United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Augusta, GA, Employer 

___________________________________________

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0504 

Issued: June 21, 2016 

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On January 5, 2015 appellant, through counsel, filed a timely appeal of a September 24, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 As more 

than 180 days elapsed from April 1, 2013, the date of the most recent OWCP merit decision, to 

the filing of the current appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of 

appellant’s claim. 

 1

 Appellant requested oral argument before the Board. In an October 8, 2015 order, the Board exercised its 

discretion and denied her request, noting that her arguments on appeal could be adequately addressed in a Board 

decision based on a review of the case record as submitted. Order Denying Request for Oral Argument, Docket No. 

15-0504 (issued October 8, 2015). 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of her claim under 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On January 7, 1987 appellant, then a 38-year-old nursing assistant, filed a traumatic 

injury claim alleging that on that date a patient struck her in the left side of her chest in the 

performance of duty. She did not initially stop work. OWCP accepted the claim for lumbar 

sprain and bulging discs at L3-4 and L4-5. Appellant was subsequently placed on the periodic 

rolls. 

OWCP continued to develop the claim. 

On April 15, 2011 OWCP determined there was a conflict in the medical evidence 

between Dr. Leslie Pollard, Jr., the treating physician Board-certified in family medicine, who 

found appellant totally disabled, and the second opinion physician, Dr. James Bethea, a Boardcertified orthopedic surgeon, who found that appellant was not capable of working her date-ofinjury job but that she could work another type job with restrictions. OWCP referred appellant 

to Dr. Thomas R. Cadier, a Board-certified orthopedic surgeon, for an impartial medical opinion 

as to appellant’s work capacity. 

In his June 27, 2011 report, Dr. Cadier noted appellant’s history of injury and findings on 

examination. He determined that she could not perform her date-of-injury job as a nursing 

assistant for multiple reasons. Dr. Cadier noted that appellant had been out of the work force for 

greater than 20 years and had multiple comorbidities along with her on-going complaints of 

persistent back pain. He advised that she was capable of working in another type of job with 

restrictions. Dr. Cadier noted an absence of significant objective finding and opined that the 

accepted injuries should have resolved. He advised that appellant still complained of pain, but 

that it was impossible to quantify. Dr. Cadier opined that the work injury had resolved, but the 

ongoing pain had not resolved. He explained that appellant could work in a sedentary-type job.3

 

On August 5, 2011 OWCP requested clarification from Dr. Cadier with regard to whether 

her accepted conditions of lumbar sprain and bulging discs at L3-4 and L4-5 had completely 

resolved in relation to the January 7, 1987 work-related incident. 

In an August 8, 2011 response, Dr. Cadier opined that bulging discs were present but that 

the work-related injury had resolved. 

In a letter dated September 8, 2011, OWCP requested clarification with regard to bulging 

discs and whether they were related to the work-related incident and whether or not they had 

 3

 Dr. Cadier also noted that the most practical way to resolve her case would be to accept the fact that she was 

near retirement and met the Medicare standard of disability, i.e., she could reasonably be placed on social security 

disability with the above diagnoses and, therefore, terminate her workers’ compensation disability status, provided 

she was given extensive job training. 
3

resolved. It also requested whether there were any work restrictions related to the accepted 

condition of bulging discs. 

In a September 26, 2011 response, Dr. Cadier opined that bulging discs were a product of 

normal degenerative change over time and there were no objective findings in appellant’s case to 

suggest they were related to the accepted work incident. He explained that he did not expect 

them to “resolve” since they were simply a radiographic finding. Dr. Cadier indicated that he 

would not place any work restrictions on appellant simply due to the bulging discs which were 

discovered following the work incident, as they appeared over months and years due to slow disc 

degeneration. He advised that any work restrictions would be due to her multiple preexisting 

medical problems and not due to the presence of the bulging discs. 

On October 21, 2011 OWCP proposed to terminate appellant’s wage-loss and medical 

benefits. Appellant submitted two medical reports dated November 3 and 8, 2011 from 

Dr. Alex D. Collins, a Board-certified orthopedic surgeon and an osteopath. Dr. Collins found 

that appellant’s pain had been constant since her January 7, 1987 incident. 

On December 1, 2011 OWCP finalized the termination, effective that date, finding that 

the medical evidence of record failed to support continued residuals related to the work injury of 

January 7, 1987. It relied upon the report of the impartial medical examiner, Dr. Cadier, a 

Board-certified orthopedic surgeon. OWCP explained that there were no objective findings to 

support continuing disability due to the accepted bulging discs. 

On December 12, 2011 counsel for appellant requested an oral hearing, which was held 

on March 12, 2012. During the hearing, he argued that appellant remained disabled and 

questioned the validity of the impartial medical examiner. Counsel indicated that Dr. Cadier was 

over 200 miles away and that he did not examine appellant or take x-rays or CT scans. He also 

discussed Dr. Cadier’s medical report, and found it was the only contradictory report. In a 

separate letter, also dated December 12, 2011, counsel argued that there never had been a 

conflict in the medical opinion and that OWCP failed to follow its procedures to give proper 

notice. 

By decision dated May 14, 2012, the OWCP hearing representative affirmed the 

December 1, 2011 decision. He found the report from Dr. Cadier was sufficient to carry the 

weight of the medical evidence and affirmed the termination. 

In a letter dated June 21, 2012, counsel for appellant requested reconsideration of the 

May 14, 2012 decision and enclosed a report from Dr. Collins dated June 1, 2012. Dr. Collins 

opined that appellant was permanently disabled, unable to work, and was currently receiving 

injections for her conditions. 

On August 30, 2012 OWCP denied modification of the prior decision, finding that 

Dr. Collins’ opinion was based on an inaccurate history and was insufficient to overcome the 

weight of Dr. Cadier. 

On February 13, 2013 appellant requested reconsideration. In a December 11, 2012 

statement, she stated that she was injured at work in January 1987 and received workers’ 

compensation from 1987 to November 2011. Appellant advised that she continued to receive 
4

treatment and her condition had not resolved. She argued that all of her physicians found that 

she was unable to work. Appellant also acknowledged that the impartial medical examiner, 

Dr. Cadier, thought her condition was a product of normal degenerative change, but she believed 

Dr. Cadier was searching for a reason to terminate her benefits. She also argued that 

Dr. Cadier’s opinion should not be given special weight as he did not perform any tests or 

provide treatment. Appellant complained that she had to travel three hours away to see 

Dr. Cadier and noted his contradictory reasoning when he found her not disabled, but could be 

on social security disability. 

Appellant provided an October 17, 2012 report from her treating physician, Dr. Collins, 

who advised that her low back pain began with her on-the-job injury on January 7, 1987. 

Dr. Collins explained that this led to spondylosis of the back, which in turn led to chronic 

changes, which led to the current diagnosis of bulging discs. He opined that appellant was 

unable to work due to these bulging discs and her back pain which limited her ability to walk and 

get up and down from a chair. Dr. Collins found appellant permanently disabled. 

By decision dated April 1, 2013, OWCP denied modification of the prior decision as 

Dr. Collins had simply restated his opinion which did not overcome the weight of Dr. Cadier. 

By letter dated March 31, 2014, appellant’s counsel requested reconsideration. He 

argued that Dr. Cadier, the impartial medical examiner, had not provided a conclusive opinion to 

resolve the conflict. Counsel also argued that leading questions had been presented to 

Dr. Cadier, who then changed his original position. He further contended that Dr. Cadier’s 

report was not based upon a proper statement of accepted facts. Counsel argued that the 

statement of accepted facts was incomplete and did not contain information vital to the claim. 

He specifically noted the medical history and argued that Dr. Cadier did not account for the fact 

that appellant was able to perform her full work duties, unrestricted, before her work injury. 

Additionally, he argued the report was not rationalized and did not explain how the accepted 

conditions had resolved and became age related. Counsel noted that Dr. Cadier did not refer to 

any of the treating physician’s reports or notes and omitted reference to the medical 

documentation available from 1987 to the present. He noted that Dr. Cadier did not properly 

assess the preinjury base line, or compare that with the present status of her injury, which 

effectively prevented the physician from assessing whether an aggravation of a preexisting 

condition occurred or contributed to the development of any preexisting condition. Furthermore, 

counsel argued that appellant had developed additional conditions resulting from the work 

incident which were not addressed. Additionally, he argued that the medications that had been 

prescribed for appellant had documented side effects, which should be compensable. Counsel 

noted that in 1992 appellant attempted to return to work, but was unable to do so and she was 

found totally and completely disabled by OWCP. He alleged that Dr. Cadier did not 

acknowledge these reemployment efforts. Counsel argued that OWCP had not met its burden of 

proof to terminate her compensation and that she remained disabled. He also requested that the 

claim be expanded and that appellant be referred to a new impartial medical examiner. Counsel 

also advised that he was submitting new medical evidence from Dr. Justin Bundy, a Boardcertified orthopedic surgeon. 

In a report dated January 14, 2014, Dr. Bundy noted appellant’s history of injury and 

treatment. He advised that she presented with a history of sharp, shooting, and stabbing pain in 
5

the lumbar region that occurred constantly. Dr. Bundy examined appellant and diagnosed 

lumbar degenerative disc disease. He recommended additional treatment, which appellant 

declined. Dr. Bundy opined that she had never recovered from her injury. He explained that 

appellant’s condition had progressed “likely due to age and degenerative changes.” 

In a decision dated September 24, 2014, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant review of its prior 

decision. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provides that a claimant may obtain review of the merits if the written 

application for reconsideration, including all supporting documents, sets forth arguments and 

contains evidence which: 

“(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.”5

 Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.6

ANALYSIS 

The Board finds that appellant has submitted new evidence requiring further merit 

review. 

Appellant through counsel disagreed with the April 1, 2013, decision, affirming the 

termination of her compensation and medical benefits, effective December 1, 2011, and timely 

requested reconsideration on March 31, 2014. OWCP denied appellant’s timely application for 

reconsideration in a September 24, 2014 decision finding that no new evidence was offered 

warranting further merit review. OWCP found that the evidence submitted was repetitious and 

immaterial. It also advised that counsel’s arguments on reconsideration were similar to those 

previously considered. 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608(b). 
6

The Board notes that counsel submitted a relevant and pertinent new report from 

Dr. Bundy dated January 14, 2014. This report is relevant as the physician supports that 

appellant never recovered from her work injury. The Board also finds that counsel presented 

new argument in support of the requested reconsideration. Because appellant submitted new and 

relevant argument and evidence in support of her March 31, 2014 reconsideration request, the 

Board finds that OWCP improperly denied further merit review of her case. The September 24, 

2014 decision will be set aside and the case remanded for OWCP to review her claim and issue a 

merit decision. 

On appeal, counsel argued that at the very least she should have been given a merit 

review. The Board has remanded the claim for a merit review. 

CONCLUSION 

The Board finds that OWCP improperly refused to reopen appellant’s case for further 

review of the merits of her claim under 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded. 

Issued: June 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board