tendinitis had resolved and that she could return to her previous 

letter carrier duties. He also clearly explained that additional conditions were not employment 

related. 

In his February 26, 2015 treatment note submitted on reconsideration, Dr. Chmell merely 

described appellant’s complaints, examination findings, and reiterated his diagnoses. The Board 

finds this report of diminished probative value because Dr. Chmell did not explain how appellant 

continued to be totally disabled after March 5, 2015 due to the June 18, 1990 employment 

injury.13 Dr. Chmell did not explain why this injury caused continuing disabling residuals, and, 

as stated earlier, he had been on one side of the conflict in medical evidence resolved by 

Dr. Kornblatt. His report submitted on reconsideration is therefore entitled to little probative 

value and is insufficient to meet an employee’s burden of proof to establish that she continued to 

have work-related disability due to the accepted conditions.14 

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. 

 11 See Joseph A. Brown, Jr., 55 ECAB 542 (2004). 

12 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994). 

13 Sandra D. Pruitt, 57 ECAB 126 (2005). 

14 S.S., 59 ECAB 315 (2008). 
10

LEGAL PRECEDENT -- ISSUE 3 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on 

application by a claimant.15 Section 10.608(a) of OWCP’s regulations provides that a timely 

request for reconsideration may be granted if OWCP determines that the employee has presented 

evidence and/or argument that meets at least one of the standards described in section 

10.606(b)(3).16 This section provides that the application for reconsideration must be submitted 

in writing and set forth arguments and contain evidence that either: (i) shows that OWCP 

erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal 

argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new 

evidence not previously considered by OWCP.17 Section 10.608(b) provides that when a request 

for reconsideration is timely but fails to meet at least one of these three requirements, OWCP 

will deny the application for reconsideration without reopening the case for a review on the 

merits.18

ANALYSIS -- ISSUE 3 

The Board finds that Dr. Chmell’s assertion in his July 10, 2015 correspondence 

submitted on reconsideration is insufficient to require OWCP to reopen this claim for merit 

review. Dr. Chmell asserted that OWCP erroneously relied on the opinions of Dr. Kornblatt and 

Dr. Komanduri because section 702.411(a) and (b) of OWCP regulations and section 5.200.10 of 

OWCP’s procedures explicitly state that the examining physician could not be apprised of 

opinions, reports, or conclusions of any other physician with regard to the nature of an 

employee’s injury, and both Dr. Kornblatt and Dr. Komanduri had reviewed the evidence of 

record. 

The regulation cited by Dr. Chmell, 20 C.F.R. § 702.411, is in reference to the Longshore 

and Harborworkers’ Compensation Act and is not relevant to FECA.19 Likewise, OWCP 

procedures provision cited, Chapter 5.200.10, is not relevant because it is in regard to benefit 

payments and does not discuss requirements for a physical examination.20 

As described above, an application for reconsideration before OWCP must be submitted 

in writing and set forth arguments and contain evidence that either shows that OWCP 

erroneously applied or interpreted a specific point of law, advances a relevant legal argument not 

previously considered by OWCP, or constitutes relevant and pertinent new evidence not 

 15 5 U.S.C. § 8128(a). 

16 20 C.F.R. § 10.608(a). 

17 Id. at § 10.606(b)(3). 

18 Id. at § 10.608(b). 

19 Id. at § 702.411. 

20 Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Overviews by BPS, Chapter 5.200.10. 

(April 2005). 
11

previously considered by OWCP.21 Section 10.608(b) provides that when a request for 

reconsideration is timely but fails to meet at least one of these three requirements, OWCP will 

deny the application for reconsideration without reopening the case for a review on the merits.22 

Thus, Dr. Chmell’s assertion is insufficient to show that OWCP erroneously applied or 

interpreted a specific point of law, or advanced a relevant legal argument not previously 

considered by OWCP. As Dr. Chmell’s argument does not have a basis in law, appellant was not 

entitled to a review of the merits of her claim based on the first and second above-noted 

requirements under section 10.606(b)(3).23

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

merely submitted the correspondence from Dr. Chmell, discussed above, with her July 21, 2015 

reconsideration request. OWCP properly denied her reconsideration request as it was not 

pertinent or relevant new evidence not previously considered by OWCP. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s 

compensation benefits on March 5, 2015 because she had no residuals of the accepted 

conditions, that she did not establish any continuing employment-related disability or condition 

after that date causally related to the June 18, 1990 employment injury, and that OWCP properly 

refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to 

5 U.S.C. § 8128(a). 

 21 20 C.F.R. § 10.606(b)(3). 

22 Id. at § 10.608(b). 

23 Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008). 
12

ORDER 

IT IS HEREBY ORDERED THAT the August 20 and June 16, 2015 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: April 1, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board