United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.R., Appellant

and

TENNESSEE VALLEY AUTHORITY, WATTS 

BAR NUCLEAR PLANT, Spring City, TN, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-0480

Issued: August 17, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 20, 2019 appellant filed a timely appeal from a July 30, 2019 merit decision 

and an October 31, 2019 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 wageloss compensation and medical benefits, effective July 31, 2019, as he no longer had residuals or 

disability causally related to his February 21, 1986 employment injury; and (2) whether OWCP 

properly denied appellant’s request for a review of the written record as untimely filed pursuant to 

5 U.S.C. § 8124(b).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board on a different issue. The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference.2 The 

relevant facts are as follows.

On March 3, 1986 appellant, then a 45-year-old filed a traumatic injury claim (Form CA-1) 

alleging on February 21, 1986 that he slipped off a pipe and fell approximately two or three feet

landing on another pipe causing a lower back and hip injury while in the performance of duty. On 

March 24, 1986 OWCP accepted this claim for contusion and low back sprain. Appellant returned 

to work August 21 through December 4, 1986.

On December 4, 1986 appellant filed a claim for recurrence of disability (Form CA-2a) 

and alleged that he had sustained a recurrence of disability due to his February 21, 1986 

employment injury. By decisions dated March 25 and October 14, 1987, January 29 and 

December 12, 1988, and May 31, 1989, OWCP denied his claimed recurrence of disability. 

Appellant appealed to the Board and by decision dated November 30, 1989, the Board remanded 

the case for further development of the medical evidence.3

On July 11, 1990 OWCP expanded acceptance of appellant’s claim to include chronic 

lumbosacral strain.

By decision dated December 6, 1995, OWCP found that appellant’s position as a pipefitter 

with wages of $265.18 per week fairly and reasonably represented his wage-earning capacity. It 

reduced his wage-loss compensation benefits based on his actual earnings in this position.

On July 1, 2011 appellant’s attending physician, Dr. John D. Dugan, an osteopath and a 

Board-certified family practitioner, diagnosed chronic pain secondary to degenerative disc disease 

of the lumbar spine. He noted that this condition was worsening and permanent.

In a note dated May 21, 2013, Dr. Jeffrey S. Acree, a Board-certified family practitioner, 

diagnosed knee osteoarthritis, and a 1986 work injury of a lumbar spine condition which resulted 

in worsening back pain and difficulties walking. He opined that appellant was totally disabled.

On April 21, 2014 Dr. Acree again diagnosed knee osteoarthritis and noted appellant’s

1986 spine injury. He repeated his opinion that appellant had worsening back pain and could not 

return to work.

On July 1, 2014 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

series of questions for a second opinion evaluation with Dr. Nicholas A. Grimaldi, an osteopath

and a Board-certified orthopedic surgeon. In his August 12, 2014 report, Dr. Grimaldi described 

appellant’s history of injury on February 21, 1986 and performed a physical examination. He 

found L4-5 degenerative disc disease, facet arthrosis, and anterior bone spurs from L2 to L5 on 

 

2 Docket No. 89-1500 (issued November 30, 1989).

3

Id.
3

x-rays. Dr. Grimaldi diagnosed chronic low back pain and degenerative disc disease L4-5. He 

opined that appellant’s accepted work injuries had not resolved, as he continued to have 

degenerative disc disease in his back and chronic findings in his physical examination. 

Dr. Grimaldi found that appellant could not return to work.

In a July 12, 2016 note, Dr. Acree advised that appellant was totally disabled from work 

due to his chronic low back pain with arthritis, stenosis, lumbar radiculopathy, and severe 

degenerative changes in both knees.

On June 26, 2017 OWCP referred appellant, a SOAF, and a series of questions for a second 

opinion evaluation with Dr. Glenn L. Scott, a Board-certified orthopedic surgeon.

In a July 25, 2017 report, Dr. Scott reviewed the history of injury and acknowledged the 

SOAF. He diagnosed degenerative lumbar spine and disc disease with chronic radiculopathy, 

degenerative joint disease in both knee, diabetes mellitus, and chronic hypertension. Dr. Scott

found that appellant’s accepted work injuries of lumbar strain and lumbar contusion had not 

resolved and that the sequelae were still present in the form of chronic progressive degenerative 

lumbar spine and disc disease. He also found that appellant was not capable of returning to his 

date-of-injury position.

On November 29, 2018 appellant submitted a note of even date from a physician assistant. 

He also provided an August 9, 2018 lumbar MRI scan which demonstrated multilevel degenerative 

changes of the lumbar spine with progression from 2010.

In a letter dated May 9, 2019, OWCP referred appellant, a SOAF, and a series of questions 

for an additional second opinion evaluation with Dr. Grimaldi. In his May 30, 2019 report,

Dr. Grimaldi reviewed the SOAF and noted appellant’s history of injury. He reviewed appellant’s 

diagnostic studies and diagnosed lumbar degenerative disc disease and spondylosis. In his answers 

to the OWCP questions, Dr. Grimaldi opined that appellant’s lumbar strain and lumbar contusion 

had resolved. He attributed appellant’s continued back pain to his disc degeneration and 

spondylosis. Dr. Grimaldi opined that these conditions were not due to appellant’s accepted workrelated conditions of strain and contusion, but were due to age-related degeneration and other 

nonemployment-related conditions. He found that appellant could not returned to his date-ofinjury position, but that his disability was not due to his accepted employment injuries. 

In a letter dated July 27, 2019, OWCP notified appellant of the proposed termination of his 

wage-loss compensation and medical benefits. It found that Dr. Grimaldi’s report was entitled to 

the weight of the medical evidence and established that appellant had no disability or medical 

residuals as a result of his accepted employment injuries. OWCP informed appellant that his case 

would be held open for 30 days to afford him an opportunity to submit additional evidence or 

argument if he disagreed with the proposed termination.

In a letter to his Congressional Representative, appellant asserted that he continued to 

experience back pain, that he had two bad knees, and that he used a cane to walk and was unable 

to drive.

By decision dated July 30, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective July 31, 2019. It found that the weight of the medical opinion 
4

evidence rested with Dr. Grimaldi, who found that his employment-related disability and medical 

residuals had resolved.

By appeal request form postmarked October 11, 2019, appellant requested a review of the 

written record by a representative of OWCP’s Branch of Hearings and Review.

By decision dated October 31, 2019, the hearing representative denied appellant’s request 

for a review of the written record as untimely filed, finding that it was made more than 30 days 

after the July 30, 2019 merit decision as it was postmarked on October 11, 2019. The hearing 

representative further exercised their discretion and determined that the issue in this case could 

equally well be addressed by requesting reconsideration before OWCP, along with the submission 

of new evidence.

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.4 After it has determined that an employee 

has disability causally related to his or her federal employment, it may not terminate compensation 

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

OWCP’s burden of proof 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.7 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which would 

require further medical treatment.8

ANALYSIS -- ISSUE 1

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

compensation and medical benefits effective July 31, 2019, as he no longer had residuals or 

disability causally related to his accepted February 21,1986 employment injury.

OWCP based its decision to terminate appellant’s wage-loss compensation and medical 

benefits on the opinion of Dr. Grimaldi, OWCP’s second opinion physician, who found that his 

accepted conditions of lumbosacral strain and lumbar contusion had resolved. Dr. Grimaldi

reviewed appellant’s diagnostic studies and concluded that the additional conditions of lumbar 

degenerative disc disease and spondylosis were not due to appellant’s accepted work-related 

 

4 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

J.H., Docket No. 17-1916 (issued January 9, 2019); James F. Weikel, 54 ECAB 660 (2003).
5

conditions of strain and contusion, but due to age-related degeneration. He found that appellant 

could not returned to his date-of-injury position, but that his disability was not due to his accepted 

employment injuries. 

The factors that comprise the evaluation of medical opinion evidence include the 

opportunity for and thoroughness of physical examination, the accuracy, or 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.9 As Dr. Grimaldi explained his 

review of the medical evidence and the findings of his physical examination, his opinion provides 

sufficient detail to constitute a rationalized medical opinion as to why appellant’s accepted 

employment injuries had resolved without residuals. His opinion is sufficiently probative, 

rationalized, and based upon a proper factual background10 and it represents the weight of the 

medical evidence at the time of its July 30, 2019 termination decision.11 Thus, the Board finds 

that OWCP properly relied on Dr. Grimaldi’s second opinion report and has met its burden of 

proof to terminate appellant’s wage-loss compensation and medical benefits.

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 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], a claimant for compensation not satisfied with a decision of the 

Secretary under subsection (a) of this section is entitled, on request made within 30 days after the 

date of the issuance of the decision, to a hearing on [his] claim before a representative of the 

Secretary.”

12

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: An oral hearing or a review of the written record.”

13

 The hearing request 

must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the 

date of the decision for which a hearing is sought.14 OWCP has discretion, however, to grant or 

 

9 B.C., Docket No. 16-0978 (issued November 21, 2016); Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. 

Delaney, 53 ECAB 384 (2002).

10 A.B., Docket No. 16-0480 (issued August 29, 2016).

11 C.P., Docket No. 15-0617 (issued August 4, 2015).

12 5 U.S.C. § 8124(b)(1).

13 20 C.F.R. § 10.615.

14 Id. at § 10.616.
6

deny a request that is made after this 30-day period.15 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.16

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for a review of the written 

record as untimely filed pursuant to 5 U.S.C. § 8124.

OWCP’s regulations provide that a request for review of the written record must be made 

within 30 days of the date of the decision for which a review is sought. Appellant’s October 8, 

2019 request for a review of the record was postmarked on October 11, 2019, more than 30 days 

after the issuance of OWCP’s July 30, 2019 merit decision. Because the postmark date was more 

than 30 days after the date of OWCP’s July 30, 2019 decision, the Board finds that the request was 

untimely filed and he was not entitled to a review of the written record as a matter of right.17

Although appellant was not entitled to a hearing as a matter of right, OWCP’s Branch of 

Hearings and Review may exercise its discretion to either grant or deny a hearing following 

reconsideration.18 In this instance, the hearing representative denied a discretionary review of the 

written record because appellant could instead submit new evidence and request reconsideration 

before OWCP. The Board finds that the hearing representative properly exercised their

discretionary authority in denying appellant’s request for an oral hearing.19

The Board has held that the only limitation on OWCP’s authority is reasonableness.20 An 

abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts.21 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant s request for a review of the written record. Accordingly, the 

Board finds that OWCP properly denied appellant s request for a review of the written record.

 

15 G.W., Docket No. 10-0782 (issued April 23, 2010).

16 Id.

17 The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review 

commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).

18 D.E., 59 ECAB 438, 442-43 (2008); J.C., 59 ECAB 206, 210-11 (2007).

19 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 known facts. André 

Thyratron, 54 ECAB 257, 261 (2002).

20 R.M., Docket No. 19-1088 (issued November 17, 2020). See also E.S., Docket No. 18-1750 (issued 

March 11, 2019).

21 P.C., Docket No. 19-1003 (issued December 4, 2019).
7

CONCLUSION

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

compensation and medical benefits, effective July 30, 2019. The Board further finds that OWCP 

properly denied appellant’s request for review of the written record as untimely,

5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the July 30 and October 31, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: August 17, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board