United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Colorado Springs, CO, Employer

__________________________________________

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Docket No. 19-1380

Issued: February 11, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 10, 2019 appellant filed a timely appeal from a December 10, 2018 merit decision 

and a January 14, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 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 eighty days from December 10, 2018, the date of OWCP’s last merit decision, was 

June 8, 2019. As this fell on a Saturday, the time period for filing her appeal did not expire until the next business 

day, which was Monday, June 10, 2019, rendering the appeal timely filed. See M.H., Docket No. 13-1901 (issued 

January 8, 2014); Debra McDavid, 57 ECAB 149, 150 (2005); Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000); 

Gary J. Martinez, 41 ECAB 427, 427-28 (1990). 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the January 14, 2019 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 

additional evidence for the first time on appeal. Id.
2

ISSUES

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

wage-loss compensation benefits, effective December 9, 2018, as she no longer had disability 

causally related to her accepted left hand contusion, bilateral knee contusions, left wrist and hand 

sprain, tear of the left knee lateral meniscus, and left shoulder impingement syndrome; and 

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her

claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On January 6, 2017 appellant, then a 59-year-old holiday clerk assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on January 4, 2017 she sustained a left wrist injury when 

she tripped on a plastic board while in the performance of duty. OWCP accepted the claim for 

contusion of left hand, contusion of right knee, contusion of left knee, sprain of left wrist, tear of 

lateral meniscus of left knee, and impingement syndrome of left shoulder. Appellant stopped work 

on January 4, 2017 and received wage-loss compensation on the supplemental rolls as of 

January 21, 2017. OWCP paid her wage-loss compensation on the periodic rolls beginning 

March 4, 2018.4 

On August 3, 2017 appellant underwent an OWCP-approved left knee arthroscopy. 

Follow-up medical reports dated December 6, 2017 through July 16, 2018 were submitted 

from Dr. Jay Neubauer, Board-certified in preventative medicine. In his December 6, 2017 report,

Dr. Neubauer diagnosed contusion of left hand, contusion of right knee, contusion of left knee, 

sprain of other part of left wrist and hand, sprain of left rotator cuff capsule, nondisplaced fracture 

of middle third navicular bone of left wrist with routine healing, other spontaneous disruption of 

anterior cruciate ligament of left knee, other tear of lateral meniscus left knee current injury, and 

trigger finger of left ring finger. He reported that the cause of appellant’s problems were related 

to her work activities. Dr. Neubauer opined that she could perform modified duty, lifting up to 

five pounds with the left arm, and sedentary general work restrictions. On December 13, 2017 he

completed a work capacity evaluation form (OWCP-5c) noting appellant’s restrictions, including 

no grasping/typing/mousing with the left hand, no prolonged standing/walking greater than 15 

minutes without rest, no lifting/carrying/pushing/pulling greater than two pounds. In progress 

notes dated January 4, 2018, Dr. Neubauer reiterated the diagnosis and work restrictions he 

provided in his December 6, 2017 report. In a January 7, 2018 Form OWCP-5c, he indicated that 

appellant should not perform repetitive grasping, kneeling, crawling, squatting; no prolonged 

standing/walking, and no lifting/carrying over five pounds with the left hand. Appellant was also 

seen on January 19, February 19, March 19, and April 16, 2018. In these reports, Dr. Neubauer 

related that her scaphoid fracture had now resolved however she had ongoing shoulder, wrist, and 

hand pain, which was thought to be arthritis. He also noted that appellant had undergone left knee 

surgery on August 2, 2017 and had been recovering slowly following this procedure. 

Dr. Neubauer again noted her work restrictions. In a narrative report dated May 15, 2018, he

related appellant’s continuing pain complaints. Dr. Neubauer related that surgery was not 

recommended for her left arm complaints and that she was reaching maximum medical 

improvement (MMI) as her arm symptoms were becoming stable. With regard to appellant’s left 

 

4 The record reflects that appellant was terminated from federal employment on January 6, 2017. 
3

knee, he related that he had referred her for a functional capacity evaluation, and that her current 

work restrictions were temporary. Dr. Neubauer completed another Form OWCP-5c on May 16, 

2018 noting that she could not perform typing or grasping with the left hand, or prolonged 

standing/walking for more than 60 minutes at a time/sedentary work only. He repeated these 

restrictions in May 23, 2018 narrative report. In a June 13, 2018 report, Dr. Neubauer related 

appellant’s restrictions as no grasping/typing/mousing with left hand, no lifting/carrying/

pushing/pulling greater than five pounds with the left hand, no prolonged standing or walking 

greater than 60 minutes, without rest, sedentary work only. He repeated these restrictions on July

16, 2018 and noted that “the cause of this problem is related to work activities.” 

On March 1, 2018 OWCP referred appellant, the case file, and a statement of accepted 

facts (SOAF) to Dr. William Ciccone, a Board-certified orthopedic surgeon, for a second opinion 

examination regarding the status of her accepted January 4, 2017 work-related injury. 

In a March 28, 2018 report, Dr. Ciccone recounted appellant’s history of injury and 

medical treatment. He reported that she sustained a minor contusion to the left wrist and right 

knee as a result of the work-related fall which had since resolved, and that any complaints related 

to her current conditions involved her preexisting degenerative conditions. Dr. Ciccone reported 

that appellant’s left wrist condition was related to degenerative changes which were not caused or 

aggravated by the January 4, 2017 employment incident. He explained that, following her minor 

left wrist contusion, radiographs revealed degenerative changes, but no fracture. Furthermore, 

appellant’s wrist condition and symptoms had improved since the employment injury and there 

was no evidence of fracture on any diagnostic studies other than her preexisting degenerative 

conditions. Dr. Ciccone opined that her left wrist condition had resolved and any intermittent pain 

she experienced in the thumb was unrelated to the work injury and caused by her preexisting 

degenerative condition. He further reported that appellant’s magnetic resonance imaging (MRI) 

scan of the left shoulder revealed labral tearing and glenohumeral cartilage loss, which were 

degenerative in nature and unrelated to any work trauma. Dr. Ciccone noted that tendon 

degeneration was called tendinopathy and was caused by the natural degeneration of the tendon, 

not trauma. Furthermore, labral tearing was associated with the degenerative changes in the 

shoulder (glenohumeral) joint while loss of cartilage in the shoulder joint was commonly 

associated with degenerative labral tearing which were unrelated to trauma. Dr. Ciccone noted 

that appellant did not have any pain in the left shoulder following the fall and had no evidence of 

an acute injury on her diagnostic study to establish continuing residuals of a left shoulder injury. 

He further opined that her right knee condition had resolved as her diagnostic studies showed no 

evidence of fracture and her February 22, 2018 examination revealed nearly full range of motion 

and minimal knee pain. Dr. Ciccone concluded that appellant did not sustain a work-related injury 

to the left knee or left shoulder and suffered minor contusions to the left wrist and right knee as a 

result of the fall. However, he indicated that her continued symptoms were related to preexisting 

degenerative changes and not an acute injury. Dr. Ciccone reported that appellant did not require 

any further medical treatment for her work-related conditions and could return to full-duty work 

without restrictions. 

On August 3, 2018 OWCP requested a supplemental report from Dr. Ciccone and asked 

that he provide a medical opinion within the framework of the SOAF. It noted that, while he did 

not agree with some of the accepted conditions in the claim, he should provide an opinion based 

on the conditions which had been established as causally related to the employment injury. 
4

In a supplemental August 13, 2018 medical report, Dr. Ciccone reported that according to 

the SOAF, appellant had minor injuries to multiple joints and that imaging studies revealed 

degenerative changes in the joints. He opined that she was no longer suffering from any residuals 

of the employment injury and that the continued joint pain was related to the preexisting 

degenerative changes and not the work-related injury. Dr. Ciccone again concluded that appellant 

could return to full-duty work without restrictions. He also completed a work restriction evaluation 

(Form OWCP-5c) form in which he indicated that she could return to work without restrictions.

Medical reports dated August 17 and October 23, 2018 were submitted from Dr. Richard 

Meinig, a Board-certified orthopedic surgeon, who diagnosed traumatic arthritis of left knee and 

acute lateral meniscus tear of left knee. In his August 17, 2018 report, Dr. Meinig related that 

appellant was back to hiking and swimming and could continue her activities without restriction 

regarding her left knee. In his October 23, 2018 report, he related that she was exhibiting some 

early signs of lateral knee and patellofemoral osteoarthrosis and had probably reached MMI in 

terms of the arthroscopy for the lateral meniscus tear. Dr. Meinig indicated that appellant had no 

significant functional restrictions. 

In an August 21, 2018 medical report, Dr. Ky Kobayashi, a Board-certified orthopedic 

surgeon diagnosed left hand ulnar neuropathy. He noted that appellant’s prior nerve conduction 

studies in February 2018 were reported as within normal limits; however, he recommended new 

diagnostic studies. 

In an August 28, 2018 medical report, Dr. Centi noted appellant’s complaints of continued 

pain to the left wrist and left knee which began on January 4, 2017. He diagnosed contusion of 

left hand, contusion of right knee, contusion of left knee, sprain of other part of left wrist and hand, 

sprain of left rotator cuff capsule, nondisplaced fracture of middle third navicular bone of left wrist

with routine healing, other spontaneous disruption of anterior cruciate ligament of left knee, and 

other tear of lateral meniscus of left knee current injury. Dr. Centi reported that the cause of these 

conditions was the employment injury. He projected that appellant would reach MMI on 

September 24, 2018 when she could work full duty without restrictions. 

By letter dated September 10, 2018, OWCP provided Dr. Centi a copy of Dr. Ciccone’s 

second opinion report for review. It requested the physician provide a narrative medical report 

supported by objective medical rationale if he disagreed with the findings of the second opinion 

physician. 

In a September 24, 2018 state workers’ compensation form report, Dr. Centi reported that

appellant could return to full-duty work without restrictions and had reached MMI. 

On November 6, 2018 OWCP proposed to terminate appellant’s wage-loss compensation 

benefits because she no longer had disability causally related to her January 4, 2017 employment 

injury. It found that the weight of medical evidence established that her work-related disability 

related to the January 4, 2017 employment injury had ceased based on Dr. Ciccone’s second 

opinion reports as well as the opinion of Dr. Centi, her attending physician. OWCP noted that the 

decision did not propose to terminate appellant’s medical benefits which would remain open if 

treatment was still needed for her accepted conditions. It provided her 30 days to submit additional 

evidence and argument if she disagreed with the proposed termination of her wage-loss 

compensation benefits. 
5

By narrative statement dated December 6, 2018, appellant reported that she had been under 

the care of Dr. Neubauer until July 17, 2018 who provided work restrictions. Dr. Neubauer was 

subsequently replaced by Dr. Centi on August 20, 2018 who provided her with the same work 

restrictions. Appellant stated that on September 24, 2018 she was evaluated again by Dr. Centi 

who informed her that he was “closing [appellant’s] case because he was required to agree” with 

the second opinion physician and had no choice in the matter. Dr. Centi informed her that she had 

to cover her own medical expenses. Appellant further stated that she contacted the employing 

establishment on December 4, 2018 regarding her position as a holiday clerk assistant, but was 

told the position ended on January 6, 2017. 

By decision dated December 10, 2018, OWCP terminated appellant’s wage-loss 

compensation benefits, effective December 9, 2018, finding that Dr. Centi, her attending 

physician, had agreed with Dr. Ciccone’s opinion and released her to full-duty work without 

restrictions on September 24, 2018. 

On January 8, 2019 appellant requested reconsideration of OWCP’s decision. In support 

of her claim, she submitted a July 12, 2018 MRI scan of the left hand and an August 17, 2018

medical report from Dr. Meinig previously of record. 

By decision dated January 14, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of her claim. It found that she failed to submit any new and pertinent medical 

evidence as the medical reports were previously submitted and considered in its prior decision. 

LEGAL PRECEDENT -- ISSUE 1

Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.5 Having determined that, an employee has a 

disability causally related to factors of his or her federal employment, OWCP may not terminate 

compensation without establishing either that the disability has ceased or that it is no longer related 

to the employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.7

For conditions not accepted by OWCP as being employment related, it is the employee’s 

burden to provide rationalized medical evidence sufficient to establish causal relationship, not 

OWCP’s burden to disprove such relationship.8

 

5 A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 

(2005); Paul L. Stewart, 54 ECAB 824 (2003).

6 A.G., Docket No. 18-0749 (issued November 7, 2018); see also Jason C. Armstrong, 40 ECAB 907 (1989); 

Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).

7 R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 

351 (1975).

8 G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 

ECAB 638 (2000).
6

ANALYSIS -- ISSUE 1

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

compensation benefits effective December 9, 2018 as she no longer had disability causally related 

to the January 4, 2017 employment injury.9

On March 28, 2018 OWCP referred appellant for a second opinion examination with

Dr. Ciccone.10 In his March 28 and August 13, 2018 medical reports, Dr. Ciccone noted review 

of her medical history, diagnostic testing, and findings on physical examination. He opined that 

appellant was no longer disabled due to the accepted work-related injuries and that any continued 

pain and conditions were related to preexisting degenerative changes unrelated to the January 4, 

2017 employment injury. The Board has reviewed the opinion of Dr. Ciccone and finds that it has 

reliability, probative value, and convincing quality with respect to its conclusions regarding the 

relevant issue in the present case.11 Dr. Ciccone’s opinion is based on a proper factual and medical 

history and he thoroughly reviewed the SOAF and medical records.12 He provided medical 

rationale for his opinion by stating that appellant’s current left wrist condition related to 

degenerative changes which were not caused or aggravated by the January 4, 2017 employment 

incident, explaining that her left wrist condition and symptoms had improved since the 

employment incident and there was no evidence of fracture on any diagnostic studies other than 

her preexisting degenerative conditions. Dr. Ciccone further explained that her left shoulder 

condition had resolved based on physical examination findings and diagnostic studies which 

revealed labral tearing and glenohumeral cartilage loss, which were preexisting and degenerative 

in nature and unrelated to any acute work trauma. He discussed appellant’s right knee condition 

which had resolved as her diagnostic studies showed no evidence of fracture and her February 22, 

2018 examination revealed nearly full range of motion and minimal knee pain. Dr. Ciccone further 

explained that the left knee condition had resolved based on physical examination findings and 

diagnostic studies which showed that her current left knee complaints were unrelated to an acute 

injury and caused by preexisting degenerative changes. Given the above findings, he opined that 

appellant’s disability had ceased and she had no limitations as a result of her January 4, 2017 

employment incident. Dr. Ciccone based his opinion on a proper factual and medical history and 

physical examination findings and provided medical rationale. The Board further notes that

Dr. Centi, in his September 24, 2018 report, concurred that appellant was no longer disabled and

could return to full-time full-duty work without restrictions. The Board thus finds that OWCP 

properly relied on Dr. Ciccone’s second-opinion report and Dr. Centi’s concurrence in terminating 

her wage-loss compensation.13

OWCP also received medical reports from other treating physicians. Dr. Meinig’s 

August 17 and October 23, 2018 medical reports noted appellant’s left knee diagnoses, but related 

 

9 B.W., Docket No. 17-0972 (issued July 6, 2018).

10 See 20 C.F.R. § 10.320.

11 C.E., Docket No. 19-0661 (issued October 1, 2019); see also R.W., Docket No. 12-375 (issued October 28, 2013).

12 See M.H., Docket No. 17-0210 (issued July 3, 2018); Melvina Jackson, 38 ECAB 443 (1987).

13 K.W., Docket No. 19-1224 (issued November 15, 2019). 
7

that she had no functional restrictions from her left knee condition. His reports therefore did not 

support that she continued to have disability causally related to the accepted conditions. 

While Dr. Neubauer noted that appellant’s diagnosed conditions were related to her work 

activities and he provided diagnoses of contusion of left hand, contusion of right knee, contusion 

of left knee, sprain of left wrist and hand, sprain of left rotator cuff capsule, nondisplaced fracture 

of middle third navicular bone of left wrist with routine healing, other spontaneous disruption of 

anterior cruciate ligament of left knee, other tear of lateral meniscus of left knee current injury, 

and trigger finger of left ring finger, he failed to provide any explanation as to why she was 

disabled of the accepted employment conditions.14 The Board further notes that as he last 

evaluated her on July 16, 2018 his medical restrictions were not contemporaneous with the 

termination of her wage-loss benefits.

15

While on August 21, 2018 Dr. Kobayashi diagnosed appellant’s left hand condition as 

ulnar neuropathy, he did not provide a rationalized medical opinion explaining how this condition 

was disabling and was causally related to the accepted employment injury.16 As such, his report 

was insufficient to establish her entitlement to wage-loss compensation after December 9, 2018. 

As the evidence of record establishes appellant no longer has disability due to her accepted 

January 4, 2017 employment conditions, the Board finds that OWCP properly terminated her 

entitlement to wage-loss compensation benefits effective December 9, 2018.

LEGAL PRECEDENT -- ISSUE 2

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

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against payment of compensation at any time on his own motion or on application.

17

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP’s

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.18 

 

14 See M.M., Docket No. 19-0061 (issued November 21, 2019). 

15 See B.A., Docket No. 17-1471 (issued July 27, 2018). 

16 R.B., Docket No. 19-0204 (issued September 6, 2019). 

17 5 U.S.C. § 8128(a).

18 20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019); D.K., 59 ECAB 

141 (2007).
8

Section 10.608(b) of OWCP’s regulations provides that when a request for reconsideration 

does not meet at least one of the three requirements enumerated under section 10.606(b)(3), OWCP 

will deny the request for reconsideration without reopening the case for a review on the merits.19

ANALYSIS -- ISSUE 2

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

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

In her request for reconsideration, appellant did not show that OWCP erroneously applied 

or interpreted a specific point of law, and she did not advance a new and relevant legal argument 

not previously considered.

20

 Consequently, she is not entitled to review of the merits of her claim 

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

The Board notes that the underlying issue in this case is whether OWCP properly 

terminated appellant’s compensation benefits as she no longer had continuing disability causally 

related to her accepted January 4, 2017 employment injury on or after December 9, 2018. That is 

a medical issue which must be addressed by relevant medical evidence not previously 

considered.21 In support of her claim, appellant resubmitted a July 12, 2018 MRI scan of the left 

hand and an August 17, 2018 medical report from Dr. Meinig. The Board notes that these reports

were previously addressed and evaluated by OWCP in its December 10, 2018 merit decision. As 

the reports are duplicative and repeated evidence already in the case record, they do not constitute 

a basis for reopening the case.22 A claimant may obtain a merit review of an OWCP decision by 

submitting relevant and pertinent new evidence. In this case, appellant failed to submit any 

relevant and pertinent new evidence in support of her claim and she is not entitled to a merit review 

based on the third requirement under section 10.606(b)(3).23

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3).24 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

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

compensation benefits, effective December 9, 2018, as she no longer had disability causally related 

to her accepted left hand contusion, bilateral knee contusions, left wrist and hand sprain, tear of 

the left knee lateral meniscus, and left shoulder impingement syndrome. The Board also finds that 

 

19 Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019); K.H., 59 ECAB 495 (2008). 

20 E.M., Docket No. 18-1546 (issued December 12, 2019); Sherry A. Hunt, 49 ECAB 467 (1998).

21 A.K., Docket No. 19-1210 (issued November 20, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

22 J.S., Docket No. 18-0726 (issued November 5, 2018).

23 R.L., Docket No. 18-0175 (issued September 5, 2018).

24 L.S., Docket No. 18-0367 (issued September 23, 2019).
9

OWCP properly denied her request for reconsideration of the merits of her claim pursuant to 5 

U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the January 14, 2019 and December 10, 2018 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: February 11, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board