United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, WASHINGTON 

TOWNSHIP POST OFFICE, Dayton, OH, 

Employer

__________________________________________

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Docket No. 18-0353

Issued: February 18, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 2, 20171appellant filed a timely appeal from a June 9, 2017 merit decision 

and a November 27, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from June 9, 2017, the date of OWCP’s last merit decision, was 

December 6, 2017. Since using December 11, 2017, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is December 2, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the November 27, 2017 decision, OWCP received additional evidence. 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 

evidence for the first time on appeal. Id. 
2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish that the 

acceptance of his claim should be expanded to include additional lumbar spine conditions as 

causally related to the accepted August 2, 2011 employment injury; (2) whether OWCP abused its 

discretion by denying appellant authorization for an April 10, 2014 lumbar spine surgery; and 

(3) whether OWCP properly denied appellant’s request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On August 2, 2011 appellant, then a 48-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that he injured his left knee and left ankle on that date when he moved 

quickly to avoid being bitten by a dog, causing his knee to pop when he shifted his weight and was 

hit by the dog, while in the performance of duty. Following his initial medical treatment, on 

September 20, 2011, OWCP accepted his claim for left knee and leg sprain, left ankle sprain, and 

sprain of left ankle other sites specified. It paid appellant wage-loss compensation on the 

supplemental rolls commencing September 24, 2011.

In a report dated October 24, 2011, Dr. Kevin J. Paley, a Board-certified orthopedic 

surgeon, noted that appellant was injured when a dog physically struck his left knee causing a 

twisting injury followed by a fall into a brick wall striking his knee a second time. He noted 

appellant’s claim had been accepted for left ankle and knee sprains, but should also be accepted 

for the additional conditions of chondromalacia of the left knee and left ankle patellar 

tendinopathy. Dr. Paley reviewed a magnetic resonance imaging (MRI) scan and found that 

appellant also has a medial meniscus tear based on clinical criteria. He indicated that appellant 

was incapable of returning to work and had been refused work by the employing establishment 

due to his use of crutches.

OWCP referred appellant to Dr. Rudolf A. Hofmann, a Board-certified orthopedic 

surgeon, for a second opinion evaluation to determine the nature and extent of appellant’s accepted 

employment-related conditions. In his November 17, 2011 report, Dr. Hofmann indicated that his 

objective residuals were mild left medial knee joint instability with tenderness along the medial 

joint space and clinical findings consistent with a tear of the posterior medial meniscus and a 

tender, painful nodule in the mid-portion of the left Achilles tendon with MRI scan findings of 

tendinosis (tendinitis) of the left Achilles tendon. He found no evidence of a work-related left 

ankle sprain. Dr. Hofmann diagnosed chondromalacia of the left patella based on his review of a 

September 9, 2011 MRI scan and noted that a physical examination in regards to possible 

chondromalacia of the left knee was not possible that day due to inability of appellant to fully 

extend his left knee. He further diagnosed patellar tendinitis/tendinosis supported by the 

September 9, 2011 MRI scan. Dr. Hofmann opined that appellant’s left knee chondromalacia of 

the patella and the left knee patellar tendinitis conditions were causally related to his August 2, 

2011 employment injury. He explained that the direct blow against the anterior aspect of the left 

knee was consistent with damage to the patellar articular cartilage and patellar ligament. 

Dr. Hofmann further opined that appellant’s work-related conditions necessitated a left knee 

arthroscopic surgery.

By decision dated January 24, 2012, OWCP expanded the acceptance of appellant’s claim 

to include left Achilles tendinitis, left chondromalacia patellae, and left patellar tendinitis.
3

Appellant underwent authorized left knee surgery on February 15, 2012. 

In reports dated April 20, June 27, and July 12, 2012, Dr. Brandon W. Bishop, a podiatrist, 

diagnosed left tarsal syndrome and left Achilles tendinitis with associated left equinus deformity 

and opined that appellant had exhausted conservative care and, therefore, recommended a 

gastrocnemius recession of the left side, left Achilles tendon debridement, possible retro-calcaneal 

exostectomy, as well as left tarsal tunnel release. He opined that appellant’s tarsal tunnel condition 

was “connected to his original injury on [August 2, 2011] where he was attacked by [a] dog and 

was noted that his foot was everted at the time and his ankle twisted inwards, and as he eternally 

rotated his foot and his knee, his knee buckled medially.”

On August 30, 2012 Dr. Nabil F. Angley, a Board-certified orthopedic surgeon serving as 

a district medical adviser (DMA), indicated that Dr. Bishop’s recommendation for surgery “may 

be unnecessary” and recommended referring appellant to a Board-certified orthopedic surgeon 

who specializes in foot and ankle surgery for an opinion and recommendation on the necessity of 

surgery.

OWCP subsequently referred appellant to Dr. Edward Gregory Fisher, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine whether appellant required 

surgery for his accepted conditions. In his October 26, 2012 report, Dr. Fisher found that the left 

knee sprain/strain, left ankle sprain/strain, and the patella tendinitis had all healed with no objective 

findings or residuals. He further found that the Achilles tendinitis and left knee chondromalacia 

of the patella remained active and present based on findings of patellofemoral crepitation, 

tenderness/discomfort over the patella on palpation and on flexion/ extension of the left knee, and 

tenderness on palpation over the medial side of the distal end of the Achilles tendon. Dr. Fisher

opined that appellant’s conditions were causally related to the accepted employment injury. He 

further opined that, while appellant had tarsal tunnel syndrome, there was no equinis deformity of 

the left ankle. Dr. Fisher did not detect bursitis over the left side of the calcaneus upon physical 

examination and there was no evidence, by way of examination or MRI scan, of an exostosis over 

the calcaneus. He, therefore, concluded that a tarsal tunnel release on the left side was the only 

appropriate surgical procedure for appellant and the remaining requested surgical procedures were 

not medically necessary and/or appropriate. 

By decision dated March 18, 2013, OWCP expanded the acceptance of appellant’s claim 

to include the additional condition of tear of the medial meniscus of the left knee and left tarsal

tunnel syndrome.

Appellant underwent an OWCP-authorized left foot Achilles tendon repair and tarsal 

tunnel release surgery on April 29, 2013.

A functional capacity evaluation (FCE) dated January 29, 2014 demonstrated that appellant 

was capable of the functional capacities that were consistent with the medium physical demands 

category. Appellant was unable to tolerate the walking route demands of his previous position, 

but was able to tolerate a customer service position. 

In a January 31, 2014 report, Dr. Paley noted that appellant had a herniated nucleus 

pulposus at C5-6, confirmed by MRI scan, and a positive electromyography (EMG) of the upper 

extremity which showed cervical radiculopathy at the same level. 
4

On April 10, 2014 appellant underwent an anterior lumbar interbody fusion at L5-S1, 

which was performed by Dr. Nicolas Grisoni, a Board-certified orthopedic surgeon. 

In a January 8, 2016 report, Dr. Grisoni indicated that appellant claimed that he had an 

L5-S1 disc protrusion and herniation caused by a work reconditioning program and that the disc 

herniation had been treated surgically in April 2014. He opined that the work reconditioning 

program aggravated a mild, essentially asymptomatic issue with appellant’s low back. Dr. Grisoni

explained that a singular act of bending over to pick up a cell phone cord on February 7, 2014 was 

not the sole cause of the disc herniation. He indicated that, based on his progressive, severe pain 

during the work reconditioning program that he most likely ruptured his disc at some point during 

the course of the work reconditioning program, and the February 7, 2014 nonwork-related incident 

simply caused the disc herniation to become more symptomatic as the disc protruded further and 

caused more neurocompressive pathology. 

In reports dated November 30, 2015 through April 11, 2016, Dr. Paley opined that 

appellant continued to complain of pain and swelling in the left knee and needed surgical 

intervention in the form of a repeat arthroscopy of the knee. 

In reports dated May 4 and 9, June 3 and 29, and July 25 and 28, 2016, Dr. Paley provided 

progress notes on appellant’s left lower extremity conditions and diagnosed complex tear of medial 

meniscus, right knee. He further indicated that appellant’s complaints of lumbar pain were related 

to a vocational rehabilitation accident he had while recovering from a prior knee surgery.

On August 16, 2016 appellant underwent an authorized left knee surgery performed by

Dr. Paley. 

In a September 9, 2016 report, Dr. Paley indicated that appellant presented with complaints 

of pain in the cervical region and diagnosed sprain of ligaments of the cervical spine. He indicated 

that appellant had previously sustained an injury at work and his claim had been accepted by 

OWCP for cervical disc displacement.

4

On October 5, 2016 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving 

as a DMA, reviewed the medical evidence of record and found that appellant had extensive 

preexisting degenerative disease at L5-S1 and MRl scan reports showed gradual progressive 

bulging and ultimately a herniation of the L5-S1 disc space. He opined that appellant’s spinal 

condition was a progressive protrusion not related to the August 2, 2011 employment injury. The 

DMA further indicated that the injury was not consequential to his discogenic abnormality because 

MRl scan studies of the lumbar spine dated January 5, 2012 revealed mildly degenerative disease 

with slight retrolisthesis, but no compressive disc herniation. He noted that there was dehydration 

at L5-S1 which indicated long-standing degenerative disease with desiccation as demonstrated. 

The DMA also noted that there was no compressive disc herniation or stenosis from L2 through 

S1 and therefore, no evidence of disc herniation at L5-S1. He concluded that appellant’s April 10, 

2014 surgery had been an “elective reconstructive procedure fusion” of L5-S1 and was not 

“reasonable and necessary” due to his accepted August 2, 2011 employment injury. The DMA

further concluded that bulging discs at L2-3, L3-4, and L4-5 with stenosis and retrolisthesis at 

 

4 Appellant has an additional claim for a December 17, 2008 injury that has been accepted for numerous conditions, 

including cervical spine disc displacement, under OWCP File No. xxxxxx623. Appellant’s claims have not been 

administratively combined.
5

L3-4 and L4-5 with nerve root stenosis should not be accepted conditions in this claim. He opined, 

however, that appellant had sustained an additional injury superimposed upon his left Achilles 

tendinitis and recommended that the claim be expanded to include the additional condition of 

aggravation of left Achilles tendinitis and left ankle surgery.

In an addendum report dated January 17, 2017, the DMA explained that the work 

conditioning/hardening program appellant underwent in late 2013/early 2014 for his left foot and 

ankle conditions was “not competent to produce or ultimately contribute to” his lumbar spine 

conditions and/or the April 10, 2014 lumbar spine surgery. He opined that none of appellant’s 

lumbar conditions represented an acute injury, as no single event or multiple events of this type of 

word hardening could have caused his multiple level disc abnormalities. The DMA concluded 

that appellant’s lumbar conditions all represented chronic long-standing, preexisting conditions 

had not been caused by the work-hardening program. He also concluded that the medical record 

also failed to establish that appellant’s lumbar conditions were aggravated by the work-hardening 

program and concluded that they were preexisting and degenerative in nature. 

On March 1, 2017 OWCP found a conflict in the medical opinion evidence and referred 

appellant to Dr. Theodore Toan Le, a Board-certified orthopedic surgeon serving as an impartial 

medical examiner (IME), to resolve the conflict as to whether there was a causal relationship 

between the claimed lumbar spine conditions and the work-hardening program and also the 

necessity and appropriateness of the April 10, 2014 lumbar spine surgery. 

In a March 29, 2017 report, the IME, Dr. Le, submitted his findings upon examination 

following a review of a statement of accepted facts (SOAF) and the medical evidence of record. 

He opined that appellant’s lumbar spine conditions were not related to the accepted August 2, 2011 

employment injury. The IME reported that he had 42 visits for his work-hardening program and 

there had been only four complaints during those visits of stiffness or soreness to his lumbar spine. 

The duration of the visits were noted to be anywhere from three to four hours and appellant had 

been able to tolerate the program well. The IME reviewed the diagnostic testing of record and 

opined that he had a preexistent condition at the L5-S1 level and that over the course of two-plus 

years, he developed worsening of the condition and an acute episode of increased pain in 

February 2014. He concluded that the work-hardening program, over a period of two-and-a-half 

months, was insufficient to have contributed to the disc herniation. The IME concurred with

Dr. Berman that appellant’s progressive right L5-S1 para-median disc protrusion was progressive 

in nature, not acute in terms of herniation.

On March 29, 2017 appellant underwent an authorized left Achilles tendon repair surgery, 

which was performed by Dr. James P. Martens, a Board-certified orthopedic surgeon. 

By decision dated June 9, 2017, OWCP denied the expansion of the acceptance of 

appellant’s claim to include additional lumbar spine conditions finding that the medical evidence 

of record failed to establish that his diagnosed lumbar conditions were causally related to the 

accepted August 2, 2011 employment injury. It further denied authorization for the April 10, 2014 

lumbar spine surgery.

On July 28, 2017 appellant requested reconsideration. In support of his request, he 

submitted progress reports regarding his bilateral knee conditions dated June 19, July 28, 

August 28, and October 2 and 23, 2017, and duty status reports (Form CA-17) regarding his 
6

accepted left knee/ankle conditions dated June 29, July 28, August 28, October 23, and 

November 17, 2017 from Dr. Paley. 

In reports dated July 17 and September 25, 2017, Dr. Martens prescribed physical therapy 

for appellant’s status post left Achilles tendon debridement and provided progress notes relating 

to his postsurgical condition.

In a July 19, 2017 report, a physical therapist indicated that appellant had attended a workhardening program and confirmed that appellant had remarked about “some on-going lower back 

irritation and pain as well as some right leg radiating pain as well.” The therapist noted that these 

complaints were “overshadowed by the left ankle and knee issues.”

Appellant resubmitted MRI scan reports of the lumbar spine dated January 5, 2012, 

February 17 and July 7, 2014, and February 16, 2015.

By decision dated November 27, 2017, OWCP denied appellant’s request for 

reconsideration.

LEGAL PRECEDENT -- ISSUE 1

When an employee claims that a condition not accepted or approved by OWCP was due to

an employment injury, he or she bears the burden of proof to establish that the condition is causally

related to the employment injury.5

Causal relationship is a medical question that requires rationalized medical opinion

evidence to resolve the issue.

6

 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and an accepted injury must be based on a complete factual and 

medical background.7 Additionally, the physician’s opinion must be expressed in terms of a 

reasonable degree of medical certainty and must be supported by medical rationale which, explains 

the nature of the relationship between the diagnosed condition and the accepted employment 

injury.8

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish that the 

acceptance of his claim should be expanded to include additional lumbar spine conditions as 

causally related to the accepted August 2, 2011 employment injury.

OWCP found a conflict in the medical opinion evidence between appellant’s treating 

physicians, Drs. Grisoni and Paley, who opined that his L5-S1 spinal condition was caused and/or 

aggravated by a work-hardening program for his accepted left lower extremity conditions, and its 

 

5 M.B., Docket No. 19-0485 (issued August 22, 2019); R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K.

Asaramo, 55 ECAB 200 (2004).

6 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

7 M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Id.
7

DMA, Dr. Berman, who opined that appellant’s lumbar conditions were chronic long-standing, 

preexisting conditions and could not have been caused by the work-hardening program. It properly 

referred appellant to Dr. Le, serving as the IME, to resolve the conflict, pursuant to 5 U.S.C. 

§ 8123(a).

In his March 29, 2017 report, the IME found that appellant’s lumbar spine conditions were 

not causally related to the accepted August 2, 2011 employment injury. He reported that appellant 

had 42 visits for his work conditioning program, but on only four occasions had he complained of 

stiffness or soreness to his lumbar spine. The IME reviewed the diagnostic testing of record and 

opined that he had a preexistent condition at the L5-S1 level which, over the course of two-plus 

years, had progressed and resulted in an acute episode of increased pain in February 2014. He 

concluded that the work-conditioning program had not contributed to the disc herniation, 

concurring with Dr. Berman that appellant’s progressive right L5-S1 para-median disc protrusion 

was progressive in nature, not acute in terms of herniation. 

The Board finds that Dr. Le’s impartial medical examination report represents the special 

weight of the medical evidence as he had full knowledge of the relevant facts and evaluated the 

course of appellant’s condition. The IME is a specialist in the appropriate field, his opinion is 

based on a proper factual and medical history, and his report contained a detailed summary of this 

history. He addressed the medical records to make his own examination findings to reach a 

reasoned conclusion regarding appellant’s employment-related conditions.9 Following physical 

examination, the IME found no basis on which to attribute causal relationship between the 

additional spinal conditions and the accepted August 2, 2011 employment injury. His opinion, as 

set forth in his March 29, 2017 report, is found to be probative evidence and reliable. The Board 

therefore finds that the IME’s opinion constitutes the special weight of the medical evidence.

As Drs. Grisoni and Paley were on one side of the conflict, their subsequent reports are 

insufficient to create a new conflict in medical opinion or to overcome the special weight properly 

accorded to the IME.

10

 Therefore, OWCP properly determined that these additional reports were 

insufficient to expand the acceptance of appellant’s claim to include additional lumbar spine 

conditions as causally related to the accepted August 2, 2011 employment injury.

The diagnostic testing reports and the FCE lack probative value on this issue of causal 

relationship and are thus insufficient to establish the claim as such evidence does not specifically 

address whether appellant’s diagnosed conditions are causally related to the August 2, 2011 work 

injury.11 

 

9 K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Michael S. 

Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383, 388 (1994) (the opportunity for and thoroughness of 

examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care 

of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which 

determine the weight to be given to each individual report).

10 Id.

11 J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).
8

The Board therefore finds that appellant has not submitted sufficient rationalized medical 

evidence to establish that the acceptance of appellant’s claim should be expanded to include 

additional lumbar spine conditions.

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.

LEGAL PRECEDENT -- ISSUE 2

Section 8103 of FECA provides that the United States shall furnish to an employee who is 

injured while in the performance of duty, the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree, or the period of disability, or aid in lessening the amount of the monthly 

compensation.12 In interpreting this section of FECA, the Board has recognized that OWCP has 

broad discretion in approving services provided under FECA.13 

OWCP has the general objective of ensuring that an employee recovers from his or her 

injury to the fullest extent possible in the shortest amount of time. It therefore has broad 

administrative discretion in choosing means to achieve this goal. The only limitation on OWCP’s 

authority is that of reasonableness.14 Abuse of discretion is generally shown through proof of 

manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to 

both logic and probable deductions from established facts.15 It is not enough to merely show that 

the evidence could be construed so as to produce a contrary factual conclusion.16

ANALYSIS -- ISSUE 2

The Board finds that OWCP has not abused its discretion by denying appellant 

authorization for an April 10, 2014 lumbar spine surgery. 

OWCP found a conflict in the medical opinion evidence relating to whether appellant’s 

claim should be expanded to include lumbar spine conditions. Following an impartial medical 

examination and March 29, 2017 report by the IME Dr. Le, it properly determined that the 

acceptance of appellant’s claim should not be expanded to include lumbar conditions causally 

related to his accepted employment injury and that lumbar spine surgery was not necessary or 

appropriate to treat his accepted work-related conditions. Thus, the Board finds that OWCP has 

not abused its discretion by denying appellant authorization for the April 10, 2014 lumbar spine 

surgery.

 

12 5 U.S.C. § 8103. 

13 See J.B., Docket No. 11-1301 (issued March 22, 2012). 

14 Id. 

15 Id.

16 See Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990). 
9

The Board further finds that the January 29, 2014 FCE and subsequent diagnostic reports 

of record do not constitute competent medical evidence because they do not provide an opinion 

from a physician regarding appellant’s need for the April 10, 2014 lumbar spine surgery.

17

 As 

such, appellant did not meet his burden of proof with these submissions.

LEGAL PRECEDENT -- ISSUE 3

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.18 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.19 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.20 

A timely request for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

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

considered by OWCP.21 When a timely request for reconsideration does not meet at least one of 

the above-noted requirements, OWCP will deny the request for reconsideration without reopening

the case for a review on the merits.22

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

Appellant’s July 28, 2017 request for reconsideration neither alleged nor demonstrated that 

OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board finds 

that he did not advance a relevant legal argument not previously considered by OWCP. 

Consequently, appellant is not entitled to further review of the merits of his claim based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

In support of his reconsideration request, appellant submitted reports dated June 19 through 

November 17, 2017 from Dr. Paley and July 17 and September 25, 2017 from Dr. Martens. He 

also resubmitted MRI scan reports of the lumbar spine dated January 5, 2012 to February 16, 2015. 

 

17 Supra note 16.

18 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

19 20 C.F.R. § 10.607.

20 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

21 20 C.F.R. § 10.606(b)(3).

22 Id. at § 10.608(a), (b).
10

The Board finds that submission of this evidence did not require reopening of appellant’s case for 

a merit review. As OWCP denied his claim based on the lack of supportive medical evidence to 

overcome the special weight of the report of the IME Dr. Le, and because these reports repeat 

evidence already in the case record, they are cumulative and do not constitute relevant and 

pertinent new evidence. Therefore, the Board finds that they are insufficient to require OWCP to 

reopen the claim for consideration of the merits.

Appellant also submitted a July 19, 2017 report from a physical therapist who indicated 

that she complained of some on-going lower back irritation and pain as well as some right leg 

radiating pain. The Board finds that submission of this report did not require reopening appellant’s 

case for merit review because it has no probative value on the underlying issues on reconsideration. 

This report does not constitute competent medical evidence because a physical therapist is not

considered a “physician” as defined under FECA.23 Therefore, this document is not relevant and 

is insufficient to require a merit review. 

As appellant has not provided relevant and pertinent new evidence, he is not entitled to a 

review of the merits based on the third requirement under 20 C.F.R. § 10.606(b)(3).

The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish that the 

acceptance of his claim should be expanded to include additional lumbar spine conditions as 

causally related to the accepted August 2, 2011 employment injury. The Board further finds that 

OWCP has not abused its discretion by denying appellant authorization for an April 10, 2014

lumbar spine surgery. The Board also finds that OWCP properly denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

 

23 M.G., Docket No. 19-1199 (issued December 19, 2019); L.T., Docket No. 19-0145 (issued June 3, 2019); T.H., 

Docket No. 18-1736 (issued March 13, 2019); see David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals 

such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under 

FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by state law). See also M.O., Docket No. 18-0229 (issued September 23, 2019) (physical therapists are not considered 

physicians under FECA).
11

ORDER

IT IS HEREBY ORDERED THAT the November 27 and June 9, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: February 18, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board