United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, AIRMAIL FACILITY,
Seattle, WA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-1008
Issued: August 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 27, 2014 appellant filed a timely appeal from a November 19, 2013 merit
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.
ISSUE
The issue is whether appellant has established a recurrence of disability causally related
to her employment injury.
FACTUAL HISTORY
The case has been before the Board on prior appeals. In a decision dated June 30, 1992,
the Board affirmed an OWCP decision finding that residuals of the October 15, 1986 low back

1

5 U.S.C. § 8101 et seq.

strain had ceased by December 5, 1986.2 In a decision dated August 4, 1995, the Board affirmed
that appellant’s request for reconsideration was untimely and failed to show clear evidence of
error.3 By decision dated May 10, 2001, the Board remanded the case to OWCP for further
development.4 The Board noted that appellant had filed a claim on January 8, 1998 for a
recurrence of disability and submitted probative evidence in support of her claim. By decision
dated September 9, 2003, the Board remanded the case on the grounds that a conflict in the
medical evidence existed.5
In a decision dated March 23, 2005, an OWCP hearing representative found that the
orthopedic surgeon selected to resolve the conflict, Dr. Donald Hubbard, had inferred that a
chronic myofascial pain syndrome was causally related to the employment injury. The hearing
representative stated that the case should be referred to an appropriate specialist on the issue.
OWCP referred appellant to an orthopedic surgeon. By decision dated August 23, 2006, an
OWCP hearing representative stated that OWCP should have referred appellant to a “Boardcertified pain specialist.” In a decision dated October 15, 2007, an OWCP hearing representative
found a conflict in the medical evidence on the issue of an employment-related disability on or
after December 5, 1986, and directed that appellant should be referred to “a Board-certified
specialist in pain management for an examination and reasoned opinion on whether the
claimant’s myofascial pain syndrome condition and any disability for work, on or after
December 5, 1986, was causally related to the accepted employment-related injury of
October 15, 1986.”
By order dated April 21, 2011, the Board remanded the case on the grounds that the
physician selected to resolve the conflict, Dr. Aleksandra Zietak, was not Board-certified in the
subspecialty of pain medicine. In a decision dated August 30, 2011, OWCP found that new
“documentation” established Dr. Zietak was certified in pain medicine. By order dated July 12,
2012, the Board found there was no evidence that the physician selected was properly Boardcertified. In an order dated May 13, 2013, the Board again remanded the case, finding the new
referee physician selected, Dr. Daniel Brzusek, was not established as Board-certified on pain
medicine. The history of the case as provided in the Board’s prior decisions and orders is
incorporated herein by reference.
On return of the case record, OWCP selected Dr. Russell Faria, an osteopath, as a referee
physician, who is Board-certified in family medicine, anesthesiology, with certification in the

2

Docket No. 92-4 (issued June 30, 1992).

3

Docket No. 94-442 (issued August 4, 1995).

4

Docket No. 00-1400 (issued May 10, 2001).

5

Docket No. 03-1108 (issued September 9, 2003). The record also contains an October 19, 2004 order
remanding the case to OWCP on the grounds that a November 26, 2003 OWCP decision was not sent to the
designated representative. Docket No. 04-1414 (issued October 19, 2004).

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subspecialty of pain medicine. In a report dated November 7, 2013, Dr. Faria provided a history,
reviewed medical records and results on examination. He stated,
“The claimant did not develop a pain syndrome on or after December 5, 1986.
The massive documentation repeatedly shows nothing more than a simple lumbar
sprain and strain with marked symptom magnification, anxiety and somatization.
There is marked discrepancy between appellant’s severe pain behavior and
clinical findings, of which there are really none, no objective clinical findings, as
well as imaging studies, which are normal.”
Dr. Faria opined that employment-related disability would have ceased by October 30, 1986 and
appellant did not have any physical limitations from the October 15, 1986 injury.
By decision dated November 19, 2013, OWCP denied the claim for a recurrence of
disability. It found the weight of the evidence was represented by Dr. Faria.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”6 When an employee, who is disabled from the job he or she held when
injured on account of employment-related residuals, returns to a light-duty position or the
medical evidence establishes that light duty can be performed, the employee has the burden to
establish by the weight of reliable, probative and substantial evidence a recurrence of total
disability. As part of this burden of proof, the employee must show either a change in the nature
and extent of the injury-related condition, or a change in the nature and extent of the light-duty
requirements.7
The Board has held that to be of probative value a medical opinion must be based on a
complete factual and medical background, of reasonable medical certainty and supported by
medical rationale.8 The term medical rationale refers to a medically sound explanation for the
opinion offered.9 It is well established that when a case is referred to a referee for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.10

6

20 C.F.R. § 10.5 (x).

7

Terry R. Hedman, 38 ECAB 222 (1986).

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
10

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

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ANALYSIS
As the Board noted in its June 30, 1992 decision, OWCP accepted a low back strain in
the performance of duty on October 15, 1986. Appellant had returned to a light-duty job
and according to the employing establishment she worked intermittently through
November 21, 1986. The Board found that residuals of the employment injury had ceased by
December 5, 1986. Appellant filed a claim for a recurrence of disability, and the Board found, in
its September 9, 2003 decision, that a conflict in the medical evidence existed.11 An OWCP
hearing representative found that proper resolution of the conflict required referral to a referee
that was Board-certified in pain medicine. The case has been remanded to OWCP as the
physicians selected as referee physicians were not properly Board-certified in this subspecialty.
The selection of Dr. Faria does meet the certification requirements, as the record
indicates that he is Board-certified in anesthesiology and the subspecialty of pain medicine. In
addition, Dr. Faria provided a complete report with a detailed review of the medical evidence
and physical examination findings. He offered an unequivocal opinion that appellant did not
develop an employment-related pain syndrome. Dr. Faria indicated that appellant had sustained
a simple lumbar sprain and strain and noted the results on imaging studies. He indicated that,
based on his examination and review of the evidence, appellant did not have a recurrence of
employment-related disability on or after December 5, 1986 based on a pain syndrome.
The Board finds that Dr. Faria provided a medical opinion based on a complete and
accurate background and supported by sound medical reasoning. As noted above, a referee
physician’s opinion is entitled to special weight if sufficiently rationalized and based on a proper
background. The opinion provided in the November 7, 2013 report constitutes the weight of the
medical evidence in this case. The Board accordingly finds that OWCP properly denied the
claim for compensation commencing December 5, 1986. 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.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability causally
related to her employment injury.

11

The initial recurrence of disability claim was for disability commencing January 8, 1998, but it appears that
appellant has claimed disability on or after December 5, 1986.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 19, 2013 is affirmed.
Issued: August 26, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mill Valley, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1235
Issued: March 30, 2021

Case Submitted on the Record

ORDER REVERSING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On May 16, 2019 appellant, through counsel, filed a timely appeal from an April 30, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 19-1235.
On December 8, 2003 appellant, then a 35-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on November 14, 2003 he sustained head and upper body injuries
during a motor vehicle accident (MVA) when his postal vehicle was rear ended by another vehicle
while in the performance of duty. He stopped work on November 15, 2003. By decision dated
February 6, 2004, OWCP accepted the claim for cervical sprain. It paid appellant compensation
for intermittent periods of disability on the supplemental rolls commencing December 30, 2003
and for temporary partial disability compensation through June 1, 2004 when he returned to fulltime modified-duty work.
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

Appellant provided medical reports documenting continued treatment with his attending
physician Dr. Michael Hebrard, Board-certified in physical medicine and rehabilitation.
On July 13, 2018 appellant filed a Form CA-7 for leave without pay for intermittent dates
from January 18 to July 9, 2018, claiming 15 hours of leave for medical appointments. On his
accompanying time analysis form (Form CA-7a), he requested 3 hours on January 18, 2018; 3.5
hours on March 5, 2018; 3 hours on April 16, 2018; 4 hours on June 1, 2018; and 1.5 hours on
July 9, 2018.
OWCP received medical reports dated from January 18 through July 9, 2018 from
Dr. Hebrard documenting treatment for appellant’s neck sprain and related cervical conditions. In
his reports, Dr. Hebrard provided findings on physical examination and opined that appellant’s
ongoing functional deficit was related to his work-related injury which was still present and
medically disabling.
By decision dated September 11, 2018, OWCP denied appellant’s claim for intermittent
wage loss from January 18 to July 9, 2018.
By decision dated April 30, 2019, an OWCP hearing representative affirmed the
September 11, 2018 decision.
Having reviewed the case record, the Board finds that appellant has met his burden of proof
to establish entitlement to wage-loss compensation for the 15 hours of intermittent hours of
disability claimed for the period January 18 and July 9, 2018. The accompanying Form CA-7a
time analysis form for the period in question indicated wage loss for attending medical
appointments including: 3 hours on January 18, 2018; 3.5 hours on March 5, 2018; 3 hours on
April 16, 2018; 4 hours on June 1, 2018; and 1.5 hours on July 9, 2018. The record contains
evidence documenting examination and treatment by Dr. Hebrard on these dates for appellant’s
accepted cervical strain condition.
OWCP’s procedures provide that wages lost for compensable medical examination or
treatment may be reimbursed.2 The evidence should establish that a claimant attended an
examination or treatment for the accepted work injury on the dates claimed in order for
compensation to be payable.3 For a routine medical appointment, a maximum of four hours may
be allowed.4
The Board finds that the evidence of record establishes that appellant obtained medical
treatment by his attending physician, Dr. Hebrard, on the dates in question due to his work-related
cervical sprain condition.5 Accordingly, on return of the case record OWCP shall grant
2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
3

Id. at Chapter 2.901.19(a)(3).

4

Id. at Chapter 2.901.19(c); T.S., Docket No. 19-0347 (issued July 9, 2019).

5

M.A., Docket No. 16-1602 (issued May 22, 2017); J.H., Docket No. 16-0801 (issued November 15, 2016).

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compensation for appellant’s 15 hours of wage loss due to medical appointments with Dr. Hebrard
from January 18 to July 9, 2018.
IT IS HEREBY ORDERED THAT the April 30, 2019 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for payment consistent with this
order of the Board.
Issued: March 30, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Pittsburgh, PA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-1432
Issued: December 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 30, 2016 appellant filed a timely appeal of a January 21, 2016 merit 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish the expansion of
his claim to include cervical degenerative disc disease as causally related to his accepted
employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 4, 2015 appellant, then a 54-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he developed pain in his shoulder, arm, and neck beginning on
May 11, 2015. He attributed his conditions to throwing 10,000 pieces of mail a day, five to six
days a week. In his statement, appellant noted that his shoulder pain began on April 23 and 24,
2015 while throwing mail. By the night of April 24, 2015, his shoulder pain kept him awake at
night. Appellant did not work for a week due to the death of his mother, but returned to work on
May 6, 2015 and experienced increased shoulder discomfort. He attributed his shoulder
condition to the repetitive movement of his arm and shoulder.
Dr. Shawn Naseem, a Board-certified internist, completed a note on May 11, 2015 and
provided work restrictions. In a note dated May 19, 2015, Dr. David P. Fowler, a Board-certified
orthopedic surgeon, provided work restrictions including no overhead work or lateral movement
of the right shoulder.
On May 28, 2015 appellant underwent an arthrogram magnetic resonance imaging (MRI)
scan which demonstrated congenital retroversion of the scapular glenoid with compensatory
hypertrophy of the posterior labrum, a chronic superior labrum anterior to posterior (SLAP) tear,
tear of the biceps tendon, advanced acromioclavicular osteoarthritis with a hypertrophied and
bulbous distal clavicle, and mild muscle atrophy.
Dr. Naseem completed a report on June 3, 2015 describing appellant’s increasing
shoulder pain over the past three weeks. He noted that appellant cased mail using his right arm
repetitively throughout the day. Dr. Naseem described this activity as sorting through mail and
placing letters and parcels into bins and slots. He indicated that the weight of the objects sorted
ranged from letters to heavier packages. Dr. Naseem found a positive Hawkins test with pain on
posterior rotation. He examined appellant’s x-rays which demonstrated dysplastic and
retroverted scapular glenoid, rotator cuff calcific tendinopathy, supraspinatus outlet stenosis, and
advanced acromioclavicular osteoarthritis. Dr. Naseem also noted that appellant’s MRI scan
showed a SLAP tear, a large labral cyst, biceps tear, advanced osteoarthritis, and significant
muscle atrophy. He opined that appellant’s years of repetitive motion of using his right shoulder
in his occupation as a mail caser was responsible for these conditions.
On June 2, 2015 Dr. Fowler opined that the labral tear had been present for a long time
and recommended a cortisone shot. He diagnosed a chronic labral tear which led to a labral cyst.
Dr. Fowler attributed this condition to work and overuse. He recommended surgery.
Dr. Frank B. Artuso, a Board-certified physiatrist, examined appellant on June 4, 2015.
He noted appellant’s reports of increasing pain in the right shoulder and right forearm.
Dr. Artuso found that appellant lost strength if he attempted to reach above his waist and had
difficulty rotating his head to the right. He reviewed an electromyogram (EMG) and found
changes in the C5 and C6 innervated musculature consistent with motor radiculopathy.
Appellant accepted a light-duty position at the employing establishment on
June 11, 2015. He underwent a cervical MRI scan on June 16, 2015. This scan showed
multilevel degenerative changes of the cervical spine most severe at C6-7 as well as severe right

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foraminal narrowing at C4-5, and moderate-to-severe left foraminal narrowing at C3-4, with
bilateral foraminal narrowing at C5-6.
By decision dated July 23, 2015, OWCP accepted appellant’s occupational disease claim
for shoulder and upper arm sprain as well as superior glenoid labrum lesion on the right.
In a note dated May 19, 2015, Dr. Fowler reported that appellant had two separate work
injuries, a calf condition from climbing stairs at work, and a repetitive use claim. He noted that
appellant cased more than 10,000 pieces of mail a day and worked five to six days a week.
Dr. Fowler reported that appellant had performed the same job for 30 years. On examination he
found marked tenderness in the subacromial space of the shoulder with difficulty lifting an
empty can. Dr. Fowler reviewed appellant’s shoulder x-ray which revealed calcific rotator cuff
tendinitis and postulated that appellant could have a rotator cuff tear.
On July 10, 2015 Dr. Joon Yung Lee, a Board-certified orthopedic surgeon, found that
appellant had symptoms consistent with C5 palsy including deltoid weakness and biceps
weakness. He noted that appellant’s EMG confirmed that appellant had C5 and C6 nerve root
compression. Dr. Lee found that appellant had congenital spinal stenosis of the cervical spine
with cord compression and foraminal stenosis. He noted that appellant had significant muscle
weakness of the right arm which correlated with his MRI scan findings. Dr. Lee recommended a
C3-6 laminectomy with possible right-sided foraminotomies at C4-5 and C5-6 with posterior
spinal fusion at C3-7.
Dr. Fowler examined appellant on July 16, 2015 and reviewed Dr. Lee’s opinion that
appellant’s shoulder weakness was from his neck which was not related to work. He noted that
appellant had weakness in his deltoid and biceps as well as wasting in the posterior shoulder
musculature attributable to the paralabral cyst. Dr. Fowler referred appellant for a neurosurgical
spine consultation.
In a July 21, 2015 note, Dr. Stephen J. Rabuck, an orthopedic surgeon, reported
appellant’s history of right shoulder pain and weakness. He related that appellant attributed his
condition to work as he performed repetitive lifting activities. Dr. Rabuck recommended
addressing appellant’s cervical spine issues first.
Dr. Eugene Bonaroti, a Board-certified neurosurgeon, completed reports on July 20, and
August 24, 2015 describing appellant’s work duties of sorting mail and opining that appellant’s
right upper extremity deficits were a combination of shoulder pathology and several nerve root
impingements. He opined that appellant’s pain was due to his shoulder pathologies and that he
had weakness and atrophy of his biceps and deltoid of this right upper extremity due to cervical
stenosis. Dr. Bonaroti noted that appellant had EMG and MRI scan evidence of nerve root
compression with weakness and atrophy and recommended surgery to preserve and improve his
neurologic function. He noted that appellant’s right shoulder pathology was work related and
opined, “I do believe that the stress of his job had contributed to degeneration of the cervical
spine, leading to cervical nerve root impingement.” Dr. Bonaroti recommended an anterior
cervical discectomy, fusion, and plating at C4-5 and C5-6.

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In a September 14, 2015 letter, OWCP noted appellant’s request for cervical spine fusion,
but denied this request, pending review by an OWCP medical adviser, as to whether it was
related to the accepted conditions and the requested procedures.
Dr. Bonaroti completed a note on September 16, 2015 and diagnosed degenerative
disease of the cervical spine. He opined that this condition was “aggravated mechanically by the
fact that the patient [has] constantly look[ed] down 8 hours a day, 6 days a week for the last 30
years.” Dr. Bonaroti recommended that appellant undergo surgery as soon as medically safe to
avoid permanent nerve root injury.
OWCP’s medical adviser reviewed appellant’s records on September 25, 2015. He found
that OWCP should expand appellant’s claim to include the additional conditions of acromial
joint subluxation with degenerative changes. The medical adviser also agreed that appellant’s
right shoulder demonstrated chronic repetitive injury as evidence by calcific tendinopathy. He
noted, however, that appellant did not have a rotator cuff tear which would necessitate surgery
that the minor tear of the biceps tendon was of a degenerative nature which was not currently
causing symptoms, and that the labrum tear had responded very well to injection. The medical
adviser found that shoulder surgery was not necessary as appellant’s pain had resolved following
steroid injection.
With regard to appellant’s request for cervical surgery, OWCP’s medical adviser
disagreed with Dr. Bonaroti’s opinion that the stress of appellant’s job created anatomic
abnormalities in the cervical spine. He opined that the change in the anatomy of the cervical
spine was of a chronic degenerative nature which resulted in atrophy of the biceps musculature.
The medical adviser found that the atrophy was not a result of appellant’s shoulder pathology.
He agreed that appellant had advanced cervical spine disease, but concluded that appellant’s
repetitive shoulder use could not have caused spinal stenosis and other degenerative changes of
the cervical spine. The medical adviser determined that there was no basis to expand the
accepted conditions to include a cervical spine disorder.
OWCP’s medical adviser reviewed additional medical evidence on October 12, 2015
including Dr. Bonaroti’s August 24 and September 16, 2015 reports. He again asserted that
appellant’s cervical spine disorder was not due to his work duties disagreeing with
Dr. Bonaroti’s assertion that looking down at work contributed to appellant’s cervical conditions.
The medical adviser opined that the condition of multilevel degenerative disc disease was based
upon natural history and degenerative change and would have occurred regardless of appellant’s
occupation. He further determined that surgery was indicated due to appellant’s degenerative
disease and not on the basis for a work-related condition. The medical adviser attributed
appellant’s biceps atrophy to cervical spine nerve root compression. He also recommended that
appellant undergo a second cortisone injection prior to shoulder surgery, but opined that, if there
was limited motion and ongoing pain the right shoulder surgery, it should be authorized
regardless of whether or not cervical spine surgery is performed. The medical adviser concluded
that appellant’s cervical spine degenerative condition justified surgery, but that this condition
was not related to appellant’s work and was not an accepted condition. He opined that an
additional steroid injection should be made before right shoulder surgery was authorized.

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By decision dated October 21, 2015, OWCP updated appellant’s accepted conditions to
include subluxation of the right acromioclavicular joint.
Dr. Fowler completed a note on September 15, 2015 and opined that appellant’s cervical
stenosis surgery was work related. He hypothesized that appellant’s shoulder pain would
decrease with the cervical spine surgery. Dr. Fowler attributed appellant’s cervical condition to
overuse and opined that it was work related.
By decision dated January 21, 2016, OWCP denied appellant’s claim for additional
medical conditions as a result of his accepted occupational disease. It noted that appellant’s
June 4, 2015 claim was accepted for sprain of the shoulder and upper arm, superior glenoid
labrum lesion on the right, and subluxation of the right acromioclavicular joint. OWCP found
that the medical evidence did not establish that his cervical degenerative disc disease was due to
his accepted employment duties.
LEGAL PRECEDENT
Appellant bears the burden of proof to establish that a condition not accepted or approved
by OWCP is causally related to an employment injury.2 Causal relationship is a medical issue,
and the medical evidence generally required to establish causal relationship is rationalized
medical opinion evidence.3 The opinion of the physician must be based on a complete factual
and medical background of the claimant4 and must be one of reasonable medical certainty,5
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.6
ANALYSIS
The Board finds that appellant has not submitted the necessary rationalized medical
opinion evidence to establish that he developed cervical degenerative disc disease causally
related to his accepted employment injuries.
Appellant filed an occupational disease claim which OWCP accepted for sprain of the
right shoulder, superior glenoid labrum lesion, and subluxation of the right acromioclavicular
joint. He also attributed his cervical degenerative disc disease to his employment duties.
Appellant’s physicians, Drs. Fowler and Bonaroti, attributed appellant’s cervical condition to his
work. Dr. Bonaroti attributed appellant’s cervical condition to the stress of his job and also
opined that his cervical condition was aggravated mechanically by the fact that appellant had
constantly looked down 8 hours a day, 6 days a week for the past 30 years. Dr. Fowler attributed
2

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

3

John J. Montoya, 54 ECAB 306 (2003).

4

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

5

Supra note 3.

6

Judy C. Rogers, 54 ECAB 693 (2003).

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appellant’s cervical condition to overuse and opined that it was work related. However, Dr. Lee
found that appellant had congenital spinal stenosis rather than a work-related injury. The Board
finds that these reports are insufficiently detailed and well reasoned to meet appellant’s burden of
proof to establish an occupational disease for cervical degenerative disc disease.7 Appellant’s
physicians do not agree as to the cause of his cervical condition, with Dr. Lee opining that this
condition was in fact congenital. Drs. Fowler and Bonaroti did not provide consistent histories
of injury and attributed appellant’s condition to various components of his job including stress,
overuse, and looking down. Appellant has not implicated these specific factors of his position in
his occupational disease claim. Furthermore, there is no detailed and well-reasoned medical
opinion evidence attributing appellant’s cervical condition to his accepted employment duty of
casing mail.
The Board further notes that OWCP’s medical adviser did not support a causal
relationship between appellant’s diagnosed cervical degenerative disc disease and his
employment. The medical adviser repeatedly and consistently opined that appellant’s diagnosed
condition of multilevel cervical degenerative disc disease was based upon his natural history and
degenerative changes and would have occurred regardless of appellant’s occupation.
As there is no agreement between appellant’s physicians as to the cause of his
degenerative cervical disc disease, and as none of appellant’s physicians offered a clear and
detailed opinion as to the contribution from appellant’s employment, appellant has failed to
submit the necessary medical opinion evidence to establish his occupational disease claim for
cervical degenerative disc disease.
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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish the expansion
of his claim to include cervical degenerative disc disease as causally related to his accepted
employment injuries.

7

Supra note 3.

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ORDER
IT IS HEREBY ORDERED THAT the January 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE NAVY, U.S. MARINE
CORPS, Camp Lejeune, NC, Employer
__________________________________________

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Appearances:
Malton W. Brown, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 07-977
Issued: August 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 27, 2007 appellant filed a timely appeal from a November 28, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his claim for hearing loss as
untimely and a January 24, 2007 nonmerit decision denying his request for reconsideration.
Pursuant to 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 appellant filed his claim within the applicable time limitation
provisions of the Federal Employees’ Compensation Act;1 and (2) whether the Office properly
refused to reopen appellant’s case for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 1, 2005 appellant, then a 75-year-old retired laborer, filed an occupational
disease claim alleging that he sustained hearing loss in the performance of duty. He indicated
that he first became aware of his condition and its relationship to his federal employment on
June 25, 1952 and was last exposed to the employment conditions alleged to have caused his
condition on May 7, 1968, when he retired. Appellant stated that he delayed in notifying the
employing establishment of his condition because he was afraid of being “cut back or even let
go.”
Appellant submitted employment records from November 23, 1951 through May 7, 1968,
including an application for employment and a notice of approval of disability retirement
effective May 7, 1968. He submitted a job history indicating that he worked in various
capacities and was exposed to noise produced by industrial machines for eight hours per day
with no protection during his tenure at the employing establishment. Appellant stated that to the
best of his recollection, he reported his hearing loss to his supervisor in 1953, so that he could
“get it on record.”
A May 1, 2006 audiologist’s report from Sue Brown reflected mild hearing loss in the
right ear and profound loss in the left ear. An unsigned report from Kinston Head and Neck
Physicians and Surgeons indicated that appellant had a long-standing total hearing loss in the left
ear. The report provided a diagnosis of “possible Meniere’s disease with low frequency loss
developing in the right ear.”
By letter dated July 27, 2006, the Office informed appellant that the information
submitted was insufficient to allow a determination as to whether his claim was timely filed.
The Office requested details regarding his employment-related noise exposure and inquired as to
why he waited 38 years to file a claim. In an August 7, 2006 statement, appellant indicated that
he had not filed his claim earlier because he “did not know what to do about it” and
acknowledged that he could not remember if he told his supervisor about his hearing loss.
By decision dated November 28, 2006, the Office denied appellant’s claim as untimely.
On January 3, 2007 appellant requested reconsideration of the November 28, 2006
decision. He submitted copies of personnel and medical documents previously submitted and
considered by the Office. By decision dated January 24, 2007, the Office denied appellant’s
request for reconsideration, finding the evidence submitted to be cumulative and, therefore,
insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
In cases of injury prior to September 7, 1974, the Act provides that a claim for
compensation must be filed within one year of the date that the claimant was aware or reasonably
should have been aware that the condition may have been caused by the employment factors.2
The one-year filing requirement may be waived if the claim is filed within five years and (1) it is
2

Eugene L. Turchin, 48 ECAB 391, 395 (1997).

2

found that such failure was due to circumstances beyond the control of the person claiming
benefits; or (2) that such person has shown sufficient cause or reasons in explanation thereof and
material prejudice to the interest of the United States has not resulted from such failure.3
The test for whether sufficient cause or reason was shown to justify waiver of the oneyear time limitation is whether a claimant prosecuted the claim with that degree of diligence
which an ordinary prudent person would have exercised in protecting his right under the same or
similar circumstances.4 The five-year time limitation is a maximum mandatory period, which
neither the Office nor the Board has the power to waive.5
In addition, for injuries occurring between December 7, 1940 and September 6, 1974,
Office procedures provide that written notice of the injury should be given within 48 hours as
specified in section 8119 of the Act,6 but this requirement will be waived if the employee filed
written notice within one year after the injury or if the immediate superior had actual knowledge
of the injury within 48 hours after the occurrence of the injury.7
Where an employee has sustained a loss of hearing as a result of excessive noise at work
over a period of time, the date of injury is determined to be the date of the last noise exposure
which adversely affected his hearing.8 In an occupational disease claim, the time limitation does
not begin to run until the claimant is aware or reasonably should be aware, of the causal
relationship between his employment and the compensable disability. If exposure to the
implicated employment factors extends beyond the date of such awareness, the time limitation
begins to run on the date of last exposure.9
ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish that his claim was filed within the
applicable time-limitation provisions of the Act. In a case involving a claim for an occupational
illness, the time does not begin to run until claimant is aware or reasonably should have been
aware, of the causal relationship between his employment and the compensable disability.10
When an employee sustains hearing loss due to noise exposure at work over a period of time, the
date of injury is determined to be the date of the last noise exposure which adversely affected his
hearing.11 In the present case, appellant indicated on his Form CA-2 that he realized his claimed
3

Edward Lewis Maslowski, 42 ECAB 839 (1991).

4

Roseanne S. Allexenberg, 47 ECAB 498, 500 (1996).

5

Albert K. Tsutsui, 44 ECAB 1004, 1008 (1993).

6

5 U.S.C. § 8119(b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(b)(1) (March 1993).

8

Solomon R. Stone, 32 ECAB 150 (1980).

9

See Peter S. Elliott, 51 ECAB 627 (2000).

10

William L. Gillard, 33 ECAB 265, 268 (1981).

11

See Solomon R. Stone, supra note 8.

3

condition was caused or aggravated by employment factors on June 25, 1952. However, he
continued working for the employing establishment and was exposed to work-related noise until
May 7, 1968, when he retired. Therefore, the time limitation in this case began to run on
May 7, 1968. Since appellant did not file his claim until June 1, 2005, his claim was not filed
within the one-year period of limitation. Furthermore, appellant is not entitled to waiver of the
one-year filing requirement because his claim was not filed within five years of the claimed
injury; nor has he met the other requirements, as delineated above, for such waiver. The fiveyear time limitation is a maximum, mandatory period which neither the Office nor the Board has
authority to waive.12
For injuries occurring between December 7, 1940 and September 6, 1974, Office
procedure manual indicates that written notice of the injury should be given within 48 hours as
specified in section 8119 of the Act. The procedures further indicate that this requirement may
be waived if the employee files written notice within one year of the injury or if the immediate
superior had actual knowledge of the injury within 48 hours of the injury.13 There is, however,
no evidence that appellant filed written notice within one year of the injury as specified in
section 8119. Moreover, appellant failed to establish that his immediate supervisor had actual
knowledge of the injury within 48 hours after the occurrence of the injury. In fact, he stated that
he could not remember whether or not he notified his supervisor of his hearing loss.
Consequently, appellant has not established that his claim was filed within the applicable timelimitation provisions of the Act.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,14 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,15 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, which sets forth arguments and contains evidence that:
(1) Shows that the Office erroneously applied or interpreted a specific point of
law; or
(2) Advances a relevant legal argument not previously considered by the Office;
or
(3) Constitutes relevant and pertinent new evidence not previously considered by
the Office.

12

Eugene L. Turchin, supra note 2; Albert K. Tsutsui, supra note 5.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.7 (September 1990).

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b).

4

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
the Office without review of the merits of the claim.16
Evidence that repeats or duplicates evidence already in the case record has no evidentiary
value and does not constitute a basis for reopening a case.17
ANALYSIS -- ISSUE 2
Appellant’s January 3, 2007 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted copies of documents
previously received and considered by the Office. As the documents are duplicative, they do not
constitute new evidence not previously considered by the Office.18 Moreover, the documents
submitted are not relevant to the issue decided by the Office in its November 28, 2006 decision,
namely, whether appellant’s claim was timely filed. Therefore, the Office properly determined
that this evidence did not constitute a basis for reopening the case for a merit review under the
third requirement under section 10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant did not establish that his claim was filed within the
applicable time limitation provisions of the Act. The Board further finds that the Office properly
denied appellant’s January 3, 2007 request for reconsideration without conducting a merit review
of the claim.

16

Id.

17

See Helen E. Paglinawan, 51 ECAB 591 (2000).

18

See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 24, 2007 and November 28, 2006 are affirmed.
Issued: August 13, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Renton, WA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1545
Issued: March 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 17, 2011 appellant, through his attorney, filed a timely appeal from an April 25,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed
the termination of his medical and compensation benefits. 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 the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits for his accepted injury effective October 6, 2010.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 24, 2009 appellant, then a 40-year-old aviation safety inspector, was injured
when his government automobile was struck by another vehicle while in the performance of
duty. OWCP accepted his claim for a neck sprain. Appellant stopped work on March 25, 2009
and returned on March 27, 2009.
Appellant was treated in the emergency room on March 24, 2009 by Dr. Todd
Christiansen, a Board-certified emergency room physician, for a neck injury sustained in a workrelated motor vehicle accident. Dr. Christiansen diagnosed cervical strain and contusions.
Cervical spine x-rays showed degenerative changes C3-4 and C4-5 but no fracture or
subluxation. Appellant came under the treatment of Dr. Jeffrey Brown, an osteopath, from
March 27, 2009 to January 27, 2010, for back and neck pain. Dr. Brown diagnosed cervicalgia,
backache, headache and paresthesia. In reports dated June 17, 2009 to January 27, 2010, he
diagnosed musculoneuralgia and numbness in both feet and recommended trigger point
injections. Dr. Brown noted that appellant was able to resume regular duty on March 27, 2009.
Appellant was treated by Dr. Bess Chang, an osteopath and Board-certified neurologist to whom
appellant was referred by Dr. Brown, who performed an electromyogram (EMG) and nerve
conduction studies on February 18, 2010 which revealed mild acute L5-S1 radiculopathy
bilaterally.
On April 14, 2010 Dr. John A. Anson, a Board-certified neurosurgeon, to whom
appellant was referred by Dr. Chang, noted the history of the March 24, 2009 motor vehicle
crash. At that time, appellant did not have any apparent significant injuries but, thereafter
noticed numbness in the bottoms of his feet. He listed an impression of numbness and
dysesthesias along the soles of the feet with minimal back pain and no other radicular symptoms.
Dr. Anson opined that this was consistent with an early localized peripheral neuropathy and not
likely related to appellant’s mild L5-S1 degenerative disease.
Appellant contacted OWCP on June 9, 2010 when his request for authorization of lumbar
spine treatment was not approved. OWCP advised appellant that his only accepted condition
was a neck sprain and that a second opinion would be arranged.
OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon,
for a second opinion. In a June 22, 2010 report, Dr. Swartz noted that examination of the back
revealed good station and gait, limited range of motion of the back, normal lumbar lordotic
curve, minimal tenderness of the lumbosacral region with no tenderness of the cervical spine, full
range of motion of the cervical spine, reflexes were absent in the lower extremities, hypesthesias
over the medial and lateral borders of both feet, negative straight leg raises bilaterally with
normal motor function. He noted an unremarkable examination of appellant’s lumbar and
cervical spine with full range of motion and only minimal tenderness to light touch and no
neurological findings. An MRI scan of the lumbar spine was unremarkable with mild disc
bulging and no nerve root compromise or foraminal stenosis. With regard to the cervical spine,
there was no evidence of record to reflect significant injury or residuals to either the neck or low
back. Dr. Swartz found that appellant had no residuals of the March 24, 2009 accident. He
noted hypesthesias over the medial and lateral borders and plantar surfaces of both feet;

2

however, there was no indication that these findings were related to the motor vehicle accident or
to any straining injuries to the cervical or lumbar spine. Dr. Swartz noted that findings from a
June 4, 2009 EMG performed by Dr. Brown did not specifically diagnose neuropathy in the feet
or radiculopathy and Dr. Chang diagnosed mild L5-S1 radiculopathy bilaterally but did not
address neuropathy in the feet. Dr. Swartz recommended additional electrodiagnostic studies.
On July 20, 2010 appellant underwent an EMG which revealed mild chronic bilateral C5C6 radiculopathy with mild right ulnar nerve entrapment at the wrist. In a supplemental report
dated July 28, 2010, Dr. Swartz advised that appellant sustained a cervical strain as a result of the
motor vehicle accident on March 4, 2009 and had preexisting degenerative disc disease in the
cervical spine. He noted that appellant underwent an EMG which found evidence of chronic
mild bilateral L5-S1 radiculopathy which was not currently active with no evidence of it
clinically. Dr. Swartz noted that appellant sustained a self-limiting soft tissue strain of the
cervical spine related to his work injury which resolved and his current symptoms were
attributable to his preexisting degenerative disease. Appellant had reached maximum medical
improvement on June 22, 2010, was currently working his regular job, full time as an aircraft
mechanic and required no further medical treatment referable to his work injury.
Appellant submitted reports from Dr. Brown dated July 2 to August 6, 2010. Dr. Brown
continued to treat appellant for back discomfort and tingling in his feet. He diagnosed
cervicalgia, backache and musculoneuralgia and recommended osteopathic manipulation.
On August 20, 2010 OWCP issued a notice of proposed termination of compensation
benefits based on Dr. Swartz’s reports.
In a statement dated September 14, 2010, appellant, through his attorney, objected to the
proposed termination and asserted that Dr. Swartz was biased and was mainly hired by
employers. He asserted that appellant continued to have residuals of his work injury. Appellant
submitted an EMG dated June 4, 2009 which revealed lumbar plexopathy without motor deficit.
In a September 7, 2010 report, Dr. Brown noted treating appellant on March 31, 2009 when he
reported symptoms of numbness and tingling of the left lower extremity. He advised that
osteopathic manipulation was successful in reducing pain but the neurological symptoms
persisted. Dr. Brown noted a June 4, 2009 EMG revealed nerve pathology in lumbar segment L5
and S1. He indicated that appellant did not experience paresthesia prior to his work injury, rather
it developed after his work accident.
In an October 6, 2010 decision, OWCP terminated appellant’s compensation benefits
effective that date, finding that Dr. Swartz’s reports represented the weight of the medical
evidence and established that appellant had no continuing residuals of his accepted injuries.
On October 13, 2010 appellant requested a telephonic hearing which was held on
February 7, 2011. He submitted June 4, 2009 and July 20, 2010 EMG’s and reports from
Dr. Brown previously of record. Appellant submitted a magnetic resonance imaging (MRI) scan
of the lumbar spine dated February 17, 2010 revealed a L5-S1 posterior disc bulge and L2-L3
posterolateral disc bulge. Also submitted were reports from Dr. Michael A. Prater, a Boardcertified anesthesiologist, dated October 18, 2010 to January 3, 2011, who noted a history of
appellant’s work injury of March 24, 2009 and diagnosed low back pain, bulging lumbar disc

3

and bilateral lower extremity symptomology. Dr. Prater recommended bilateral L5-S1 selective
nerve root blocks which were performed on December 2, 2010. In a January 3, 2011 report, he
noted that appellant experienced a few days of decreased pain in his back but no change in the
numbness in the bottom of his feet. Dr. Prater noted findings of tenderness of the lumbar spine
and decreased sensation to light touch along the left lateral calf and shin and recommended oral
analgesics.
In a decision dated April 25, 2011, the hearing representative affirmed the October 6,
2010 OWCP decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.3 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, which requires further
medical treatment.4
ANALYSIS
OWCP accepted appellant’s claim for work-related neck sprain. Appellant was released
to work regular duty without restrictions on March 27, 2009 but he continued to receive medical
treatment claiming complaints of lower back pain. OWCP, indicating that the neck sprain was
the only accepted condition, referred appellant for a second opinion evaluation by Dr. Swartz.
In a June 22, 2010 report, Dr. Swartz provided an extensive review of appellant’s medical
history, reported examination findings and diagnosed neck sprain. He found that there were no
clinical findings of any residuals or disability causally related to the accepted employment injury.
Dr. Swartz noted an unremarkable examination of appellant’s lumbar and cervical spine with full
range of motion and only minimal tenderness to light touch and no neurological findings. He
opined that appellant had no residuals of the March 24, 2009 accident. Dr. Swartz noted
hypesthesias over the medial and lateral borders and plantar surfaces of both feet; however, there
was no indication that these findings were related to the motor vehicle accident or to any
straining injuries to the cervical or lumbar spine. He recommended an EMG which was
performed on July 20, 2010 which revealed evidence of mild chronic bilateral C5-C6
radiculopathy with mild right ulnar nerve entrapment at the wrist. In a supplemental report dated
July 28, 2010, Dr. Swartz advised that appellant sustained a cervical strain as a result of the
motor vehicle accident on March 4, 2009 and had preexisting degenerative disc disease in the
2

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

3

Mary A. Lowe, 52 ECAB 223 (2001).

4

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

cervical spine. He noted that appellant had an EMG that showed chronic mild bilateral L5-S1
radiculopathy which was not active. Dr. Swartz found no evidence of radiculopathy clinically as
appellant had no neurological symptoms in the upper extremities and no neurological findings
upon examination. He stated that appellant sustained a self-limiting soft tissue strain of the
cervical spine related to his work injury which resolved and his current symptoms were
attributed to his preexisting degenerative disease. Dr. Swartz advised that appellant reached
maximum medical improvement on June 22, 2010 and required no further treatment. Appellant
was currently working his regular job, full time as an aircraft mechanic. Dr. Swartz found no
basis on which to attribute any continuing symptoms to the accepted neck sprain.
The Board finds that Dr. Swartz’s report’s represents the weight of the medical evidence
and that OWCP properly relied on his reports in terminating appellant’s compensation and
medical benefits on October 6, 2010. Dr. Swartz’s opinion is based on proper factual and
medical history as he reviewed a statement of accepted facts and appellant’s prior medical
treatment and test results. He also related his comprehensive examination findings in support of
his opinion that the accepted work-related condition had resolved. Dr. Swartz indicated that
appellant did not have residuals from the condition of neck sprain and that his current condition
was due to his preexisting degenerative conditions. There is no contemporaneous medical
evidence of equal weight supporting appellant’s claim for continuing disability and medical
residuals. Although appellant asserted, before OWCP, that Dr. Swartz harbored bias against
employees, there is no evidence of record to support that Dr. Swartz had any bias toward
appellant. Instead the record indicates that he conducted a full examination, reviewed the record,
and sought additional testing in arriving at his opinion. Thus, OWCP met its burden of proof to
terminate appellant’s compensation benefits.
Appellant submitted reports from Dr. Brown dated July 2 to August 6, 2010 who
continued to treat appellant for back discomfort and tingling in his feet. He diagnosed
cervicalgia, backache and musculoneuralgia. Similarly, on September 7, 2010 Dr. Brown noted
treating appellant after his accident on March 31, 2009 when he reported symptoms of numbness
and tingling of the left lower extremity. He opined that appellant’s symptoms of paresthesia
occurred after his work accident. However, none of Dr. Brown’s reports specifically provide any
medical reasoning to explain how any continuing condition was causally related to the March 24,
2009 work injury, accepted for a neck sprain, and therefore are of limited probative value.5
Additionally, he related appellant’s current paresthesia to the employment injury but, his only
rationale for doing so was that appellant had no paresthesia prior to the employment injury. The
Board has held that an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury is insufficient, without supporting
rationale, to support a causal relationship.6
Reports from Dr. Prater dated October 18, 2010 to January 3, 2011 diagnosed low back
pain, bulging lumbar disc and bilateral lower extremity symptomology. However, Dr. Prater did
5

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

6

Kimper Lee, 45 ECAB 565 (1994). Furthermore, for conditions not accepted by OWCP as being employment
related, the claimant bears the burden of proof to establish that the condition is causally related to the employment
injury. See Asaramo, supra note 5.

5

not address whether any continuing residuals or disability was causally related to the accepted
injury.7 Likewise, various reports of diagnostic testing do not provide an opinion on whether
appellant had continuing residuals causally related to the accepted injury. Appellant submitted
no other current medical evidence supporting that his work-related conditions had not resolved.
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.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate benefits effective
October 6, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2011 is affirmed.
Issued: March 2, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

7

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, COUNTRY LAKES
POST OFFICE, Miami, FL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1286
Issued: September 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 7, 2013 appellant, through his attorney, filed a timely appeal from a January 31,
2013 merit decision of the Office of Workers’ Compensation Programs. 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.
ISSUE
The issue is whether appellant has established that he was totally disabled from May 9 to
June 1, 2012 due to his August 20, 2011 employment injury.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
OWCP accepted that on August 20, 2011 appellant, then a 57-year-old distribution clerk,
sustained a neck sprain due to a fall while in the performance of duty.
1

5 U.S.C. § 8101 et seq.

On June 5, 2012 appellant filed a claim (Form CA-7) for compensation for 136 hours of
leave without pay from May 9 to June 1, 2012.
In an April 23, 2012 medical report, Dr. Pedro J. Carvajal, a Board-certified orthopedic
surgeon, obtained a history that appellant had occasional intermittent pain of both shoulders over
the years. Approximately, six weeks ago appellant tripped and fell injuring both shoulders with
the right being worse than the left. He developed significant weakness of the right shoulder with
resultant pain. Dr. Carvajal reviewed a magnetic resonance imaging (MRI) scan of the right
shoulder and listed findings on physical examination. He advised that appellant had a rotator
cuff tear of the right shoulder, which was much more symptomatic than the left shoulder, which
had better strength and no significant pain with rotation and 5-/5 rotator cuff strength.
Dr. Carvajal discussed arthroscopic surgery to treat the diagnosed right shoulder condition.
In an April 25, 2012 report, Dr. Aizik L. Wolf, a Board-certified neurosurgeon, noted
appellant’s complaints of decreased sensation in his right hand along the C6-7 distribution,
which he attributed to a fall at work on August 22, 2011. He obtained a history of appellant’s
medical treatment. Dr. Wolf listed findings on physical, motor, sensory examination and
diagnostic testing. He diagnosed cervical spondylosis for which appellant preferred to treat with
surgery. In a May 15, 2012 preoperative clearance form, Dr. Wolf indicated that appellant was
scheduled for an anterior cervical microdiscectomy and a fusion at C5-6 and C6-7 on
May 18, 2012.
In a May 29, 2012 report, Dr. David M. Scholl, a Board-certified internist, advised that
appellant had been under his care for chronic neck and bilateral shoulder pain, the right shoulder
was worse than the left, which occurred after an August 22, 2011 work injury. He advised that
appellant was currently unable to work as a result of his shoulder pain.
By letter dated June 6, 2012, OWCP advised appellant that the evidence submitted was
insufficient to establish that he was disabled during the claimed period due to his accepted work
injury. It requested that he submit medical evidence, including a rationalized medical opinion
from an attending physician explaining the causal relationship between his current right shoulder
and cervical conditions and accepted injury.
A June 5, 2012 duty status report contained an illegible signature and stated that appellant
was unable to work due to his shoulder and neck pain.
In an April 2, 2012 report, Dr. Germaine Rodriguez, a Board-certified radiologist,
advised that an MRI scan of appellant’s cervical spine demonstrated a broad-based bulging disc
at C3-4 and C7-T1 and central disc herniation at C4-5, C5-6 and C6-7. There was no stenosis of
the spinal canal. There was stenosis of the neural foramina at C4-5, C5-6 and C6-7. On
April 11, 2012 Dr. Rodriguez performed a MRI scan of appellant’s lumbar spine and bilateral
shoulders. The lumbar MRI scan revealed a broad based bulging disc at L1-2, L3-4, L4-5 and
L5-S1. There was no stenosis of the spinal canal. There was stenosis of the neural foramina.
The MRI scans of the right and left shoulder showed a complete tear of the distal supraspinatus
tendon at its insertion site with retraction of the tendon. The right shoulder also had small joint
effusion and subacromial-subdeltoid bursitis and mild hypertrophic change of the
acromioclavicular joint. The left shoulder also had subacromial-subdeltoid bursitis and no joint

2

effusion. On May 15, 2012 Dr. Rodriguez reported that an x-ray of appellant’s chest showed no
acute cardiopulmonary process.
In a July 31, 2012 decision, OWCP denied appellant’s claim for compensation from
May 9 through June 1, 2012, finding that the medical evidence did not establish that he was
totally disabled during the claimed period due to his accepted August 20, 2011 employment
injury.
By letter dated August 14, 2012, appellant, through his attorney, requested a telephone
hearing with an OWCP hearing representative.
In a November 6, 2011 report, Dr. Scholl obtained a history of the August 20, 2011
employment injury. He also obtained a history of appellant’s neck pain that resulted from a
military accident that occurred over 20 years ago, but stated that appellant was able to work and
perform his daily activities of living without any problems prior to his work accident. Dr. Scholl
reviewed the April 2012 MRI scans of the bilateral shoulders and cervical spine. He advised that
appellant was unable to work from May through June 2012 due to the severity and intensity of
chronic pain in his shoulders, neck and low back. An attempt to return to work with his pain
would have made appellant’s work environment dangerous for others. Dr. Scholl stated that
appellant experienced paralysis in his right arm and hand as a result of performing his normal job
duties after the work incident. The above-mentioned problems had been chronically aggravated
by the performance of his normal job duties soon after his injury. Dr. Scholl concluded that
appellant’s injuries were not strains and they did not improve after six weeks.
In reports dated July 24 and August 27, 2012, Dr. Wolf noted that appellant was doing
well, but he still had muscular stiffness on the right side of his neck and mild neck spasms. He
listed findings on physical, neurologic, motor and sensory examination and diagnostic testing.
Dr. Wolf diagnosed cervical spondylosis at the C5-6 and C6-7 and musculoskeletal pain.
In a January 31, 2013 decision, an OWCP hearing representative affirmed the July 31,
2012 decision. She found that the medical evidence was not sufficiently rationalized to establish
appellant’s entitlement to wage-loss compensation for total disability from May 9 through
June 1, 2012 causally related to his accepted employment injury.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.2 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.3

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).

3

Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.5 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.6
The Board, however, will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.7 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.8
ANALYSIS
OWCP accepted that appellant sustained a cervical strain on August 20, 2011 while
working as a distribution clerk. Appellant claimed compensation for disability from May 9 to
June 1, 2012. OWCP denied his claim on the grounds that the evidence was insufficient to
establish that the claimed disability was due to his accepted cervical injury. Appellant has the
burden of establishing by the weight of the substantial, reliable and probative evidence, a causal
relationship between his claimed disability and the accepted condition.9 The Board finds that he
did not submit sufficient medical evidence to establish employment-related disability for the
period claimed due to his accepted injury.
Dr. Scholl’s May 29, 2012 report found that appellant developed chronic neck and
bilateral shoulder pain following his August 22, 2011 work injury. He opined that appellant was
unable to work due to his bilateral shoulder pain. Dr. Scholl provided an incorrect date for the
accepted employment injury. As stated, medical reports must be based on a complete and
accurate factual and medical background;10 medical opinions based on an incomplete or
inaccurate history are of diminished probative value.11 Furthermore, Dr. Scholl has not provided
a medical diagnosis other than neck and bilateral shoulder pain. The Board has consistently held
that pain is a symptom, not a compensable medical diagnosis.12 Dr. Scholl did not explain how
appellant’s condition and disability were caused by the accepted August 20, 2011 employment

4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

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

8

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, supra note 4.

9

Alfredo Rodriguez, 47 ECAB 437 (1996).

10

Leslie C. Moore, supra note 6.

11

Douglas M. McQuaid, 52 ECAB 382 (2001).

12

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

4

injury.13 Similarly, in his November 6, 2011 report, Dr. Scholl opined that appellant was unable
to work from May to June 2012 due to severe, intense and chronic bilateral shoulder, neck and
low back pain, but he did not provide a rationalized medical opinion with respect to the causal
relationship between the diagnosed condition and disability and the August 20, 2011 work
injury. Instead, he attributes appellant’s disability aggravation of his shoulders, neck and low
back pain, to his regular work duties that he performed following the accepted injury, which
would constitute a new work factor. Dr. Scholl also failed to provide sufficient medical rationale
explaining how residuals of the accepted cervical strain were disabling.14 For the stated reasons,
the Board finds that his reports are insufficient to establish appellant’s claim.
Dr. Carvajal’s April 23, 2012 report found that appellant had a rotator cuff tear of the
right shoulder that required arthroscopic surgery. He listed findings on physical examination and
reviewed diagnostic test results. Dr. Carvajal did not reference the August 20, 2011 employment
injury or provide a medical opinion addressing how the accepted injury caused appellant’s right
shoulder condition and claimed disability from May 9 to June 1, 2012. Rather he related the
condition to a fall in six weeks prior in early March 2012. The Board has held that a physician’s
opinion, which does not address causal relationship, is of diminished probative value.15 The
Board finds, therefore, that Dr. Carvajal’s report is insufficient to establish appellant’s claim.
Likewise, the reports and preoperative clearance form of Dr. Wolf, which found that
appellant had cervical spondylosis at C5-6 and C6-7 that required an anterior cervical
microdiscectomy and fusion and the diagnostic test results of Dr. Rodriguez, which addressed
appellant’s cervical, lumbar, bilateral shoulder and chest conditions are insufficient to establish
appellant’s claim. Neither physician provided a medical opinion addressing whether the
diagnosed conditions and total disability during the claimed period were caused by the accepted
employment injury.16
The June 5, 2012 duty status report which contained an illegible signature has no
probative value in establishing that appellant has any employment-related disability during the
claimed period, as it is not clear whether a physician as defined under FECA prepared the report.
It is well established that medical evidence lacking proper identification is of no probative
medical value.17
Appellant failed to submit rationalized medical evidence establishing that his disability
from May 9 to June 1, 2012 resulted from residuals of his accepted employment-related cervical
condition.

13

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
14

Dean E. Pierce, 40 ECAB 1249 (1989).

15

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
16

Id.

17

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).

5

On appeal, appellant’s attorney contends that OWCP’s January 31, 2013 decision is
contrary to fact and law. For reasons stated above, the Board finds that appellant did not submit
sufficient evidence establishing his entitlement to disability compensation for the claimed period.
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.
CONCLUSION
The Board finds that appellant has failed to establish that he was totally disabled from
May 9 to June 1, 2012 due to his August 20, 2011 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
DEPARTMENT OF THE ARMY, MILITARY
TRAFFIC MANAGEMENT COMPANY
OAKLAND ARMY BASE, Oakland, CA,
Employer
__________________________________________

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Appearances:
Barbara Osborne, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1165
Issued: April 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 18, 2020 appellant, through her representative, filed a timely appeal from a May 7,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

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
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits,
effective May 7, 2020, for failure to complete a Form EN1032 as requested.
FACTUAL HISTORY
On May 8, 1985 appellant, then a 61-year-old lead accounting technician, filed an
occupational disease claim (Form CA-2) alleging stress causally related to factors of her federal
employment. She noted that she first became aware of her condition and its relationship to her
federal employment on March 1, 1984. OWCP accepted the claim for atypical anxiety disorder.
Appellant received wage-loss compensation on the periodic rolls as of June 16, 2002.
As a matter of course, OWCP periodically requested that appellant submit financial
disclosure statements (Form CA-1032) which solicited information about her employment,
volunteer work, dependent(s) status, receipt of other federal benefits and/or payments, and thirdparty settlements.
OWCP received a letter dated June 25, 2019 from appellant’s representative wherein she
related that she was appellant’s daughter and that appellant was now living with her in Foster City,
California. She enclosed a limited durable power of attorney and an advanced healthcare directive
appointing her as appellant’s agent.
On September 9, 2019 OWCP forwarded a Form CA-1032 to appellant and notified her
that she was required to fully answer all questions on the enclosed Form CA-1032 and return it
within 30 days, or her benefits would be suspended. It mailed the notice to appellant’s last known
address in Foster City, California. No response was received.
By letter dated February 20, 2020, OWCP notified appellant that it had not received the
completed Form CA-1032 and that she had 15 additional days to submit the completed form.
Appellant did not respond within the allotted time.
By decision dated May 7, 2020, OWCP suspended appellant’s compensation benefits,
effective May 7, 2020, for failing to complete the Form CA-1032 as requested. It advised that, if
appellant were to complete and return the form, her compensation benefits would be restored
retroactively to the date they were suspended.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the May 7, 2020 decision, OWCP received additional evidence. Appellant also
submitted additional evidence on appeal. 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

LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.4
Under section 10.528 of OWCP’s implementing regulations, an employee in receipt of
compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work which the employee has performed for the prior 15 months.5 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension, if the employee
remains entitled to compensation.6
ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 7, 2020, for failure to complete the Form CA-1032 as requested.
On September 9, 2019 OWCP provided appellant with a Form CA-1032 and advised her
that, if she did not complete and return it within 30 days, her benefits would be suspended. On
February 20, 2020 appellant was allotted an additional 15 days to comply. The record reflects that
OWCP’s letter was properly sent to appellant’s last known address of record and there is no
indication that it was returned as undeliverable.7 Under the mailbox rule, a document mailed in
the ordinary course of the sender’s business practices to the addressee’s last known address of
record is presumed to be received by the addressee.8
Appellant was receiving wage-loss compensation and she was therefore required to
complete a Form CA-1032. The record indicates that appellant failed to timely submit the Form
CA-1032 within 30 days of OWCP’s request, and also failed to file the form within the additional
15 days allowed by OWCP. Thus, the Board finds that OWCP properly suspended appellant’s
compensation benefits, effective May 7, 2020, pursuant to 20 C.F.R. § 10.528.

4

5 U.S.C. § 8106(b).

5

20 C.F.R. § 10.528. See R.S., Docket No. 20-0580 (issued September 14, 2020); see also H.B., Docket No.
19-0405 (issued June 26, 2019); M.S., Docket No. 18-1107 (issued December 28, 2018); C.C., Docket No. 17-0043
(issued June 15, 2018); A.H., Docket No. 15-0241 (issued April 3, 2015).
6

Id. at § 10.525.

7

See H.B., supra note 5; J.J., Docket No. 13-1067 (issued September 20, 2013); Kenneth E. Harris, 54 ECAB 502,
505 (2003).
8

Id.

3

CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 7, 2020, for failure to complete a Form CA-1032 as requested.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2020 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, CARDISS COLLINS
PROCESSING & DISTRIBUTION CENTER,
Chicago, IL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-2257
Issued: March 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 4, 2007 appellant filed a timely appeal from a June 14, 2007 decision of
the Office of Workers’ Compensation Programs, granting him a schedule award for facial
disfigurement and an August 2, 2007 nonmerit decision denying reconsideration. Pursuant to
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 appellant is entitled to more than the maximum allowable of
$3,500.00, for permanent facial disfigurement; and (2) whether the Office properly denied
further review of the merits of his claim. On appeal, appellant contends that the schedule award
is not adequate because it did not account for his problems with his right eye, teeth, facial
movement and skin.

FACTUAL HISTORY
On August 3, 2005 appellant, then a 49-year-old tractor trailer operator, was injured when
he was struck in the face by a service strap. The Office accepted his claim for a facial laceration
and closed bone fracture. On November 23, 2005 appellant underwent surgery to reduce the
appearance of a wide and indented scar on his right cheek.
On June 22, 2006 appellant requested a schedule award. In response, the Office notified
him that he might be eligible for a schedule award of up to $3,500.00 for facial disfigurement. It
provided appellant with the appropriate application and a medical form for his physician to
complete.
On July 11, 2006 appellant submitted a disfigurement award application, including
photographs of his face. He stated that the normal functioning of his mouth was impaired
because it was paralyzed on the right side. Appellant stated that there was also some cosmetic
damage. On July 11, 2006 Dr. Hillary Johnson, an internist, stated that appellant’s facial
disfigurement would not improve unless he was evaluated and treated by a plastic surgeon. She
stated that the laceration to the right cheek had healed asymmetrically and that plastic surgery
might help equalize the tissue. Dr. Johnson stated that appellant’s right zeugmatic area had
partially collapsed and contained a horizontal scar measuring one and a half inches from the
infra-orbital position. She noted that he also had a decreased right nasolabial fold with partial
paralysis on the right side of the face.
On August 2, 2006 the Office provided appellant’s file to the Office medical adviser for
an opinion on his entitlement to a schedule award. On August 10, 2006 Dr. Benjamin Crane
reviewed the medical record and noted that appellant reported mild numbness around the scar.
He stated that the date of maximum medical improvement was July 11, 2006. Dr. Crane opined
that, under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed., 2001), appellant’s facial disorder and disfigurement would be rated as three
percent whole person impairment.
In a memorandum dated June 6, 2007, the Office determined that appellant was entitled
to the maximum award for facial disfigurement based on the evidence of record. The district
director concurred in this finding.
By decision dated June 14, 2007, the Office granted appellant a schedule award for facial
disfigurement in the amount of $3,500.00. It noted that appellant was still entitled to medical
care for his employment injury.
On July 25, 2007 appellant requested reconsideration. He did not submit any additional
evidence or statements.
By decision dated August 2, 2007, the Office denied reconsideration of the merits of
appellant’s claim on the grounds that he had submitted no relevant new evidence and presented
no new legal contentions.

2

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act1 provides in section 8107(c)(21) that, “[f]or
serious disfigurement of the face, head or neck of a character likely to handicap an individual in
securing or maintaining employment, proper and equitable compensation not to exceed
$3,500.00 shall be awarded in addition to any other compensation payable under this schedule.”2
In a case involving facial disfigurement, the question before the Board is whether the amount
awarded by the Office was based upon sound and considered judgment and was proper and
equitable under the circumstances as provided by section 8107(c)(21) of the Act.3 As the only
limitation on the Office’s authority is reasonableness, abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or actions that are
contrary to both logic and probable deduction from established facts.4 The Board will not
interfere with or set aside a disfigurement determination of the Office unless it is clearly in
error.5
Office’s procedures require that the Office medical adviser review disfigurement claims
and evaluate the employee’s disfigurement. The Office medical adviser will determine if
maximum medical improvement has been reached and review photographs submitted along with
medical evidence of record. The concurrence of the district director or the assistant district
director must be obtained.6
A schedule award is not payable for the loss or loss of use, of a member or function of the
body not specifically listed in the Act and its implementing regulation.7
ANALYSIS -- ISSUE 1
The Office granted appellant a schedule award for his permanent facial disfigurement in
the maximum amount of $3,500.00. The issue to be determined is whether appellant is entitled
to an additional schedule award.
The Board finds that the Office properly followed its procedures in determining that
appellant was entitled to the maximum award for facial disfigurement. Dr. Crane, the district
medical adviser, reviewed appellant’s file, including his photographs and made medical findings.
He determined that appellant had reached maximum medical improvement by July 11, 2006.
The Office determined that Dr. Crane’s opinion entitled appellant to a schedule award of
1

5 U.S.C. § 8101 et seq.

2

5 U.S.C. § 8107(c)(21).

3

Hylan Shelton, 57 ECAB __ (Docket No. 06-462, issued June 8, 2006).

4

Daniel J. Perea, 42 ECAB 214, 221 (1990).

5

Matthew Leonka, 38 ECAB 119, 121 (1986).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (November 1998).

7

Veronica Williams, 56 ECAB 367 (2005).

3

$3,500.00. The Office’s district director concurred with the Office’s recommendation that
appellant be awarded $3,500.00, which represents the maximum award allowable under the
schedule. The Office followed proper procedures and did not abuse its discretion in issuing a
schedule award in the maximum allowable amount for appellant’s facial disfigurement.
On appeal, appellant contends that the schedule award does not adequately compensate
him for all the conditions caused by his accepted injury. The Board notes that the terms of the
Act are specific as to the method and amount of payment of compensation for facial
disfigurement; neither the Office nor the Board has the authority to enlarge the terms of the Act
or to make an award of benefits under any terms other than those specified in the statute.8
Appellant has received the maximum award available for facial disfigurement and is not entitled
to any additional sum for this impairment. Further, appellant has not established that he
sustained permanent impairment to any other member, function or organ of the body specifically
listed in the Act or the implementing federal regulation.9 Therefore, the Board finds that
appellant has not established that he is entitled to a greater schedule award.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act, the Office has the discretion to reopen a case for
review on the merits.10 Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations
provides that the application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that: (i) shows that the Office erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by the Office; or (iii) constitutes relevant and pertinent new evidence not previously
considered by the Office.11 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.12
ANALYSIS -- ISSUE 2
On July 25, 2007 appellant requested reconsideration. However, he did not submit
anything along with his request. Because appellant did not raise new arguments or present new
8

See, e.g., Wayne B. Kovacs (Cynthia A. Kovacs), 55 ECAB 133, 137 (2003) (the Board found that it could not
change compensation requirements related to death benefits for minor dependents).
9

The schedule award provision of the Act identifies “members” as the arm, leg, hand, foot, thumb, finger and toe;
“functions” as loss of hearing and loss of vision; and “organs” to include the eye. 5 U.S.C. § 8107. The Act also
provides for payment of compensation for permanent loss of other important external or internal organ of the body
as determined by the Secretary of Labor. 5 U.S.C. § 8107(c)(22). Under this authority, the Secretary of Labor has
added the breast, kidney, larynx, lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina to the schedule.
20 C.F.R. § 10.404(5).
10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(2).

12

20 C.F.R. § 10.608(b).

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evidence that the Office erroneously applied or interpreted a specific point of law; advance any
relevant legal arguments not previously considered by the Office; or present any relevant and
pertinent new evidence, he is not entitled to further review of the merits of his claim under any of
the criteria of section 10.606(b)(2).13
As appellant did not meet any of the regulatory requirements for review of the merits of
his claim, the Office properly denied his July 25, 2007 request for reconsideration.
CONCLUSION
The Board finds that appellant was entitled to no more than the $3,500.00 awarded by the
Office for his permanent facial disfigurement, which is the maximum amount allowable under
the schedule. Additionally, the Board finds that the Office properly denied further review of the
merits of appellant’s claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 2 and June 14, 2007 are affirmed.
Issued: March 5, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

13

20 C.F.R. § 10.606(b)(2).

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