United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hughsonville, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-384
Issued: June 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 6, 2013 appellant, through her attorney, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) merit decision dated October 31, 2013
denying her recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established a recurrence of total disability beginning
July 23, 2012 causally related to her July 11, 2012 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. In an April 22, 2013 decision, the Board
affirmed an October 24, 2012 OWCP decision which found that appellant failed to establish a
recurrence of disability on or after July 23, 2012 causally related to her July 11, 2012
employment injury.1 OWCP found that the medical evidence of record was unsupported by
1

Docket No. 13-326 (issued April 22, 2013).

sufficient medical rationale or reasoning which explained why the claimed disability beginning
July 23, 2012 was caused or aggravated by the accepted neck sprain. The Board noted that it did
not accept that her torticollis condition or chronic spinal pain was causally related to the
July 11, 2012 work injury. The facts of the previous Board decision are incorporated herein by
reference.2
In an August 19, 2013 letter, appellant, through her attorney, requested reconsideration.
In her reconsideration request, she contended that OWCP’s characterization of her condition as
simple neck sprain minimized the degree and severity of her work-related condition and resulted
in the denial of the recurrence of symptoms of a condition far more serious than that originally
accepted (i.e., torticollis). Appellant stated that, from the time of the original injury through
July 23, 2012, she experienced progressively worsening pain in the neck, shoulders and lower
back such that she could not continue working. Evidence received in support of her
reconsideration request included magnetic resonance imaging (MRI) scans of the cervical spine
dated October 13, 2012 and April 22, 2013 and a July 9, 2013 report from Dr. Riccardo J.
Esposito, a Board-certified family practitioner.
In his July 9, 2013 report, Dr. Esposito provided a history of the July 11, 2012 work
injury. He stated that his initial examination and diagnosis was cervical strain with left upper
extremity spasm and appellant was given off-work notes, muscle relaxers and pain medicine and
referred to physical therapy. When appellant was next seen on July 27, 2012, Dr. Esposito noted
that she stated that she was unable to get into physical therapy and that her condition had
worsened and she could not turn her head left more than 10 degrees from midline without
significant pain and spasm and that her pain now seemed to go down the back of her spine as
well as her left arm and neck. He stated that the examination was consistent with more spasm
and increased pain with less movement than the initial examination. Dr. Esposito opined that
this worsening of appellant’s condition noted on July 27, 2012 was directly related to the initial
injury of July 11, 2012. He noted her complaints and symptoms and his clinical impressions on
follow-up visits from August 2, 2012 through June 26, 2013, noting that her examination was
unchanged. Dr. Esposito stated “in summary [appellant] suffered a workers’ compensation
injury on July 11, 2012, which recurred on July 23, 2012 causing her not to be able to work until
the present time. In my opinion these injuries are related and to this point have not improved
with multiple conservative treatments and a trigger point injection.” Dr. Esposito noted that
appellant continues to be followed for what appears to be a “permanent” injury that has caused
her not to work because of her continued neck and back pain and the particular pattern of her
pain down her left arm causing parenthesis, weakness and secondary insomnia. He opined that
she has reached maximum medical improvement and cannot work in any capacity.
Evidence of record received prior to and subsequent to the request for reconsideration
included: November 8, 2012 nerve conduction velocity (NCV) and electromyogram (EMG)
2

On July 11, 2012 appellant, then a 46-year-old officer-in-charge, acting postmaster, filed a traumatic injury
claim for neck and left shoulder pain from opening a business window. She did not immediately stop work. OWCP
accepted the claim for neck sprain and paid appropriate benefits. Appellant stopped work on July 23, 2012 and filed
a recurrence of disability claim commencing July 23, 2012. She was advised by OWCP, in its September 5, 2012
acceptance letter and its September 5, 2012 letter regarding her recurrence claim, of the type of medical evidence
needed to support her claim as to how the July 11, 2012 employment incident caused or aggravated torticollis.

2

studies and results; April 22, 2013 MRI scan of the cervical spine; June 12, 2013 diagnostic
testing; an April 22, 2013 report from Dr. Samant Virk3 diagnosing neck pain, cervical
radiculopathy and cervical spondylosis along with operative reports of cervical translaminar
epidural steroid injections at C6-7 level; a May 6, 2013 report from a nurse practitioner signed
by Dr. Richard Dentico, a Board-certified physiatrist, containing an impression of chronic neck
pain, bilateral shoulder trapezius pain, cervical spondylosis and likely myofascial pain syndrome;
a June 10, 2013 report from a nurse practitioner; and a fitness-for-duty note dated
August 30, 2013.
Additional evidence from Dr. Esposito included progress reports and out-of-work notes
from April 22 through September 27, 2013 indicating that appellant was experiencing increased
pain; and a July 14, 2013 work capacity evaluation. In a July 11, 2013 attending physician’s
report, Dr. Esposito opined that appellant’s C5-6 herniated nucleus pulposus with radicular pain
and decreased range of motion was caused by the work injury as she had no prior problems
before the accident.
By decision dated October 31, 2013, OWCP denied modification of its prior decision.
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 resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness.4
An employee who claims a recurrence of disability due to an accepted employment injury
has the burden of proof to establish by the weight of substantial, reliable and probative evidence
that the disability for which he or she claims compensation is causally related to the accepted
injury. This burden requires that an employee furnish medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical reasoning.5 Where no such rationale is present, the medical evidence is of diminished
probative value.6 While the opinion of a physician supporting causal relationship need not be
one of absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty.7
The term disability as used in FECA means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.8 For each period
3

Dr. Virk’s credentials are not of record.

4

J.F., 58 ECAB 124 (2006); 20 C.F.R. § 10.5(x).

5

Ronald A. Eldridge, 53 ECAB 218 (2001).

6

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Robert H. St. Onge, 43 ECAB 1169 (1992).

7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Paul E. Thams, 56 ECAB 503 (2005).

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of disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.9 Whether a particular injury caused an
employee disability for employment is a medical issue which must be resolved by competent
medical evidence.10 The fact that a condition manifests itself during a period of employment
does not raise an inference that there is a causal relationship between the two.11
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.13 Appellant’s burden of proving that she was disabled on
particular dates requires that she furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with medical reasoning.14
Where no such rationale is present, the medical evidence is of diminished probative value.15
ANALYSIS
OWCP accepted that appellant sustained a neck strain in the performance of duty on
July 11, 2012. It did not accept that her torticollis condition or chronic spinal pain was causally
related to the July 11, 2012 employment incident. Appellant stopped work on July 23, 2012 and
claimed a recurrence of total disability due to the accepted injury on July 11, 2012.
The Board finds that appellant has not submitted medical evidence that is sufficient to
establish a recurrence of disability related to her accepted injury of July 11, 2012. The Board’s
previous decision found that the evidence of record was not sufficient to establish a recurrence.16
Appellant submitted additional reports by Dr. Esposito. In a July 11, 2013 attending physician’s
report, Dr. Esposito opined that her C5-6 herniated nucleus pulposus with radicular pain and
decreased range of motion was caused by the work injury as she had no prior problems before
the accident. The Board has held that the mere fact that appellant’s symptoms arise during a
period of employment or produce symptoms revealing an underlying condition does not establish
9

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

10

G.T., 59 ECAB 447 (2008); Gary J. Watling, 52 ECAB 278 (2001).

11

D.I., 59 ECAB 158 (2007).

12

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

13

S.F., 59 ECAB 525 (2008).

14

Ronald A. Eldridge, 53 ECAB 218 (2001).

15

Mary A. Ceglia, 55 ECAB 626 (2004).

16

See supra note 1.

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a causal relationship between her condition and her employment factors.17 Dr. Esposito did not
explain how a herniated disc developed due to appellant’s employment factors or the
July 11, 2012 work incident. Furthermore, it is well established that an opinion that a condition
is causally related to federal employment because the employee previously was asymptomatic is
insufficient, without supporting medical rationale, to establish causal relationship.18 Dr. Esposito
did not provide an adequate explanation as to how specific job duties contributed to a diagnosed
condition. The Board further notes that the case was accepted for neck strain, not herniated disc
at C5-6. Appellant has the burden of proof to establish causal relationship between the
conditions not accepted by OWCP and the July 11, 2012 employment injury.19
In his July 9, 2013 report, Dr. Esposito opined that the worsening of appellant’s condition
on July 27, 2012 was directly related to the July 11, 2012 employment injury. He further stated
that the recurrence on July 23, 2012 caused her not to be able to work until the present time.
However, Dr. Esposito failed to explain with sound medical reasoning and objective tests how
disability beginning July 23, 2012 was connected to the July 11, 2012 injury. His progress
reports and out-of-work notes from April 22 through September 27, 2013 just indicate that
appellant was experiencing increased pain. Pain, however, is a symptom, not a condition.
Dr. Esposito did not address recurrence of disability beginning July 23, 2012 and thus his reports
are of limited probative value on the matter.
The April 22, 2013 report from Dr. Virk diagnosing neck pain, cervical radiculopathy and
cervical spondylosis and the May 6, 2013 report from Dr. Dentico, providing impressions of
chronic neck pain, bilateral shoulder trapezius pain, cervical spondylosis and myofascial pain
syndrome, fail to address whether the July 11, 2012 employment injury caused or aggravated the
diagnosed conditions. Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value.20 As previously noted, OWCP accepted
only a neck strain in this case. Appellant has the burden of proof to establish causal relationship
between the conditions not accepted by OWCP and the July 11, 2012 employment injury.21
Nurse practitioner reports of record do not constitute probative medical evidence, as
nurse practitioners do not qualify as physicians under FECA.22 The diagnostic testing of record,
which do not contain an opinion as to the cause of appellant’s condition, also do not address
recurrence of disability and thus, offer, limited probative value on the matter.23
17

P.G., Docket No. 12-905 (issued December 12, 2012); see also Richard B. Cissel, 32 ECAB 1910, 1917
(1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).
18

Michael S. Mina, 57 ECAB 379 (2006); Kimper Lee, 45 ECAB 565 (1994); Thomas D. Petrylak, 39 ECAB
276 (1987).
19

See JaJa K. Asaramo, 55 ECAB 104 (2004).

20

Michael E. Smith, 50 ECAB 313 (1999).

21

See supra note 18.

22

5 U.S.C. § 8101(2).

23

See Mary E. Marshall, 56 ECAB 420 (2005).

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In summary, the medical evidence of record is unsupported by rationalized medical
evidence which demonstrates that the claimed recurrence was caused, precipitated, accelerated or
aggravated by the accepted injury or which explains the nature of relationship between
appellant’s current conditions and her accepted injury.24
On appeal, appellant contends that her July 11, 2012 injury intensified until she lost
almost full mobility of her neck. She argues that the factual and medical basis of her recurrence
has been established. However, for the reasons set forth above, appellant has not established
either the claimed recurrence or that her current conditions are due to her accepted injury.
Appellant may submit new evidence or argument as part of a formal 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 failed to establish a recurrence of disability on or after
July 23, 2012 causally related to her July 11, 2012 employment injury.

24

A.M., Docket No. 09-1895 (issued April 23, 2010) (when a claimant stops work for reasons unrelated to the
accepted employment injury, there is no disability within the meaning of FECA).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 31, 2013 is affirmed.
Issued: June 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 10-576
Issued: September 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 28, 2009 appellant timely appealed the November 25, 2009 merit decision
of the Office of Workers’ Compensation Programs, which affirmed the termination of her wageloss compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective July 7, 2009.
FACTUAL HISTORY
Appellant, a 50-year-old mail handler, has an accepted traumatic injury claim for lumbar
strain, which arose on April 29, 2007.1 She received wage-loss compensation. Appellant
returned to work in a full-time, limited-duty capacity. She sought to have her claim expanded to
1

Appellant was attempting to connect a wire container to a mule when she strained her lower back.

include L4-5 disc herniation as an accepted condition. Appellant also requested medical
authorization for a right hemilaminectomy at L4-5. By decision dated October 16, 2008, the
Office denied the disc herniation and request for surgery.2 Appellant did not appeal the
October 16, 2008 decision.
Dr. Tae M. Shin, a treating physician, examined appellant on September 17, 2008.3 He
noted in an October 2, 2008 report that appellant was still complaining of radicular right leg pain
from the buttock and thigh to the ankle level. Dr. Shin also noted that an August 29, 2008
lumbar magnetic resonance imaging (MRI) scan showed that appellant’s L4-5 disc bulge was
much improved. In comparison to her June 7, 2007 lumbar MRI scan, which showed
impingement at the L4-5 level, the latest MRI scan showed no significant evidence of nerve
impingement. Appellant was still symptomatic with regard to radiating pain from her right
buttock and thigh to her ankle. Dr. Shin diagnosed right radiculopathy, rule out neuropathy. He
recommended a lower extremity electromyography (EMG) and nerve conduction study (NCS) to
rule out neuropathy. Dr. Shin also indicated that, because the recent MRI scan did not reveal
evidence of nerve impingement, appellant’s herniated disc had resolved to a degree and surgical
intervention was not required.
The EMG/NCS studies Dr. Shin recommended were administered on December 16, 2008
and revealed “[n]o electrodiagnostic evidence of lumbar radiculopathy, bilaterally.”
On January 7, 2009 appellant continued to complain of low back pain. Dr. Shin reviewed
the recent lumbar MRI scan results as well as the December 16, 2008 electrodiagnostic studies.
He diagnosed discogenic low back pain at L4-5. Dr. Shin advised that appellant was permanent
and stationary and he imposed a 20-pound lifting restriction.4 He advised that her current
pathology was industrial in nature and arose out of her employment injury.
On February 19, 2009 the Office informed Dr. Shin that the only accepted work-related
condition was low back strain. It further advised that appellant’s request to expand the claim to
include L4-5 herniated disc had been denied on October 16, 2008. Dr. Shin was asked to submit
a report addressing whether she continued to have objective residuals of her April 29, 2007
lumbar strain. The Office also inquired as to whether appellant’s current restrictions were due to
her accepted lumbar strain or the nonindustrial herniated disc.
Dr. Shin examined appellant on March 4, 2009. On March 20, 2009 he noted that
objective findings on physical examination were not evident, but back pain was noted. Dr. Shin
stated that appellant’s current symptoms were related to discogenic back pain and that her

2

The Office based its decision on the July 29 and September 8, 2008 reports of Dr. Kenneth R. Sabbag, a Boardcertified orthopedic surgeon and impartial medical examiner.
3

Dr. Shin is a Board-certified orthopedic surgeon. He initially evaluated appellant on August 8, 2007 and had
previously recommended that she undergo surgery for an L4-5 disc bulge with impingement.
4

He reiterated that based on appellant’s latest lumbar MRI scan there was no need for any type of surgical
intervention. With respect to future medical care, Dr. Shin indicated that appellant may have an exacerbation of her
back pain at which point she may benefit from medications or additional physical therapy.

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lumbar strain had resolved. Dr. Shin advised that her current work restrictions were related to
her subjective back pain.
On June 3, 2009 the Office issued a notice of proposed termination of compensation and
medical benefits based on Dr. Shin’s reports. It afforded appellant 30 days to submit additional
evidence or argument to the extent she disagreed with the proposed termination of benefits.
Appellant responded on June 26, 2009, however, the Office did not receive any additional
medical evidence. She argued that the lumbar disc protrusion evident on MRI scans was work
related. Appellant noted that as of April 24, 2009 the employing establishment was no longer
able to accommodate her work restrictions and sent her home.
In a July 7, 2009 decision, the Office terminated appellant’s wage-loss compensation and
medical benefits.
Appellant requested a hearing, which was held on October 6, 2009. On October 21, 2009
Dr. Milena D. Zirovich, a Board-certified physiatrist with a subspecialty in pain medicine, stated
that it was more likely than not that appellant’s right lower extremity pain was secondary to her
active radiculopathy at the right S1 nerve root, as confirmed by EMG. She also noted that, prior
to the April 29, 2007 work injury, appellant had no radicular complaints and it was likely that the
twisting injury she sustained initiated the right lower extremity pain and back pain.
By decision dated November 25, 2009, an Office hearing representative affirmed the
July 7, 2009 termination decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to her federal employment, the Office may not terminate compensation without
establishing that the disability has either ceased or that it is no longer related to the employment.6
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.7 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.8
ANALYSIS
Based on his March 4, 2009 examination, Dr. Shin advised that appellant’s employmentrelated lumbar strain had resolved and that her subjective complaints were related to discogenic
5

Curtis Hall, 45 ECAB 316 (1994).

6

Jason C. Armstrong, 40 ECAB 907 (1989).

7

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

8

Calvin S. Mays, 39 ECAB 993 (1988).

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back pain. The 20-pound lifting restriction Dr. Shin imposed was related to her subjective back
pain. According to Dr. Shin there were no objective findings on physical examination. He had
previously reported that appellant’s August 29, 2008 lumbar MRI scan showed a much improved
L4-5 disc bulge with no significant evidence of nerve impingement. Moreover, appellant’s
December 16, 2008 electrodiagnostic studies did not reveal any evidence of radiculopathy. The
Board finds that the reports of Dr. Shin, the attending physician, established that appellant’s
accepted back strain resolved without disability residuals.
Dr. Zirovich’s October 21, 2009 progress notes advised that appellant’s right lower
extremity pain was more likely than not secondary to her active radiculopathy at the right S1
nerve root, as confirmed by EMG. However, Dr. Zirovich did not identify the particular EMG
she relied upon and the latest study of record revealed “[n]o electrodiagnostic evidence of lumbar
radiculopathy, bilaterally.” The claim has not been accepted for lumbar disc disease. Dr. Shin
clearly found that the accepted condition of lumbar strain had resolved. His reports are
sufficiently documented and well reasoned. Appellant no longer suffers from residuals of her
accepted April 29, 2007 employment injury, the Office properly terminated her entitlement to
wage-loss compensation and medical benefits effective July 7, 2009. Accordingly, the Office’s
decision to terminate appellant’s compensation and medical benefits shall be affirmed.
CONCLUSION
The Office properly terminated appellant’s benefits effective July 7, 2009.

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ORDER
IT IS HEREBY ORDERED THAT the November 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 10-657
Issued: November 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2010 appellant filed a timely appeal from a December 14, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 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 the Office abused its discretion by denying authorization for cervical
fusion surgery.
FACTUAL HISTORY
On August 18, 2004 appellant, then a 47-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that on August 17, 2004 she was pushing a bulk mail
container and felt a “pop” in her neck. The Office accepted the claim for cervical and trapezius
strain. Appellant received compensation for wage loss from October 3 to November 2, 2004 and
returned to a light-duty position.

In a form report dated February 15, 2006, Dr. Faisal Albanna, the attending
neurosurgeon, requested authorization for an anterior cervical discectomy fusion at C3-7. The
Office referred appellant for a second opinion examination by Dr. Donald Brancato, an
orthopedic surgeon. In a report dated March 2, 2006, Dr. Brancato provided a history of injury
and results on examination. With respect to the cervical spine, he opined that any cervical strain
from the August 17, 2004 injury had resolved and appellant did not have a residual employment
injury. As to the proposed cervical surgery, Dr. Brancato advised that any surgery would not be
related to the August 17, 2004 employment injury.
In a report dated March 3, 2006, Dr. Albanna stated the diagnosis of cervical spondylosis
was secondary to osteophyte formation. He noted that, although the osteophyte condition was
preexisting, it was asymptomatic prior to the August 17, 2004 injury and was most likely
aggravated by the employment injury.
The Office found a conflict in medical opinion between Dr. Albanna and Dr. Brancato.
Appellant was referred to Dr. James Emanuel, a Board-certified orthopedic surgeon, selected as
the impartial medical specialist. In a report dated May 1, 2006, Dr. Emanuel reviewed a history
of injury and medical treatment and results on examination. He diagnosed degenerative disc
disease C4-7. Dr. Emanuel stated, “The patient may have sustained a cervical neck strain as the
result of the August 17, 2004 injury, but I do not believe by the nature of that injury that it
altered the natural course of the underlying significant degenerative changes noted in the cervical
spine by x-rays, CAT scan, myelogram and MRI scan.” With respect to the need for surgery,
Dr. Emanuel reported that the examination was exaggerated and inconsistent. He stated that
there was abundant evidence that degenerative changes existed at the time of the August 17,
2004 injury and he could not relate the need for surgery to the employment injury.
The record establishes that appellant underwent cervical fusion surgery on
August 3, 2006. By report dated August 12, 2007, an Office medical adviser reviewed the
medical evidence and opined that the cervical surgery was not necessitated by the employment
injury.
In a decision dated August 27, 2007, the Office denied authorization for the cervical
surgery.
By letter dated September 17, 2007, appellant requested reconsideration, arguing that
Dr. Albanna’s opinion should be the weight of the medical evidence. By decisions dated
October 12, 2007 and April 18, 2008, the Office denied merit review of the claim.
Appellant again requested reconsideration and submitted an August 11, 2008 report from
Dr. Albanna, who stated that he disagreed with Dr. Emanuel. Dr. Albanna opined that the
August 17, 2004 employment incident aggravated appellant’s condition and her complaints were
not a natural progression of the underlying degenerative disease.
In a September 19, 2008 decision, the Office denied modification of its prior decisions.
By letter dated September 17, 2009, appellant requested reconsideration. In a
September 11, 2009 report, Dr. Naseem Shekhani, a physiatrist, provided results on examination
and diagnosed cervalgia. He stated, “Based on medical records and history and examination of
2

the rendered incidence of August 17, 2004 is the prevailing factor in causing the surgery for the
preexisting condition of an occupational condition that was aggravated by the duties of her job
description at that time.”
By decision dated December 14, 2009, the Office denied modification of its decisions
denying authorization for appellant’s cervical injury.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides for the furnishing
of services, appliances and supplies prescribed or recommended by a qualified physician which
the Office, under authority delegated by the Secretary, considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of monthly
compensation.1 In interpreting section 8103(a), the Board has recognized that the Office has
broad discretion in approving services provided under the Act to ensure that an employee
recovers from his or her injury to the fullest extent possible in the shortest amount of time.2 The
Office has administrative discretion in choosing the means to achieve this goal and the only
limitation on the Office’s authority is that of reasonableness.3
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.4 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.5 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for the Office to authorize payment.6
It is well established that when a case is referred to a referee specialist 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.7

1

5 U.S.C. § 8103(a).

2

Dale E. Jones, 48 ECAB 648, 649 (1997).

3

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by the Office is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
4

See Debra S. King, 44 ECAB 203, 209 (1992).

5

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

6

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

7

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

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ANALYSIS
In the present case, the Office found a conflict under 5 U.S.C. § 8123(a) as to whether the
recommended cervical surgery should be authorized.8 Dr. Albanna, the attending neurosurgeon,
recommended a cervical discectomy fusion surgery for treatment of the August 17, 2004
employment injury. Dr. Brancato, a second opinion physician, opined that the employment
injury had resolved and that the proposed surgery was not related to the employment injury.
To resolve the conflict, appellant was referred to Dr. Emanuel, who provided a
rationalized medical opinion on the issue. Dr. Emanuel stated there was abundant evidence that
a degenerative condition existed on August 17, 2004. He found that the employment injury was
a strain that did not alter the underlying degenerative disease process. He noted an exaggerated
and inconsistent examination. Dr. Emanuel found that the proposed surgery was not warranted
by the employment injury.
As noted, a rationalized medical opinion from a referee physician is entitled to special
weight. The Board finds Dr. Emanuel’s opinion is entitled to special weight and represents the
weight of medical evidence in this case. Dr. Albanna submitted a supplemental report that he
disagreed with Dr. Emanuel, but Dr. Albanna was on one side of the conflict and his report is not
sufficient to overcome the weight of the referee physician.9 Appellant also submitted a report
from Dr. Shekhani dated September 11, 2009. Dr. Shekhani did not provide a complete and
accurate history or a fully rationalized medical opinion relating the cervical surgery to the
August 17, 2004 employment injury. He referred to the August 17, 2004 incident, but also refers
to an aggravation by job duties and “the preexisting condition of an occupational condition”
without providing additional explanation.
The Office has discretion in authorizing surgery. Based on the weight of the medical
evidence, as represented by Dr. Emanuel, the Office did not abuse its discretion by denying
authorization for cervical surgery under 5 U.S.C. § 8103(a).
CONCLUSION
The Board finds the Office properly denied authorization for appellant’s cervical fusion
surgery.

8

5 U.S.C. § 8123(a) provides that, if there is a disagreement between the physician making the examination for
the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make
the examination. This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case. 20 C.F.R. § 10.321.
9

Additional reports from a physician on one side of the conflict that is properly resolved by an referee physician
are generally insufficient overcome the weight accorded the referee’s report or create a new conflict. See Harrison
Combs, Jr., 45 ECAB 716 (1994); Dorothy Sidwell, 41 ECAB 857 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
L.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, MCCARRAN
INTERNATIONAL AIRPORT, Las Vegas, NV,
Employer
__________________________________________

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

Docket No. 16-0566
Issued: October 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 3, 2016 appellant filed a timely appeal from a December 23, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.

1

The Board notes that appellant submitted additional evidence after OWCP rendered its December 23, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a recurrence of disability on or after
October 4, 2015 as a result of her June 26, 2013 accepted work injuries.
FACTUAL HISTORY
On June 27, 2013 appellant, then a 61-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on June 26, 2013 she tripped on a mat causing
her to wrench her back. OWCP accepted the claim for lumbar sprain, temporary aggravation of
L5 radiculopathy, temporary aggravation of degenerative disc disease, and temporary
aggravation of L3-L4 disc bulge. Appellant stopped work on the date of injury. She received
compensation benefits on the supplemental and periodic rolls from August 15, 2013 to
April 4, 2015.
On October 29, 2014 appellant underwent the removal of hardware at L4-L5 with
decompression and L3-L4 posterior lumbar interbody fusion (PLIF) and posterior lateral fusion
by Dr. William Muir, Board-certified in orthopedic surgery. OWCP approved both the lumbar
spine and disc surgery. The claim was later expanded to include the accepted conditions of
lumbar sprain, lumbosacral radiculitis, degeneration of lumbar intervertebral disc, and
displacement of lumbar intervertebral disc without myelopathy.
Per Dr. Muir’s instructions, appellant was released to work with permanent light-duty
restrictions on March 28, 2015. She accepted a limited-duty assignment, effective March 30,
2015, which restricted her to intermittent walking, standing, lifting, pushing, and pulling, and no
twisting at the waist or bending/stooping.
In a September 16, 2015 report, Dr. Muir noted complaints of numbness in the right thigh
and back pain. He noted postoperative findings of persistent L5 radiculopathy and chronic L5
sensory radiculopathy significantly worsened after the June 2013 injury. Dr. Muir requested a
magnetic resonance imaging (MRI) scan of the lumbar spine.
In an October 1, 2015 diagnostic report, Dr. Bhuvana P. Kittusamy, a Board-certified
diagnostic radiologist, reported that the lumbar spine MRI scan revealed L2-L3 broad-based
posterior disc osteophyte complex including central disc protrusion with ligamentum flavum and
facet joint hypertrophic changes causing mild-to-moderate narrowing of the lateral recess and
neural foramina; L3-L4 postsurgical changes with posterior hypertrophic and facet joint
hypertrophic changes causing moderate bilateral neural foraminal narrowing; L4-L5 postsurgical
changes with posterior hypertrophic and facet joint hypertrophic changes; postsurgical changes
in the posterior elements and posterior paraspinal soft tissues at L4-L5 and L5-S1 and mild soft
tissue enhancement likely representing scar tissue; L5-S1 broad-based posterior annular bulge
with ligamentum flavum and facet joint hypertrophic changes; and posterior intervertebral disc
abnormalities from T10-T11 to T12-L1 which were only seen in the sagittal images.
In an October 8, 2015 medical report, Dr. Muir reported that review of the October 1,
2015 lumbar spine MRI scan revealed right foraminal disc herniation at L2-3. He recommended

2

a right-sided discectomy at L2-L3 and restricted appellant from working due to disc herniation
requiring surgery and progressive loss of strength and sensation.
In an October 8, 2015 attending physician’s report (Form CA-20), Dr. Muir reported
findings of lumbar stenosis, lumbar radiculitis, and lumbar postlaminectomy syndrome. He
noted prior treatment on October 29, 2014 for hardware removal at L4-L5 and lumbar fusion.
Dr. Muir diagnosed lumbar degenerative disc disease and lumbar disc displacement without
myelopathy. He checked the box marked “yes” when asked if the condition was caused or
aggravated by the employment activity, noting the slip and fall back injury on the job in
June 2013. Dr. Muir restricted appellant from walking, standing, lifting up to 10 pounds,
kneeling, and using stairs.
He reported that she was to remain off work until
November 20, 2015. An October 8, 2015 work capacity evaluation (OWCP-5c) form was also
submitted providing appellant restrictions.
On October 16, 2015 appellant filed a claim for compensation (Form CA-7) for leave
without pay beginning October 4, 2015 and continuing.
By letter dated November 16, 2015, OWCP informed appellant that the evidence of
record was insufficient to support her recurrence claim beginning October 4, 2015. It noted that
her Form CA-7 claiming compensation for the period beginning October 4, 2015 appeared to be
claiming disability due to a material change/worsening of her accepted work-related conditions.
Appellant was advised of the medical and factual evidence necessary to support a recurrence
claim and was afforded 30 days to submit the additional evidence.
On November 12, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging a
return/increase of disability as of October 4, 2015. She reported that she was on limited duty and
was required to monitor an exit, which entailed a lot of walking. Appellant explained that after
returning to work she used her cane to walk, but experienced pain. She reported that in
August 2015 she was bending and felt pain radiate down her thigh which did not subside.
Appellant stated that her physician informed her that she had a new herniated disc which could
weaken and reoccur. He provided her permanent restrictions noting that she could never return
to full duty.
In a November 17, 2015 Form CA-20, Dr. Muir restricted appellant from working until
December 20, 2015.
In a November 17 and December 15, 2015 medical report, Dr. Muir reported that
appellant sustained a right foraminal disc herniation at L2-L3 as evidenced by physical
examination and an October 1, 2015 MRI scan of the lumbar spine. He recommended a rightsided discectomy at L2-3 due to progressive weakness and pain. Dr. Muir further reported that
appellant was unable to work due to disc herniation requiring surgery and progressive loss of
strength and sensation.
By decision dated December 23, 2015, OWCP denied appellant’s recurrence claim as the
medical evidence failed to establish that her alleged disability beginning October 4, 2015 was
due to a material change/worsening of her accepted work-related conditions.

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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 resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.3 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.4
OWCP procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.5
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of proof to establish, by the weight of the substantial, reliable, and
probative evidence, that the disability for which he or she claims compensation is causally
related to the accepted injury. This burden of proof requires that a claimant furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that, for each period of disability claimed, the disabling condition is causally
related to the employment injury, and supports that conclusion with medical reasoning.6 Where
no such rationale is present, the medical evidence is of diminished probative value.7
ANALYSIS
OWCP accepted appellant’s claim for a sprain of the back lumbar region, lumbosacral
radiculitis, degeneration of lumbar intervertebral disc, and displacement of lumbar intervertebral
disc without myelopathy. On October 29, 2014 appellant underwent removal of hardware at L4L5 with decompression and L3-L4 PLIF and posterior lateral fusion which was approved by
OWCP. She stopped work on the date of injury and returned to full duty with restrictions on
March 30, 2015. The issue is whether appellant has established a recurrence of total disability
beginning October 4, 2015 and continuing causally related to her accepted June 26, 2013
injuries.
3

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
6

Ronald A. Eldridge, 53 ECAB 218 (2001).

7

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

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Appellant has not alleged a change in her light-duty job requirements. Instead, she
attributed her inability to work to a change in the nature and extent of her employment-related
conditions. Appellant, therefore, has the burden of proof to provide medical evidence to
establish that she was disabled due to a worsening of her accepted work-related conditions.8 She
filed claims for compensation for the period beginning October 4, 2015 alleging that she was
totally disabled due to her accepted June 26, 2013 employment injuries. However, appellant did
not submit probative medical evidence demonstrating total disability for this period of time due
to her accepted conditions. The Board finds that she has not met her burden of proof to establish
her recurrence claim.
In medical reports dated September 16 through December 15, 2015, Dr. Muir treated
appellant for complaints of numbness in the right thigh and back pain. He noted that an
October 1, 2015 MRI scan of her lumbar spine revealed right foraminal disc herniation at L2-L3
and recommended a right-sided discectomy at L2-3. Dr. Muir restricted appellant from working
beginning October 8, 2015 due to disc herniation requiring surgery and progressive loss of
strength and sensation.
The Board finds that the opinion of Dr. Muir is insufficiently rationalized. The reports of
Dr. Muir fail to provide sufficient medical rationale to establish total disability due to a
recurrence. Dr. Muir did not relate appellant’s L2-L3 right foraminal disc herniation to her
June 26, 2013 employment injuries or residuals of the October 29, 2014 lumbar surgery, nor did
he provide adequate bridging evidence to show a spontaneous worsening of the accepted
conditions.9 His lack of explanation makes it unclear if the October 1, 2015 MRI scan findings
are the result of a preexisting nonoccupational condition, caused by a new injury from
appellant’s limited-duty assignment, or due to a recurrence of disability.10 While Dr. Muir found
her disabled as a result of the L2-L3 disc herniation, he failed to provide the required link
relating the disability to her previously accepted work injuries to establish a spontaneous
worsening of the accepted conditions.11
On his Form CA-20 Dr. Muir restricted appellant from returning to work and checked the
box marked “yes” when asked if her condition was caused or aggravated by the employment
activity, noting the slip and fall back injury on the job in June 2013. However, the Board has
held that a report that addresses causal relationship with a checkmark, without medical rationale
explaining how the work condition caused the alleged injury, is of diminished probative value
and insufficient to establish causal relationship.12 Although Dr. Muir generally supported that
appellant’s continued symptoms were a result of her occupational lumbar injuries, his opinion on

8

D.L., Docket No. 13-1653 (issued November 22, 2013).

9

J.H., Docket No. 14-775 (issues July 14, 2014).

10

P.O., Docket No. 14-1675 (issued December 3, 2015).

11

T.M., Docket No. 06-440 (issued August 7, 2006).

12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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causal relationship was conclusory as to how the conditions caused disability or remained
symptomatic.13
Dr. Muir restricted appellant from standing, walking, lifting up to 10 pounds, kneeling,
stooping, and using stairs. He reported that appellant’s progressive loss of strength and
sensation, and need for surgery, rendered her unable to return to work. While Dr. Muir generally
explained appellant’s inability to work, he failed to relate the L2-L3 disc herniation to her
accepted conditions to establish total disability.14 He did not discuss her limited-duty assignment
to profess some knowledge as to why she could not work for the claimed periods. The Board has
held that a medical opinion that is not fortified by rationale is of diminished probative value.15
OWCP also received an October 1, 2015 MRI scan report from Dr. Kittusamy. This
diagnostic report, however, did not address disability or causal relationship and was therefore of
limited probative value.16
Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that she was totally disabled on or
after October 4, 2015 due to residuals of her accepted injuries.17 She failed to establish by the
weight of the reliable, probative, and substantial evidence, a change in the nature and extent of
the injury-related condition resulting in her inability to perform her employment duties.
As appellant has not submitted medical evidence establishing a recurrence of disability
on or after October 4, 2015 due to her accepted employment injuries, the Board finds that she has
not met her burden of proof.18 For the reasons stated above, OWCP’s denial of the claimed
compensation for disability was proper under the law and facts of the case.19
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.
13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
14

R.A., Docket No. 14-1327 (issued October 10, 2014).

15

Cecilia M. Corley, 56 ECAB 662 (2005).

16

See S.B., Docket No. 13-1162 (issued December 12, 2013).

17

The Board notes that appellant could be entitled to wage-loss compensation for attending medical appointments
on or after October 4, 2015. If a claimant has returned to work following an accepted injury or the onset of an
occupational disease and must leave work and lose pay or use leave to undergo treatment, examination or testing for
the accepted condition, compensation should be paid for wage loss under section 8105 of FECA, while undergoing
the medical services and for a reasonable time spent traveling to and from the location where services were
rendered. 5 U.S.C. § 8105. For a routine medical appointment, a maximum of four hours of compensation is
usually allowed.
See FECA Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013). See also William A. Archer, 55 ECAB 674 (2004).
18

J.G., Docket No. 13-737 (issued October 29, 2013).

19

Beverly A. Spencer, 55 ECAB 501 (2004).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of total disability on or after October 4, 2015, causally related to her accepted employment
injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1196
Issued: January 4, 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 March 30, 2007 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ merit decision dated May 10, 2006, denying modification of its
termination of his compensation benefits and a nonmerit decision dated January 8, 2007 denying
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective November 7, 2003; (2) whether appellant met his burden of
proof to establish that he had any disability or condition after November 7, 2003, causally related
to the September 4, 1999 employment injury; and (3) whether the Office properly denied further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On January 5, 2003 appellant, then a 54-year-old city letter carrier, filed an occupational
disease claim for neck and lower back conditions which he attributed to his to federal
employment.1 The Office accepted the claim for lumbar and cervical subluxations. Appellant
returned to limited duty on September 29, 1999. In September 2003, he decreased his work
hours to six hours a day with restrictions on carrying mail and walking.
In an April 25, 2003 letter and work capacity evaluation, Dr. Julie Owen-Wagner, a
chiropractor, determined that appellant reached maximum medical improvement and issued
permanent restrictions. She referred appellant to Dr. Michael Longley, a Board-certified
orthopedic surgeon. In a May 19, 2003 report, Dr. Longley diagnosed lumbar back pain,
cervicalgia/neck pain and shoulder pain, degenerative disc disease in both the cervical and
lumbar spine and generalized osteoarthritis. Following the Office’s request for clarification in a
June 23, 2003 report, Dr. Longley opined that appellant was able to work regular duty as a city
carrier without restrictions.
The Office referred appellant to Dr. Anil Agarwal, a Board-certified orthopedic surgeon,
for a second opinion. In an August 21, 2003 report, Dr. Agarwal noted appellant’s history of
injury and treatment, set forth his examination findings and reviewed the medical reports of
record. He opined that appellant’s accepted conditions of September 4, 1999 had resolved as
there were no positive findings. Dr. Agarwal noted that appellant had some preexisting
foraminal stenosis and lumbar spondylosis. He opined that appellant could not go back to
full-time duty as a letter carrier, but was able to work eight hours a day with restrictions.
Following the Office’s request for clarification, Dr. Agarwal advised that appellant’s work
restrictions were as a result of his underlying and preexisting conditions, not a result of the
accepted conditions.
On September 17, 2003 the Office proposed to terminate compensation benefits based on
Dr. Agarwal’s opinion that appellant’s accepted conditions had resolved.
In response, appellant submitted September 23 and October 9, 2003 letters offering
argument, an excerpt from the Gate City News from January 2001 and an October 3, 2003
magnetic resonance imaging (MRI) scan report, which noted bilateral foraminal stenosis at C3-4
and right foraminal stenosis at C4-5.
In a February 26, 2003 report, Dr. Brian P. Conroy, a Board-certified orthopedic surgeon,
noted that appellant had complaints of neck pain and bilateral shoulder pain since 1999 and had
previously been diagnosed with neck arthritis. He noted that the only thing that had changed
since that time was appellant’s job, which got “heavier.” Dr. Conroy listed an impression of
either a rotator cuff tear or nerve injury to the left shoulder and cervical arthritis. In a March 21,
2003 report, he stated that the cervical stenosis at the neural foramen could explain appellant’s
neck pain and some of his shoulder pain. Dr. Conroy found that appellant had subacromial
impingement, bursitis and rotator cuff tendinitis (which were all the “same thing”) and
1

In a separate claim, the Office previously accepted the conditions of right tennis elbow and right
acromioclavicular tendinitis due to a June 20, 1988 injury.

2

hypertrophy of the acromioclavicular joint and the inferior acromion, which affected both
shoulders, the right worse than the left. He opined that the impingement could be work related
due to appellant’s amount of and height of overhead lifting. Dr. Conroy further opined that
carrying a bag on the shoulder could aggravate the acromial joint and the neck. He also opined
that appellant’s neck condition appeared to be work related as he was tolerating his neck problem
before his job change, which involved twisting back and forth and carrying.
In a September 30, 2003 report, Dr. Stephen E. Doran, a neurosurgeon, noted the history
of injury and presented his examination findings. He diagnosed chronic neck and bilateral arm
pain and recommended a follow-up MRI scan of his cervical spine. Dr. Doran noted that
appellant had multiple questions as to whether his current condition was related to his
occupation. He advised that, in the absence of a specific job injury, it would be difficult to
attribute his current condition entirely to his occupation.
Medical reports dated April 25, May 22 and October 9, 2003 from Dr. Owen-Wagner
were submitted. On October 9, 2003 she disagreed with Dr. Agarwal’s opinion that appellant’s
accepted conditions had resolved. Dr. Owen-Wagner advised that appellant had vertebral
subluxation complex in various areas of the spine which was complicated by osteoarthritis,
fibromyalgia and job stress. She indicated that appellant had reached maximum medical
improvement and had a moderate-severe disability.
By decision dated November 7, 2003, the Office terminated appellant’s compensation
effective that date. It found that the weight of the medical opinion evidence rested with
Dr. Agarwal, the second opinion physician, who opined that appellant’s accepted conditions had
resolved.
On November 28, 2003 appellant requested an oral hearing, which was held on
March 18, 2004. He submitted a November 30, 1999 MRI scan and various medical forms
discussing treatment and evaluation at the Rejuvenation Center. In an October 7, 2003 report,
Dr. Doran advised that an October 3, 2003 MRI scan showed mild foraminal narrowing at C3-4
bilaterally and on the right at C4-5. He opined that appellant was at maximum medical
improvement and his restrictions should remain the same.
In a January 29, 2004 report, Dr. Rod Hall, an osteopath, advised that several conditions
in appellant’s spine may be contributing to his condition. He advised that the pain in the cervical
area was primarily from bony encroachment and sclerosis of degenerative arthritic spondylosis
and degenerative disc disease. Dr. Hall further advised that the lumbar pain and intermittent
radiculopathy resulted from mild anterolisthesis of L4-5, mild to moderate degenerative disc
disease, annular disc bulging at various levels, hypertrophy of posterior elements of the lumbar
spine and mild to moderate spinal canal stenosis. He opined that the lumbar spine changes were
the result of cumulative overuse and unequal stressors that were most likely job related. On
March 15, 2004 Dr. Hall described appellant’s work activities and opined that his
symptomatology was related to his repetitive work stressors of carrying heavy mailbags and
repetitive turning of the head over a number of years. He further stated that appellant had
definite arthropathies that were a pathologic response to overuse.

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On May 6, 2004 an Office hearing representative affirmed the termination of wage-loss
compensation benefits effective November 7, 2003 based on Dr. Agarwal’s opinion. The Office
hearing representative found, however, a conflict in medical opinion evidence was created
between Dr. Hall, for appellant, and Dr. Agarwal, the Office referral physician, as to whether
appellant had continuing employment-related residuals. The hearing representative directed the
Office to refer appellant to an impartial medical examiner to resolve the conflict.
On June 10, 2004 the Office referred appellant, together with a statement of accepted
facts, the record and a list of questions, to Dr. Lonnie R. Mercier, a Board-certified orthopedic
surgeon, for an impartial medical examination.2 In a July 1, 2004 report, Dr. Mercier reviewed
appellant’s history and noted that, since August 2002, he worked as a city letter carrier for six
hours a day, which involved delivery for two hours and sorting mail for four hours. He reported
diminished cervical spine movement on examination, range of motion of the lumbar spine
consistent with age and an essentially normal neurologic examination. Dr. Mercier opined that
appellant had degenerative disc disease involving the cervical and lumbar spines, which was
confirmed by his radiographic studies. He noted that the term “subluxation” was generally not
accepted as a valid diagnosis in the medical community and found no clinical evidence or
diagnostic studies to support a “subluxation.” Dr. Mercier explained that there was no evidence
indicating problems with spinal alignment and opined that appellant’s neck and low back pain
was the result of the aging process. He stated that appellant’s underlying degenerative disc
disease of the cervical and lumbar spine did not develop from either his regular work duties or
his limited-duty position and that any pain or symptoms he experienced resulted from the
underlying degenerative disc disease and was unrelated to work activities. Dr. Mercier further
opined that appellant could not return to his original position due to degenerative disc disease
and age, but that he should be able to perform his position as a city letter carrier full time with
restrictions. He explained that the restrictions were due to appellant’s underlying degenerative
disc disease and age and not due to the work injury or activity. In a work capacity evaluation
dated June 30, 2004, Dr. Mercier stated that appellant was capable of working eight hours a day
and noted his physical restrictions.
In a July 14, 2004 decision, the Office found that appellant had no continuing disability
due to his accepted condition. The Office accorded special weight to Dr. Mercier’s report.
On August 4, 2004 appellant requested an oral hearing which was held on
November 21, 2005. He submitted a statement disagreeing with the Office’s development of his
claim and submitted evidence regarding administrative matters and the duties he performed.
Appellant also submitted reports from Dr. Hall who disagreed with Dr. Mercier’s opinion and
indicated that his repetitive stress injuries were employment related. In an August 30, 2004
report, Dr. Owen-Wagner disagreed with Dr. Mercier’s opinion, noting the manner in which
subluxations could be diagnosed. She advised that appellant had vertebral subluxation complex
that was complicated by osteoarthritis, fibromyalgia and repetitive twisting of the spine from his
job.
2

The Office’s letter inadvertently noted that a conflict in medical opinion evidence was between
Dr. Owen-Wagner and Dr. Agarwal. In a letter dated July 2, 2004, the Office indicated to appellant that this mistake
would not affect the content of the referee physician’s report.

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In a decision dated January 27, 2006, the Office hearing representative found that the
impartial examiner’s report was based on a complete and accurate listing of appellant’s work
duties and physical requirements. The hearing representative found that appellant’s allegations
regarding an increased workload and twisting on the job was not established. The Office hearing
representative, however, set aside the Office’s July 14, 2004 decision on the grounds that
Dr. Mercier’s medical opinion was not well reasoned on the issue of whether appellant’s
underlying degenerative condition was caused or contributed to by his work duties. The case
was remanded for Dr. Mercier to provide a supplemental report.
In a February 14, 2006 supplemental report, Dr. Mercier stated: “with regard to the
question of degenerative disc disease, all standard textbooks describe the changes that occur in
the disc material as the result of the normal aging process.” He described such changes and
indicated that the lower discs in the cervical and lumbar spine were known to age more rapidly
than others and that there were no evidence-based studies to support that disc degeneration was
related to work activity. Dr. Mercier concluded that, although he had no doubt that appellant’s
symptoms were real, they were the result of an aging spine, a “normal disease of life,” and not
caused by a work injury. He additionally stated that there usually was no objective physical
evidence of trauma, recent, remote or repetitive in degenerative disc disease.
By decision dated May 10, 2006, the Office denied appellant’s continuing entitlement to
compensation benefits.
Appellant requested reconsideration and reiterated previous arguments. In an August 23,
2006 report, Dr. Owen-Wagner opined that appellant had vertebral subluxation complex with
associated degenerative disc disease and fibromyalgia that was aggravated by repetitive twisting
in his job. She referred appellant to Dr. John McClaren, a chiropractic neurologist. In an
August 2, 2006 report, Dr. McClaren opined that appellant’s pain syndrome and vertebral
subluxation complex at multiple levels were directly caused and aggravated by his work duties.
In an October 3, 2006 report, Dr. McClaren advised that August 31, 2006 x-rays were indicative
of chiropractic subluxation. He opined that appellant’s work duties caused and aggravated his
spine conditions. In an “addendum” he noted his opinion on the term “subluxation.” A copy of
a Dr. McClaren’s September 15, 2006 x-ray report was also submitted.
By decision dated January 8, 2007, the Office denied reconsideration on the grounds that
the evidence submitted was insufficient to warrant review of the claim.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.4 The

3

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

4

Id.

5

Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
Section 8123(a) provides that if there is a disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.6
ANALYSIS
The Office accepted appellant’s claim for lumbar and cervical subluxations. The Office
terminated appellant’s compensation on November 7, 2003, finding that the weight of the
medical opinion evidence rested with Dr. Agarwal, the second opinion physician, who opined on
August 21, 2003 that appellant’s accepted conditions had resolved.
However, the Board notes that, at the time the Office terminated benefits, there was a
conflict in the medical evidence between Dr. Agarwal, for the Office, and Dr. Owen-Wagner,
appellant’s treating chiropractor. In an October 9, 2003 report, Dr. Owen-Wagner disagreed
with Dr. Agarwal’s opinion that appellant’s accepted subluxation conditions had resolved. She
indicated that appellant had vertebral subluxation complex in various areas of the spine, had a
moderate-severe disability and was still experiencing residuals from the accepted injury.
Dr. Agarwal, the second opinion physician, indicated that appellant had no residuals from the
accepted conditions. Rather, he attributed appellant’s current condition to his underlying and
preexisting spinal stenosis and lumbar spondylosis. Both physicians examined appellant and
reviewed multiple medical records in support of their opinions.
The Board finds that the opinions of Drs. Agarwal and Owen-Wagner are in conflict as to
whether appellant had any continuing residuals or disability resulting from the accepted injury.
As this conflict existed at the time the Office terminated benefits on November 7, 2003, the
Office did not meet its burden of proof in terminating such benefits. Consequently, the Office’s
termination of benefits must be reversed.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof in terminating
appellant’s compensation and medical benefits effective November 7, 2003.7

5

See Del K. Rykert, 40 ECAB 284 (1988).

6

5 U.S.C § 8123(a); Regina T. Pellecchia, 43 ECAB 155 (2001).

7

In light of the disposition of this issue, the remaining issues are moot.

6

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2007 and May 10, 2006 decisions of
the Office of Workers’ Compensation Programs are reversed.
Issued: January 4, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Boston, MA, Employer
__________________________________________

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Appearances:
Bradley M. Lown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0523
Issued: August 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 8, 2020 appellant, through counsel, filed a timely appeal from a December 16,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant
to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.

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.
The Board notes that counsel did not appeal from OWCP’s August 6, 2019 merit decision. As such, it is not
properly before the Board on the current appeal. See 20 C.F.R. § 501.3.
2

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 1, 2019 appellant, then a 63-year-old boat builder, filed a traumatic injury claim
(Form CA-1) alleging that on March 25, 2019 he injured his left knee when climbing off staging,
he stepped on a hammer and twisted it while in the performance of duty. On the reverse side of
the claim form the employing establishment acknowledged that he was injured in the performance
of duty. Appellant stopped work on March 28, 2019 and returned to work on April 1, 2019.
On March 25, 2019 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing appellant to seek medical care related to
his left knee pain. In a March 28, 2019 attending physician’s report, Part B of the Form CA-16,
Dr. Avnish Clerk, a Board-certified orthopedic surgeon, noted that appellant stepped on a hammer
and twisted his knee at work while climbing off staging. He listed a finding of arthritic aggravation
and checked a box marked “Yes” to indicate that the condition was caused or aggravated by the
described employment activity. Dr. Clerk opined that appellant could resume light-duty work with
no bending, kneeling, squatting, or climbing.
In a March 28, 2019 report, Dr. Clerk noted that appellant had left knee pain after twisting
his knee at work. He examined appellant and reviewed x-rays of his left knee. Dr. Clerk diagnosed
primary osteoarthritis of the left knee and recommended physical therapy treatment. In a form
report of even date, he noted that appellant could return to work with the restriction of no bending,
kneeling, squatting, or climbing.
Appellant submitted physical therapy treatment notes dated April 3 to May 7, 2019.
Dr. Clerk noted in a May 9, 2019 report that appellant was required to do more heavy work
at his employment which had significantly aggravated his left knee symptoms. He examined
appellant and diagnosed primary osteoarthritis of the left knee. Dr. Clerk recommended that
appellant refrain from any heavy lifting, squatting, kneeling, or climbing.
A magnetic resonance imaging (MRI) scan of appellant’s left knee, dated May 23, 2019,
demonstrated a medial collateral ligament (MCL) sprain, articular cartilage loss and joint effusion,
and a potential radial tear involving the medial meniscus.
In a June 4, 2019 report, Dr. Clerk noted that appellant’s left knee symptoms had not
improved. He examined appellant and diagnosed primary osteoarthritis of the left knee. Dr. Clerk
opined that appellant’s symptoms were secondary arthritic changes and were related to the
demands of his job.
In a June 5, 2019 physician review report, Dr. David Sack, a Board-certified specialist in
occupational medicine, reviewed the medical evidence of record at the request of the employing
establishment. He did not conduct a physical examination. Dr. Sack indicated that the diagnosis
of degenerative arthritis is a condition that develops over time and not as a result of a single,
discreet injury event. He noted that appellant’s MRI scan report suggested that the degenerative
2

changes were chronic and that appellant’s symptoms were likely related to the preexisting arthritic
condition. As such, Dr. Sack opined that there was insufficient clinical documentation to support
a causal relationship between the reported injury event and the diagnosis of degenerative arthritis.
He further indicated that, if the proposed procedure for appellant’s condition was requested, a
district medical adviser (DMA) should review for applicability and appropriateness.
In a June 20, 2019 development letter, OWCP indicated that when appellant’s claim was
first received it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment did not controvert
continuation of pay or otherwise challenge the case, payment of a limited amount of medical
expenses was administratively approved. It explained that it had reopened the claim for
consideration. OWCP requested additional factual and medical evidence in support of appellant’s
claim and provided a questionnaire for his completion. It afforded him 30 days to submit the
necessary evidence.
Subsequently, OWCP received a June 6, 2019 report from Dr. Robert Timmons, a Boardcertified osteopathic physician specializing in occupational medicine, who noted that appellant
was experiencing left knee pain after twisting his left knee at work. He examined appellant and
diagnosed other meniscus derangements of the left knee and unilateral primary osteoarthritis of
the left knee. Dr. Timmons opined that, with regard to medical causation, the objective findings
were consistent with the history of a work-related etiology.
On June 24, 2019 appellant responded to OWCP’s development questionnaire. He noted
that, on March 25, 2019, he was carrying a rub rail to a location for installation. Appellant
indicated that, while carrying the rub rail, he climbed up the steps of a staging and had to duck to
avoid a loose object. He reported that while ducking, he stepped on a hammer, lost his footing,
and twisted his left knee against the guide rail. Appellant noted that he felt an unusual, immediate
pain in his left knee that he had not previously experienced. He then reported the incident to his
supervisor and sought medical care.
Dr. Timmons related appellant’s history of injury in a July 8, 2019 report. He examined
appellant and again diagnosed other meniscus derangements of the left knee and unilateral primary
osteoarthritis of the left knee. Dr. Timmons opined that appellant’s twisting of his knee on
March 25, 2019, likely caused a strain of the left knee, which, coupled with his advanced knee
degeneration, resulted in the significant cycle of knee pain symptoms and diminished knee
function. He indicated that, while appellant did have preexisting arthritis, the injury event
significantly aggravated this condition since he was asymptomatic prior to the event and the
symptoms were not resolving.
In a July 8, 2019 medical form, Dr. Timmons indicated that appellant could return to work
with restrictions on July 8, 2019. He noted that the restrictions were indefinite and that appellant
should avoid twisting of the left knee and that he was unable to kneel, squat, or climb.
In a July 26, 2019 report, a physician assistant examined appellant and diagnosed primary
osteoarthritis of the left knee. In a medical form of even date, the physician assistant listed
appellant’s work restrictions and indicated that he could return to work with modification.

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The employing establishment controverted appellant’s claim in a July 30, 2019 letter,
noting that the medical evidence of record was insufficient to establish causal relationship. It
attached the previously submitted June 5, 2019 report, from Dr. Sack with its letter.
By decision dated August 6, 2019, OWCP denied appellant’s traumatic injury claim
finding that the medical evidence of record was insufficient to establish that his diagnosed
conditions were causally related to the accepted March 25, 2019 employment incident.
In an August 5, 2019 report, Dr. Timmons related appellant’s history of present illness. He
examined appellant and diagnosed other meniscus derangements of the left knee and unilateral
primary osteoarthritis of the left knee. Dr. Timmons again opined that, while appellant did have
preexisting arthritis, the injury event significantly aggravated this condition since he was
asymptomatic prior to the event and the symptoms were not resolving.
In a September 3, 2019 notification of work capacity, Dr. Timmons noted that appellant
could return to work with restrictions, which he indicated would last indefinitely. He reported that
appellant was unable to kneel, squat, or climb.
On October 15, 2019 appellant, through counsel, requested reconsideration.
By decision dated December 16, 2019, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens

4

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); W.C., 59 ECAB 372 (2008).

5
20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); C.N., Docket No. 08-1569 (issued
December 9, 2008).
6

Id. at § 10.607(a); see K.T., Docket No. 18-0927 (issued May 13, 2020). The one-year period begins on the next
day after the date of the original contested decision. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.

4

and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s October 15, 2019 request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, or advanced a new and relevant legal
argument not previously considered. Thus, he is not entitled to a review of the merits of his claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant has not provided relevant and pertinent new evidence
in support of his request for reconsideration. The underlying issue in this case of whether the
accepted March 25, 2019 employment incident caused or aggravated the diagnosed conditions is
a medical issue, which must be addressed by relevant medical evidence.9
Appellant submitted an August 5, 2019 report from Dr. Timmons which was substantially
similar to his July 8, 2019 report. While Dr. Timmons did address causation in his August 5, 2019
report, it was nearly identical of his opinion in his July 8, 2019 report. Providing additional
medical evidence that either duplicates or is substantially similar to evidence of record does not
constitute a basis for reopening a case.10 Accordingly, this evidence is insufficient to warrant merit
review.
Appellant also submitted a September 3, 2019 notification of work capacity from
Dr. Timmons, which listed appellant’s work restrictions. However, this evidence does not address
the underlying issue in this case, which is whether appellant’s diagnosed conditions were causally
related to the accepted March 25, 2019 employment incident. The Board has held that the
submission of evidence or argument, which does not address the particular issue involved does not
constitute a basis for reopening a case.11 As appellant failed to provide relevant and pertinent new
evidence, he is not entitled to a merit review based on the third requirement under 20 C.F.R.
§ 10.606(b)(3).

7

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see C.C., supra note 5; E.R., Docket No. 09-1655 (issued March 18, 2010).

9

D.B., Docket No. 19-1963 (issued July 1, 2020).

10

G.J., Docket No. 20-0071 (issued July 1, 2020).

11

D.M., Docket No. 18-1003 (issued July 16, 2020); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

5

The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).13
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

Id.

13

The Board notes that the employing establishment issued a Form CA-16, dated March 25, 2019. A completed
Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility or
physician, when properly executed. The form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R.
§ 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S.POSTAL SERVICE, POST OFFICE,
Manassas, VA, Employer
__________________________________________
Appearances:
Stephen Scavuzzo, for the appellant
Office of Solicitor, for the Director

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Docket No. 12-250
Issued: June 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

On November 15, 2011 appellant, through his attorney, filed an application for review of
an Office of Workers’ Compensation Programs’ (OWCP) decision dated May 24, 2011 which
denied modification of a decision denying appellant’s claim for occupational disease.
The Board has duly considered the matter and finds that the case should be remanded to
OWCP. In the case of William A. Couch1, the Board held that when adjudicating a claim,
OWCP is obligated to consider all evidence properly submitted by a claimant and received by
OWCP before the final decision is issued. Following OWCP’s March 11, 2010 merit decision,
appellant filed a request for reconsideration on February 23, 2011. He submitted medical reports
dated October 28, November 12 and December 10, 2009, January 8 and 29, 2010 from
Dr. Syed M. Ahmed, a treating physician, who addressed his disability. This evidence was
received by OWCP on February 23, 2011. In its May 24, 2011 decision, OWCP denied
appellant’s reconsideration request on the grounds that he failed to submit sufficient medical
evidence to establish causal relationship between the factors of his employment and his medical
condition. It did not note receipt or consideration of the medical reports. OWCP only
acknowledged receipt of an award summary that appellant submitted on March 10, 2011.

1

41 ECAB 548 (1990).

The Board finds that OWCP did not review the medical reports from Dr. Ahmed received
on February 23, 2011. For this reason, the case will be remanded to OWCP to consider all the
evidence of record at the time of the May 24, 2011 decision. Following such further
development as OWCP deems necessary, it shall issue an appropriate decision on the claim.
IT IS HEREBY ORDERED THAT the May 24, 2011 decision of the Office of
Workers’ Compensation Programs be set aside. The case record is remanded for further
proceedings consistent with this order of the Board.
Issued: June 25, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2