United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 16-0049
Issued: January 29, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 15, 2015 appellant filed a timely appeal from a May 21, 2015 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 OWCP abused its discretion by denying reimbursement for travel
expenses to a pharmacy.
FACTUAL HISTORY
The case was before the Board on prior appeals.2 OWCP accepted that appellant
sustained a left shoulder subscapular muscle strain on March 17, 1989 while throwing sacks of
1

5 U.S.C. § 8101 et seq.

2

Docket No. 03-1614 (issued December 16, 2003).

mail into a hamper. On November 11, 1997 appellant alleged that he sustained a left shoulder
injury while lifting a tray of mail from a u-cart to a hamper. The claim was accepted for left
shoulder strain. OWCP also accepted that appellant sustained a left shoulder strain while
reaching for and lifting a bundle of coins on June 1, 1999. The claims were combined into the
present master file, No. xxxxxx837.
By letter dated March 6, 2014, OWCP indicated that appellant had claimed travel
reimbursement for a trip to his pharmacy on multiple dates. It reported that he had requested
reimbursement for 80 miles roundtrip from his home, although the actual distance was 60 miles.
Appellant responded in a March 10, 2014 letter that he was using a Walgreen’s pharmacy in
Tempe, Arizona because it was a 24-hour pharmacy and more accessible when he needed
prescriptions filled. He reported that the route he was taking was actually 82.4 miles roundtrip
from his home, as another route had delays due to construction. Appellant attached maps and
printed directions.
OWCP advised appellant in an April 17, 2014 letter that it had reviewed Walgreen’s
pharmacy locations and there was a 24-hour pharmacy approximately nine miles from his house,
and provided an address for the pharmacy. In addition, it indicated there was a Walgreen’s
pharmacy within one mile of his house, with closing hours of 10:00 p.m. during the week and
6:00 p.m. on weekends. OWCP advised appellant there was no reason to travel 80 miles
roundtrip to fill his prescriptions.
By decision dated October 8, 2014, OWCP denied travel reimbursement for claimed
travel to Walgreen’s pharmacy of 80 miles roundtrip. It noted the locations of the pharmacies
discussed in its April 17, 2014 letter.
In a March 22, 2014 letter, appellant indicated that he had claimed travel reimbursement
for nine pharmacy roundtrip visits at 80 miles per visit from January 28 to February 27, 2014.
For the period February 28 to April 20, 2014, he indicated that he requested travel
reimbursement at 60 miles for a roundtrip visit.
Appellant requested a review of the written record by an OWCP hearing representative
on October 27, 2014. He argued that he had been using the Tempe pharmacy location for over
20 years and OWCP had previously paid his travel reimbursement.
By decision dated May 21, 2015, OWCP’s hearing representative affirmed the October 8,
2014 decision. She found OWCP had not abused its discretion in denying the claimed travel
reimbursement.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, 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.3 In interpreting section 8103(a), the
3

5 U.S.C. § 8103(a).

2

Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.4 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.5
With respect to transportation, OWCP regulation provides that the employee is entitled to
reimbursement of necessary expenses, including transportation needed to obtain authorized
medical services, appliances, or supplies.6 To determine what is a reasonable distance, OWCP
will consider the availability of services, the employee’s condition, and the means of
transportation. Generally, a distance of up to 100 miles roundtrip is considered a reasonable
distance to travel, and travel should be undertaken by the shortest route and by public
conveyance if practical.7
FECA Bulletin No. 14-02 provides in relevant part: “A claimant may claim mileage for
pharmacy pick up to his or her local pharmacy; reimbursement is generally limited to the closest
pharmacy by the shortest route.”8
ANALYSIS
In the present case, appellant has claimed reimbursement for travel from his home to a
pharmacy to pick up medical prescriptions. He indicated that he went to a Walgreen’s pharmacy
in Tempe, Arizona, which was either 80 miles or 60 miles from his home, depending on the route
taken.
Although the regulations noted above refer to a 100-mile roundtrip, in the present case
appellant is not travelling for medical treatment. As FECA Bulletin No. 14-02 indicates, while
pharmacy transportation may be reimbursable, it is generally limited to the closest pharmacy by
the closest route. In considering the “availability of services” under OWCP regulations at 20
C.F.R. § 10.315(a) noted above, OWCP made a finding that there was a Walgreen’s pharmacy
one mile from appellant’s home and another with 24-hour service approximately nine miles from
his house. Appellant did not contest these particular findings of fact and no contrary evidence
was presented.
The reason appellant provided for filling his prescriptions in Tempe was that he had been
going there for 20 years and it was a 24-hour pharmacy. A prior reimbursement for
transportation or other services under 5 U.S.C. § 8103(a) does not establish a continuing

4

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

5

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP 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).
6

20 C.F.R. § 10.315(a).

7

Id. See also D.F., Docket No. 14-1841 (issued July 20, 2015).

8

FECA Bulletin No. 14-02 (issued January 29, 2014).

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entitlement to reimbursement.9 Appellant did not adequately explain why a 24-hour pharmacy
was required, and in any case OWCP found a 24-hour Walgreen’s pharmacy much closer to his
home. OWCP made a reasonable conclusion that he could have his prescriptions filled without
travelling 60 or 80 miles roundtrip. This finding is consistent with “the closest pharmacy by the
shortest route” provision of FECA Bulletin No. 14-02.
OWCP has, as discussed above, discretion in approving travel reimbursement consistent
with 5 U.S.C. § 8103. The denial of the requested travel reimbursements was reasonable under
the circumstances of this case. Therefore, no abuse of discretion has been established in this
case.
On appeal, appellant argues that he had complied with OWCP’s request for evidence
regarding his travel to the Tempe pharmacy and asserts that OWCP implied that he could
continue to use this pharmacy if he provided the requested information. As noted, a prior
reimbursement does not establish that OWCP must continue the same reimbursement to
appellant. OWCP has discretion to authorize mileage for prescription purchases, and for the
reasons discussed OWCP did not abuse its discretion in this case.
CONCLUSION
The Board finds OWCP did not abuse its discretion by denying reimbursement for travel
expenses to a pharmacy.

9

See W.H., Docket No. 14-1662 (issued February 3. 2015).
May 21, 2008).

4

See also J.M., Docket No. 07-1075 (issued

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 21, 2015 is affirmed.
Issued: January 29, 2016
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
O.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-861
Issued: August 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 29, 2007 denying his claim for
compensation. 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 appellant has established an injury causally related to factors of his
federal employment.
FACTUAL HISTORY
On March 16, 2007 appellant, then a 51-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that a degenerative joint condition was
aggravated by his federal employment. He reported that he became aware of an employmentrelated condition on June 14, 2004. Appellant described the injuries as involving his knees, hips,
spine and feet. The reverse of the claim form indicated that he had not stopped working.

In a narrative statement, appellant reported that he had degenerative joint disease in his
knees, hips and spine. He also noted a helloma molle of his right foot.1 Appellant stated that his
job included standing, bending, reaching, walking, lifting, stooping, twisting, turning, pushing
and pulling. He indicated that he worked on flat concrete and asphalt tiles.
With respect to medical evidence, appellant submitted a July 16, 2004 report from
Dr. Tracey Walton, a podiatrist, who noted hammertoes and helloma molle of the fourth web
space in the right foot, with pain worse on physical activity such as walking. A November 6,
1989 letter from the Department of Veterans Affairs (VA) reported a 30 percent disability for a
flat foot condition and 10 percent for a “condition of the skeletal system.”
By decision dated June 6, 2007, the Office denied appellant’s claim for compensation. It
found the medical evidence was insufficient to establish the claim.
Appellant requested reconsideration of his claim on September 28, 2007. The evidence
submitted included a September 6, 2007 report of Dr. S. Brown-Johnson, a VA physician, who
stated that appellant had a history of degenerative spine disease with chronic cervical and lumbar
pain. Dr. Brown-Johnson stated that, due to the degenerative changes in the spine, appellant
should avoid heavy lifting, stooping and repetitive bending, as these activities will aggravate his
condition.
In a report dated September 13, 2007, Dr. Jeffrey Frenchman, a podiatrist, diagnosed
exostosis, helloma molle, hammertoe, hallux valgus and pes planus. He opined that the flat foot
condition was contributing to the callous, hammertoe and bunion conditions, and that appellant
would experience increased pain with prolonged walking and standing.
By decision dated November 29, 2007, the Office reviewed the case on its merits. The
Office found the evidence was insufficient to warrant modification of the prior decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;

1

Helloma molle is a soft callus or corn between the toes.

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
In the present case, appellant appears to be alleging that his federal employment as a mail
processing clerk aggravated preexisting degenerative spine, knee and hip conditions, as well as
foot conditions such as pes planus and helloma molle. On appeal, he notes that he has a VA
disability, and feels the Office did not properly take this into account. A decision regarding
appellant’s entitlement to benefits from the VA does not establish entitlement to compensation
benefits. The findings of other administrative agencies have no bearing on proceedings under
the Act, which is administered by the Office and the Board.8 Appellant also indicated that he
had a prior claim for injury on April 22, 1991 and appeared to assert the current claim was a
recurrence of disability. If he is claiming that repetitive job duties aggravated his condition, then
he properly filed a claim for a new injury.9
It is, as noted above, appellant’s burden to submit the necessary medical evidence to
establish the claim. There must be medical evidence with a complete and accurate history, a
diagnosis and a rationalized medical opinion on causal relationship between the diagnosed
condition and the identified employment factors. There is no rationalized medical evidence of
record. Dr. Brown-Johnson indicated that appellant should avoid certain activities as they would
aggravate his degenerative condition, without providing a rationalized medical opinion on causal
relationship between federal employment and a diagnosed condition. Dr. Frenchman reported
that appellant would probably experience increased pain with prolonged walking and standing,
but he does not provide a medical opinion relating a diagnosed condition to federal employment.
In the absence of probative medical evidence on causal relationship, the Board finds appellant
did not meet his burden of proof in this case.
4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

See James Robinson, Jr., 53 ECAB 417 (2002); Burney L. Kent, 6 ECAB 378 (1953).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997).

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CONCLUSION
Appellant did not submit sufficient medical evidence to meet his burden of proof to
establish an injury causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 29 and June 6, 2007 are affirmed.
Issued: August 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, WESTERN NASSAU
P & DC, Garden City, NY, Employer
__________________________________________

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

Docket No. 07-1771
Issued: February 12, 2008

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 June 20, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated November 8, 2006 that terminated her compensation
benefits and an April 12, 2007 decision that denied her 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 the Office met its burden of proof to terminate appellant’s
compensation benefits on November 8, 2006 on the grounds that her disability was no longer
employment related; and, (2) whether it properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On March 27, 2005 appellant, then a 55-year-old distribution clerk, sustained injury to
her neck when she hit it against a cart as she pushed her chair back. She stopped work that day.1
Appellant was treated at an emergency room where x-rays of the thoracic spine demonstrated no
evidence of fracture or subluxation. Cervical spine x-rays revealed no evidence of fracture and
Grade I retrolisthesis of C5 on C6 with narrowing of the intervertebral disc at multiple levels.
Contusion of the upper back was diagnosed. On June 23, 2005 the Office accepted that appellant
sustained an employment-related cervical sprain/strain. She was placed on the periodic rolls. A
June 2, 2005 magnetic resonance imaging (MRI) scan of the cervical spine was limited due to
excessive motion but demonstrated a small right disc herniation at C4-5 that did not compress
the cervical cord.
Appellant came under the care of Dr. David C. Silverstein, Board-certified in orthopedic
surgery, who submitted reports dated April 9 to October 26, 2005. Dr. Silverstein noted the
history of injury, appellant’s complaints of pain and the MRI scan findings. He diagnosed
herniated cervical disc, cervical radiculitis and cervical sprain as a result of the March 27, 2005
injury. Dr. Silverstein advised that appellant was totally disabled. In a July 25, 2005 report,
Dr. Paul Lerner, a Board-certified neurologist, noted a history that appellant fell backwards on a
chair, injuring her neck. She complained of neck pain radiating into her left arm and hand.
Following physical examination, he diagnosed cervical disc herniation associated with
radiculopathy affecting the left upper extremity and opined that this was caused by the March 27,
2005 employment injury. Electromyography (EMG) on August 8, 2005 was suggestive of
radiculitis at C4-6 with electrodiagnostic evidence of bilateral median nerve slowing across the
wrists. In an October 10, 2005 treatment note, Dr. Lerner diagnosed disc herniation with
radiculopathy and carpal tunnel syndrome.
On October 27, 2005 the Office referred appellant to Dr. David A. Benatar, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a November 22, 2005 report,
Dr. Benatar noted the history of injury, appellant’s complaints and his review of the medical
record, including the June 2, 2005 MRI scan. Following physical examination, he diagnosed a
cervical strain/sprain that occurred on March 27, 2005. Dr. Benatar advised that there was no
objective evidence to support a diagnosis of radiculopathy or myelopathy and no evidence of
permanent impairment, noting that the MRI scan was “near negative” with no significant
compressive pathology. Dr. Benatar opined that appellant should have been able to return to
work within six weeks of the employment injury and was not totally disabled. He advised that
she could return to work with limitations on lifting and over-the-shoulder lifting for an additional
four to six weeks, after which appellant could return to full duty. In an attached work capacity
evaluation, Dr. Benatar advised that appellant was capable of light duty with limitations for four
to six weeks on reaching, twisting, bending and stooping and a 20-pound weight restriction.
On April 17, 2006 the Office again referred appellant to Dr. Benatar for examination. In
reports dated May 2, 2006, he again diagnosed cervical strain/sprain and opined that the small
1

The record indicates that appellant had been on limited duty for a number of years for a prior low back injury
that occurred on November 12, 1986, adjudicated by the Office under file number 020565065. The instant case was
adjudicated under file number 022501097.

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disc herniation found at C4-5 did not correlate with appellant’s symptoms, noting that there were
multiple levels of degenerative changes also shown on the MRI scan. Dr. Benatar reiterated that
appellant could return to light duty with physical restrictions. Dr. Silverstein submitted
additional reports reiterating his findings, diagnoses and conclusion that appellant was totally
disabled.
The Office found that a conflict in medical opinion arose between the opinions of
Dr. Silverstein and Dr. Benatar regarding whether appellant’s current condition was caused by
the employment injury. It referred her to Dr. Jerrold M. Gorski, Board-certified in orthopedic
surgery, for an impartial evaluation.2 In an August 29, 2006 report, Dr. Gorski reported that
appellant described the employment injury as a fall from a chair. He noted her previous medical
treatment and his review of the medical record, including MRI scan findings and her complaints
of pain. Physical examination of the neck and upper extremities demonstrated a resting tremor
and limitations of neck range of motion with no focal motor or sensory deficits of the upper
extremities. Dr. Gorski diagnosed cervical arthritis at multiple levels and advised that the
March 27, 2005 injury resulted in a temporary aggravation of underlying arthritis which had
ceased. He advised that her current complaints were entirely due to the underlying arthritic
condition which was present in multiple parts of her body. Dr. Gorski advised that it was
unlikely that appellant would return to work due to the nonemployment-related arthritis and
benign essential tremor, noting that as she aged, her arthritis would worsen and she would
experience more pain; however, this was not caused by the employment injury.
On September 1, 2006 Dr. Silverstein reiterated his findings. On September 5, 2006
appellant had a consultation for pain management.
By letter dated October 3, 2006, the Office proposed to terminate appellant’s
compensation benefits on the grounds that Dr. Gorski, who provided an impartial medical
evaluation, advised that the March 27, 2005 cervical strain/sprain had resolved. On October 13,
2006 appellant disagreed with the proposed termination and advised that she had formerly been a
patient of Dr. Benatar’s father.
In a decision dated November 8, 2006, the Office finalized the proposed termination.
On March 16, 2007 appellant, through her attorney, requested reconsideration. She
contended that she sustained extensive injuries on March 27, 2005 and that referral for the
second opinion evaluation and referee examination exceeded the bounds of reasonableness.
Dr. Benatar’s report was insufficient to establish a conflict in medical evidence and that
Dr. Gorski’s report was not supported by medical reasoning. In an October 16, 2006 treatment
note, Dr. Lerner noted his review of the medical record, including the MRI scan findings.
Physical examination demonstrated restricted neck motion. He advised that the March 27, 2005
work injury caused a cervical strain and disc herniation and radiculitis when appellant’s chair fell
backwards and opined that she could not return to work. In a November 20, 2006 report,
Dr. Silverstein noted the history of injury and that appellant came under his care on
April 14, 2005. He reviewed his examination findings and treatment regimen and advised that
2

Dr. Benatar and Dr. Gorski were provided with a statement of accepted facts, a set of questions and the medical
record.

3

on October 30, 2006 appellant remained in chronic pain and remained totally disabled for any
work at the employing establishment. Dr. Silverstein concluded that on March 27, 2005
appellant sustained an injury to her neck resulting in cervical sprain, cervical radiculitis and
herniated cervical disc and in a January 11, 2007 report, reiterated his findings and conclusions.
In a December 1, 2006 report, Dr. Lerner noted his review of additional medical evidence
including the reports of Dr. Benatar and Dr. Gorski. He noted that appellant also had a lower
back condition and carpal tunnel syndrome with examination findings of restricted neck motion
and significant impairment in the use of the left upper extremity and advised that appellant
suffered from a chronic cervical strain and radiculopathy/radiculitis affecting the left upper
extremity which was associated with a cervical spine disc herniation. Dr. Lerner opined that
there was no evidence of any preexisting condition responsible for these conditions which were
caused by the March 27, 2005 employment injury. He concluded that, while appellant was
totally disabled, additional palliative treatment was reasonable.
By decision dated April 12, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the argument and evidence submitted were insufficient to
warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.3 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4
Section 8123(a) of the Federal Employees’ Compensation Act5 provides that, if there is
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 -- ISSUE 1
The Board notes that, in an October 13, 2006 letter, appellant stated that she had
previously been seen by Dr. Benatar’s father which led to bias on the part of Dr. Benatar.
Appellant did not raise this argument until the proposed termination, section 8123(a) authorizes
the Office to require an employee who claims disability as a result of an employment injury to
undergo such physical examination as it deems necessary.7 The determination of the need for an
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Id.

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8123(a).

7

Id.

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examination, the type of examination, the choice of locale and the choice of medical examiners
are matters within the province and discretion of the Office. The only limitation on this authority
is that of reasonableness.8 The Office procedures for selecting a physician to perform a second
opinion examination do not preclude medical specialists who may have previously ministered to
a claimant or performed a fitness-for-duty evaluation for a federal agency other than the
employing establishment.9 The record before the Board does not contain any medical reports
from Dr. Benatar’ father and appellant has not provided support for her assertion that Dr. Benatar
was biased or behaved unprofessionally.10 Her assertion is therefore without merit.
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation effective November 8, 2006. The Office determined that a conflict in the medical
evidence arose between the opinions of Dr. Benatar, an orthopedic surgeon, who provided a
second opinion evaluation and Dr. Silverstein, an attending orthopedic surgeon, regarding
whether her accepted conditions had resolved. The Office properly referred appellant to
Dr. Gorski, Board-certified in orthopedic surgery, for an impartial evaluation.11 In a
comprehensive report dated August 29, 2006, Dr. Gorski reported that appellant described the
employment injury as a fall from a chair. He noted her previous medical treatment and his
review of the medical record including MRI scan findings and appellant’s complaints of pain.
Physical examination of the neck and upper extremities demonstrated a resting tremor and
limitations of neck range of motion with no focal motor or sensory deficits of the upper
extremities. Dr. Gorski diagnosed cervical arthritis at multiple levels and advised that the
March 27, 2005 injury resulted in a temporary aggravation of the underlying arthritis. He opined
that the temporary aggravation had ceased and appellant’s current complaints were entirely due
to the underlying arthritic condition which was present in multiple parts of her body. Dr. Gorski
advised that it was unlikely that appellant would return to work due to the nonemploymentrelated arthritis and benign essential tremor, noting that as she aged, her arthritis would worsen
and she would have more pain but that this was not caused by the employment injury.
Appellant submitted a September 1, 2006 report in which Dr. Silverstein reiterated his
opinion that appellant’s herniated cervical disc and radiculitis were caused by the March 27,
2005 employment injury and that she was totally disabled. However, he was on one side of the
conflict in medical evidence resolved by Dr. Gorski. An additional report from a claimant’s
physician, which essentially repeats earlier findings and conclusions, is generally insufficient to
overcome the weight accorded to an impartial medical specialist’s report.12
The Board finds that, as Dr. Gorski provided a comprehensive, well-rationalized
evaluation in which he clearly advised that any residuals of appellant’s March 27, 2005
8

Bobbie F. Cowart, 55 ECAB 746 (2004).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical Examinations, Second Opinion Examinations,
Chapter 3.500.3.b (March 1994); see John Watkins, 47 ECAB 597 (1996).
10

See Atanacio G. Sambrano, 51 ECAB 557 (2000).

11

Id.

12

See Roger G. Payne, 55 ECAB 535 (2004).

5

sprain/strain of the cervical region had resolved and that her current condition was caused by
preexisting arthritis which was not employment related, his report is entitled to the special
weight accorded an impartial examiner and therefore constitutes the weight of the medical
evidence.13 The Office therefore met its burden of proof to terminate appellant’s compensation
benefits on November 8, 2006.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.14 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).15 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (i) shows that the
Office erroneously applied or interpreted a specific point of law; or (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.16 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.17
ANALYSIS -- ISSUE 2
The Board finds that the Office improperly denied appellant’s request for a merit review
pursuant to section 8128(a) of the Act. In denying her request for reconsideration, the Office
found and the Board agrees that her attorney’s arguments did not show that the Office
erroneously interpreted a point of law or advanced a legal argument not previously considered by
the Office. Consequently, appellant was not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(2).18
The Board, however, finds that, appellant submitted new and relevant evidence not
previously considered by the Office. Since the Office met is burden of proof to terminate
appellant’s compensation benefits on November 8, 2006, the burden shifted to appellant to
establish that she had disability causally related to her accepted injury after that date.19 To
13

See Sharyn D. Bannick, 54 ECAB 537 (2003).

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.608(a).

16

20 C.F.R. § 10.608(b)(1) and (2).

17

20 C.F.R. § 10.608(b).

18

20 C.F.R. § 10.606(b)(2).

19

See Manuel Gill, 52 ECAB 282 (2001).

6

establish a causal relationship between the condition, as well as any attendant disability claimed
and the employment injury, an employee must submit rationalized medical evidence, based on a
complete factual and medical background, supporting such a causal relationship.20 With her
March 16, 2007 reconsideration request, appellant submitted additional medical evidence,
including reports dated October 16 and December 1, 2006 in which Dr. Lerner noted his review
of the medical record, including the MRI scan findings and the reports of Dr. Benatar and
Dr. Gorski. He provided physical findings, advised that the March 27, 2005 work injury caused
a cervical strain and disc herniation and concluded that appellant was totally disabled. In reports
dated November 20, 2006 and January 11, 2007, Dr. Silverstein advised that on October 30,
2006 appellant remained in chronic pain and remained totally disabled for any work at the
employing establishment. He concluded that appellant’s diagnoses of cervical sprain, cervical
radiculitis and herniated cervical disc were caused by the March 27, 2005 employment injury.
The Board therefore finds that appellant submitted new and relevant evidence not
previously considered by the Office. The case will be remanded to the Office for a decision on
the merits of whether she had any continuing disability due to the accepted cervical
strain/sprain.21
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on November 8, 2006. The Office improperly denied her request for a
merit review pursuant to section 8128(a) of the Act.

20

Id.

21

Annette Louise, 54 ECAB 783 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 8, 2006 be affirmed. The decision dated April 12,
2007 is vacated and the case remanded to the Office for proceedings consistent with this decision
of the Board.
Issued: February 12, 2008
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1527
Issued: March 29, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a March 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence to OWCP following the March 24, 2020 decision.
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.

ISSUE
The issue is whether appellant has met his burden of proof to establish expansion of the
acceptance of his claim to include bilateral carpal tunnel syndrome, bilateral knee arthritis, and
internal derangement of the right knee.
FACTUAL HISTORY
On November 9, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2010 he sustained low back and right knee
injuries when loading a postal container onto a truck while in the performance of duty. He
explained that the truck pulled away without warning, causing the container to roll backward.
Appellant stopped work on November 3, 2010. On November 4, 2010 he received treatment in a
hospital emergency department.
In a November 13, 2010 report, Dr. F. Kennedy Gordon, Board-certified in internal and
sports medicine, provided a history of injury and treatment. He noted that appellant under went
arthroscopic right meniscal repair in January 2010. Dr. Gordon diagnosed right-sided cervical
strain, right superior trapezius strain, paralumbar sprain/strain, lower right abdominal strain, right
groin strain, right medial collateral ligament sprain, and history of right meniscal tear. 4
On November 23, 2010 OWCP accepted the claim for lumbar, thoracic, and cervical spine
sprains, sprain of the right lateral collateral ligament, and a groin sprain. 5 It paid appellant wageloss compensation on the supplemental rolls commencing December 26, 2010 and on the periodic
rolls commencing September 25, 2011.6
On July 1, 2011 OWCP referred appellant for a second opinion evaluation and report from
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon. In a July 22, 2011 report, Dr. Lakin
opined that the accepted right knee injury remained active. He recommended right knee
arthroscopy.
On July 7, 2013 appellant returned to modified duty as a mail handler for two hours a day.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls
commencing July 7, 2013.
In an August 1, 2013 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
reviewed a history of injury and treatment. He noted a January 2010 right knee arthroscopy prior
to the accepted injury and a 2003 nonoccupational left knee arthroscopy. On examination,
Dr. Filippone noted: bilaterally-positive Tinel’s and Phalen’s signs over the median nerve at the
wrists; diminished pinprick sensation in the right thumb, index, and middle fingers; decreased
4

Dr. Gordon provided periodic reports dated from December 6, 2010 through May 31, 2013 noting continued right
medial collateral ligament pain and a right meniscal tear requiring surgical repair. A December 30, 2010 magnetic
resonance imaging (MRI) scan of the right knee demonstrated prior meniscal surgery, tear or retear of the posterior
horn, joint effusion, chondromalacia of the patella, diffuse thickening of the patellar tendon, spurring of the p atellar
poles, and a posterior popliteal cyst.
5

Appellant underwent right inguinal hernia repair in February 2016.

6

From June 23, 2011 through February 14, 2013, appellant underwent a series of OWCP-authorized cervical and
lumbar injections, and stereotactic radiofrequency neurotomy of the right L3, L4, L5, S1, S2, and S3 nerve roots.

2

pinprick sensation over the distal volar aspect of all five left fingers and hypothenar eminence;
limited range of motion throughout the spine; right knee swelling; an equivocally-positive drawer
sign in the right knee; and crepitation over the right medial meniscus. He diagnosed cervical and
thoracic radiculitis, right inguinal hernia. and internal derangement of the right knee. Dr. Filippone
opined that all of these diagnoses “need to be accepted by [OWCP].”7
In a September 12, 2013 report, Dr. David Deramo, a Board-certified orthopedic surgeon,
provided a history of January 2010 right knee surgery and the accepted November 3, 2010
employment injury. He diagnosed right knee pain, acute right medial meniscus tear, internal
derangement of the right knee, and patellar chondromalacia.
In a September 13, 2013 report, Dr. Filippone opined that electromyography/nerve
conduction velocity (EMG/NCV) studies of the bilateral upper extremities demonstrated bilateral
carpal tunnel syndrome. 8
Appellant stopped work on March 7, 2014 and did not return.
On June 17, 2014 Dr. Marc S. Arginteanu, a Board-certified neurosurgeon, performed
OWCP-authorized partial L5 laminectomy, partial S1 laminectomy, and L5-S1 discectomy.
By decision dated June 25, 2014, OWCP accepted a recurrence of disability and a need for
medical treatment commencing March 7, 2014. It expanded the acceptance of the claim to include
lumbosacral spondylosis without myelopathy.
By decision dated July 9, 2014, OWCP accepted another recurrence of disability effective
June 17, 2014. It authorized payment of wage-loss compensation for partial disability from
May 31 through June 16, 2014. OWCP placed appellant on the periodic compensation rolls
retroactive to June 29, 2014.
Dr. Filippone provided periodic reports dated from September 5, 2014 through June 30,
2015 diagnosing cervical, 9 thoracic, and lumbar radiculopathy; bilateral carpal tunnel syndrome
with positive Tinel’s and Phalen’s signs; and internal derangement of the right knee. He opined
that these conditions were causally related to the accepted November 3, 2010 employment injury.10
7

An August 19, 2013 MRI scan of the right knee demonstrated mild tricompartmental osteoarthritis, chronic
thickening of the medial collateral ligament and patellar tendon, persistent tear of the posterior horn of the medial
meniscus, persistent radial tear of the lateral meniscus, chondromalacia, and a popliteal cyst and a focal area of
inflammation in the superolateral aspect of Hoffa’s fat pad. August 21, 2013 MRI scans of the cervical and thoracic
spine demonstrated disc bulges at C5-6, C6-7, and C7-T1, thoracic kyphosis and spondylosis deformans, and multiple
Shmorl’s nodes in the lower thoracic region.
8

In November and December 2013 appellant underwent a series of OWCP-authorized lumbar and lumbosacral
injections.
9

A January 13, 2015 MRI scan of the cervical spine demonstrated a C4-5 broad-based posterior disc bulge, C5-6
broad-based midline disc herniation with mild spinal stenosis, board-based posterior disc bulge at C6-7, and C7-T1
asymmetric disc bulge to the right. A May 20, 2015 MRI scan of the right knee demonstrated postoperative changes
from prior partial medial meniscectomy, increased cartilage loss, and patellar tracking disorder.
10

Appellant underwent a series of OWCP-authorized epidural steroid injections from March 26 through
August 13, 2015.

3

In a June 8, 2015 report, Dr. Yaser El-Gazzar, an orthopedic surgeon, noted the onset of
right knee pain after the November 3, 2010 employment injury. On examination, he observed
crepitance of both knees. Dr. El-Gazzar diagnosed patellofemoral syndrome, a right meniscal tear,
acquired genu varum deformity, and synovitis status postemployment injury. He administered a
series of cortisone injections and prescribed a knee brace.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 2, 2015
report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon, reviewed a statement of
accepted facts (SOAF) and the medical record and noted findings on examination. He opined that
the accepted cervical spine injury caused “double crush” bilateral carpal tunnel syndrome due to
compression of cervical nerve roots superimposed on mild compression of the median nerve at the
wrists.
Dr. Filippone submitted reports dated July 31, 2015 through September 26, 2017 finding
appellant totally disabled from work due to cervical, 11 thoracic, and lumbar radiculopathy, bilateral
carpal tunnel syndrome, and internal derangement of the right knee. He op ined that these
conditions were caused by the accepted November 3, 2010 employment injury.
Thereafter, OWCP referred appellant for a second opinion report to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 6, 2017 report, Dr. Askin reviewed a SOAF
and the medical records. On examination, he observed bilaterally-positive Tinel’s sign at the wrist,
and limited active range of motion throughout the spine. Dr. Askin opined that the accepted
employment conditions had resolved without residuals. He attributed appellant’s spinal and
musculoskeletal complaints to obesity “and not consequential to the fact that he fell on
November 3, 2010.” Dr. Askin concluded that the acceptance of appellant’s claim “should not be
expanded to include any other conditions for the November 3, 2010, incident.”
In reports dated November 20, 2017, Dr. Filippone noted bilateral hand numbness
secondary to the use of a cane. 12 In reports dated December 19, 2017, he noted that both knees
were tender and effused. Dr. Filippone opined that appellant urgently required right knee
arthroscopy.
In a January 26, 2018 letter, appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include bilateral carpal tunnel syndrome, based on Dr. Henderson’s
July 2, 2015 opinion.
In a February 14, 2018 report, Dr. Paul M. Brisson, a Board-certified orthopedic surgeon,
related appellant’s complaints of increased numbness and weakness in both hands. He opined that
appellant had sustained cervical and lumbar spine injuries in the November 3, 2010 employment
incident. In a March 14, 2018 report, Dr. Brisson diagnosed bilateral radiculopathy at C5, C6, C7,
and L5-S1.

11

In an October 20, 2015 report, Dr. Filippone noted that a May 6, 2015 EMG/NCV study of the bilateral upper
extremities demonstrated right C5, C6, and C7 cervical radiculopathy and left C5-6 cervical radiculopathy.
12

A November 29, 2017 MRI scan of the right knee demonstrated status post partial lateral meniscectomy,
“[r]ecurrent tear within the posterior horn of the lateral meniscus, “[n]ew vertical tear within the body and posterior
horn” of the medial meniscus, and a small ganglion cyst.

4

OWCP found a conflict of medical opinion between Dr. Filippone, for appellant, and
Dr. Askin, for the government, regarding whether acceptance of the claim should be expanded to
include additional spinal conditions, bilateral carpal tunnel syndrome, and derangement of the right
knee, and whether appellant had continuing work-related disability or required further medical
treatment. It referred appellant, an updated statement of accepted facts (SOAF), and the medical
record to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict of opinion
as the impartial medical examiner (IME).
In a February 15, 2018 report, Dr. Carlson diagnosed resolved cervical, thoracic, and
lumbar sprains, status post lumbar discectomy, a resolved L5-S1 disc herniation, resolved right
lateral collateral ligament sprain, nonoccupational bilateral carpal tunnel syndrome, and
nonoccupational osteoarthritis of both knees.
In a June 4, 2018 report, Dr. Imran Ashraf, a Board-certified orthopedic surgeon,
diagnosed a work-related right knee injury and post-traumatic osteoarthritis. He recommended
right knee surgery.
By notice dated July 18, 2018, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as the accepted employment conditions had ceased. It afforded
him 30 days to submit additional evidence or argument.
Appellant, through counsel, contended in an August 13, 2018 statement that Dr. Carlson
provided insufficient medical rationale. He submitted reports from Dr. Filippone dated from
July 18 through August 16, 2018 reiterating previous diagnoses.
By decision dated August 29, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement of the right
knee, bilateral knee arthritis, right inguinal hernia, herniated/bulging discs of the cervical and
lumbar spine, and cervical and lumbar degenerative disc disease, based on Dr. Carlson’s opinion
as the special weight of the medical evidence.
By decision dated September 7, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, based on Dr. Carlson’s opinion as the
special weight of the medical evidence.
Appellant, through counsel timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review with regard to both the expansion and termination decisions.
During the hearing, held on February 21, 2019, counsel contended that OWCP should have
accepted bilateral carpal tunnel syndrome/double crush syndrome based on Dr. Henderson’s
July 2, 2015 opinion instead of posing the same question to Dr. Askin. He submitted additional
reports from Dr. Filippone dated September 13, 2018 through April 25, 2019, which reiterated that
the November 3, 2010 employment injuries caused bilateral carpal tunnel syndrome and internal
derangement of the right knee.
By decision dated May 8, 2019, OWCP’s hearing representative reversed the September 7,
2018 termination decision, set aside the August 29, 2018 expansion decision, and remanded the
case for additional development.

5

On remand, OWCP referred appellant, an updated SOAF, and the medical record to
Dr. Howard M. Pecker, Board-certified in orthopedic surgery and sports medicine, for an impartial
medical opinion. In an August 6, 2019 report, Dr. Pecker reviewed the medical record and SOAF.
On examination of appellant, he observed triggering of the index and long fingers of the right hand,
and a palpable medial osteophyte of the right knee. Dr. Pecker noted that there was no evidence
of carpal tunnel syndrome. He diagnosed degenerative cervical and lumbar disc disease, and
osteoarthritis of both knees. Dr. Pecker opined that all conditions present on examination were
age-related, without contribution by physical trauma. He returned appellant to full-time medium
duty.
By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day based on Dr. Pecker’s August 6, 2019 report
as the special weight of the medical evidence.
By separate decision also dated September 5, 2019, OWCP denied expansion of the
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement
of the right knee, bilateral knee arthritis, herniated/bulging cervical and lumbar discs, cervical and
lumbar degenerative disc disease, and inguinal hernia based on Dr. Pecker’s opinion as the special
weight of the medical evidence.
On September 12, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both September 5, 2019
decisions. The hearing was held on January 17, 2020.
OWCP subsequently received a July 24, 2019 report, wherein Dr. Serge Menkin, Boardcertified in physiatry and pain medicine, provided a history of injury and treatment. On
examination, he noted positive cervical, thoracic, and lumbar facet loading maneuvers, positive
Apley’s maneuver and McMurray’s sign in the right knee, and a positive right patellofemoral grind
test. He diagnosed lumbar radiculopathy, lumbar facet pain, cervicalgia, thoracic pain, and right
knee pain. Dr. Menkin reiterated these diagnoses in reports through December 18, 2019.
By decision dated March 24, 2020, OWCP’s hearing representative reversed the
September 5, 2019 termination decision. He remanded the case to obtain a supplemental report
from Dr. Pecker on whether the accepted November 3, 2010 employment injury had caused or
contributed to herniated/bulging cervical and lumbar discs, cervical and lumbar degenerative disc
disease, and right inguinal hernia. The hearing representative affirmed the September 5, 2019
denial of expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome, internal derangement of the right knee, and bilateral knee arthritis, based on
Dr. Pecker’s report as the special weight of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
13

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.14 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.15
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evid ence.16
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 17 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.18
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.19
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.20
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or IME) who shall make an
examination. 21 This is called a referee examination and OWCP will select a physician who is
14

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

15

Id.

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
17

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
18

See P.M., Docket No. 18-0287 (issued October 11, 2018).

19

D.B., supra note 14; see V.K., Docket No. 19-0422 (issued June 10, 2020).

20

B.P., Docket No. 19-1376 (issued January 4, 2021); M.O., Docket No. 18-0229 (issued September 23, 2019);
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
21

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

7

qualified in the appropriate specialty and who has no prior connection with the case.22 When there
exist opposing medical reports of virtually equal weight and rationale and the case is referred to
an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 23
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Pecker, the IME, opined in his August 6, 2019 report that appellant’s bilateral knee
conditions were age-related with no contribution from physical trauma. However, he did not
identify the conditions that necessitated the prior bilateral knee surgeries, or explain whether the
accepted right medial collateral ligament sprain would have had any effect on those degenerative
processes or caused an acute meniscal tear. Additionally, in contrast to appellant’s treating
physicians, Dr. Pecker opined that there were no objective findings of carpal tunnel syndrome. He
did not address the reports of Dr. Filippone or Dr. Henderson, which documented the presence of
bilateral carpal tunnel syndrome and supported causal relationship. As Dr. Pecker did not provide
medical rationale, his opinion requires clarification.24
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification and/or
elaboration, OWCP has the responsibility to secure a supplemental report from the exa miner for
the purpose of correcting the defect in the original opinion. 25
For the above-described reasons, the opinion of Dr. Pecker requires clarification.
Therefore, in order to address the unresolved conflict in the medical opinion evidence, the Board
will remand the case to OWCP for a supplemental opinion regarding whether OWCP should
expand its acceptance of the claim to include bilateral carpal tunnel syndrome , internal
derangement of the right knee, and bilateral knee osteoarthritis. If Dr. Pecker is unable to clarify
his opinion or if his requested supplemental report is also lacking rationale, OWCP shall refer
appellant to a new IME for the purpose of obtaining a rationalized medical opinion on the issue. 26
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

23

R.R., supra note 14; see Y.I., Docket No. 20-0263 (issued November 30, 2020); Darlene R. Kennedy, 57 ECAB
414 (2006).
24

B.P., supra note 21.

25

T.C., Docket No. 20-1170 (issued January 29, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
26

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

8

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, Platina, CA, Employer
__________________________________________

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)
)

Appearances:
Edward L. Daniel, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0851
Issued: June 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 21, 2016 appellant, through his representative, filed a timely appeal from a
September 23, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective February 8, 2015 based on his refusal of an offer of temporary suitable
employment pursuant to 20 C.F.R. § 10.500(a).
On appeal, appellant’s representative contends that the employing establishment’s
January 30, 2015 job offer was not valid because it failed to provide the specific requirements of
the position. He further contends that OWCP did not consider travel restrictions imposed by an
attending physician.
FACTUAL HISTORY
OWCP accepted that on October 19, 20123 appellant, then a 46-year-old supervisory
forestry technician, sustained a back sprain while lifting a gear bag out of a cross box from the
back of his pick-up truck at work. Appellant stopped work on October 26, 2012 and returned to
full-time modified duty on December 10, 2012.
In a May 9, 2014 medical report, Dr. Rodney T. Phillips, an attending family practitioner,
reviewed diagnostic test results and provided findings on physical examination. He diagnosed
lumbar radiculopathy, lumbar disc disease, low back pain, and herniated disc. Dr. Phillips
advised that appellant could perform modified activity with restrictions as of the date of his
examination. The restrictions included: no lifting, pushing; pulling, or carrying over 20 pounds;
no prolonged walking, standing, or sitting; no bending/stooping; and no driving for more than 20
minutes.
In a September 10, 2014 report, Dr. Phillips reiterated his diagnosis of low back pain. He
found that appellant could work four hours a day with restrictions. Dr. Phillips reiterated his 20minute driving restriction. He recommended limited continuous sitting to 20 minutes and 40
minutes total in 1 hour to 4 hours total in one shift. Continuous standing was limited to 15
minutes and 30 minutes total in 1 hour to 4 hours total in one shift. Continuous walking was
limited to 15 minutes and 30 minutes total in 1 hour to 4 hours total in one shift. The record
reflects that, from September 11 to 26, 2014, OWCP paid appellant wage-loss compensation on
the supplemental rolls for four hours daily, for a total of 52 hours.
In a September 29, 2014 report, Dr. Phillips noted that appellant wished to have
additional diagnoses added to his claim. He reiterated his diagnoses of lumbar disc disease,
lumbar radiculopathy, and low back pain and restricted appellant from reaching over shoulder
level, squatting, and kneeling, lifting, pushing, pulling, carrying, sitting, standing, walking,
bending, and stooping. Dr. Phillips placed him off work on the date of his examination. OWCP
commenced payment for temporary total disability compensation on the supplemental rolls on
September 29, 2014. Wage-loss benefits were paid pursuant to a Form CA-7 claim for
compensation submitted on appellant’s behalf by the employing establishment.

3

The Board notes that OWCP referred to October 18, 2012 as the date of injury. However, appellant’s Form
CA-1 indicates that the date of injury was October 19, 2012.

2

In an October 7, 2014 letter, OWCP advised appellant that it had received a telephone
call from his physician’s office explaining to OWCP that appellant’s lumbar disc disease and
lumbar radiculopathy was a consequence of his accepted condition. It informed him of the
deficiencies of his claim and afforded 30 days to submit additional evidence and respond to its
inquiries.
In an October 9, 2014 report, Dr. Phillips noted a history of the October 19, 2012
employment injury and appellant’s subsequent medical treatment. He indicated that his
continuing back symptoms had improved, but related that a magnetic resonance imaging scan
revealed a herniated disc at L5-S1 with two- to three-millimeter displacement of the left S1 nerve
root. Dr. Phillips related that appellant was six months out from the original onset which spoke
for some stability. He related, however, that even patients who had surgery could have
additional movement of the disc material which would cause more symptoms when they
resumed normal activities. Dr. Phillips maintained that this was a risk that appellant needed to
recognize as he resumed work. He recommended that appellant work smart and limit his risk as
much as possible. Dr. Phillips opined that appellant’s lumbar herniated disc and nerve root
impingement conditions were work related. He proposed injections to help with these
conditions. Dr. Phillips related that, if the injections were not helpful, then surgery was the only
recourse.
On November 4, 2014 OWCP referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Charles F. Xeller, a Board-certified orthopedic surgeon, for a
second opinion as to whether the proposed lumbar surgery was related to his accepted
employment injury.
In a December 5, 2014 report, Dr. Xeller provided a history of the October 19, 2012
employment injury and appellant’s medical treatment. He reported findings on examination and
provided an impression of an injury consistent with more than a back sprain/strain but, rather a
herniated disc at L4-L5. Dr. Xeller recommended acceptance of this condition as related to the
October 19, 2014 employment incident. He noted that appellant’s condition was nonresponsive
to conservative treatment. Dr. Xeller recommended a trial of epidural steroid injections and
related that if it was unsuccessful, then a discectomy was needed. He concluded that due to the
herniated disc at L4-L5, appellant could only perform sedentary work with restrictions. In a
work capacity evaluation (Form OWCP-5c), Dr. Xeller indicated that appellant was not capable
of performing his usual job, but could work eight hours a day with physical restrictions. He
recommended that appellant avoid bending, stooping, and lifting. Dr. Xeller also recommended
no squatting, climbing, engaging in repeated bending, or lifting more than 10 pounds.
On January 12, 2015 OWCP accepted appellant’s claim for lumbar disc protrusion/
herniation at L5-S1. Appellant continued to receive wage-loss compensation on the
supplemental rolls.
By letter dated January 12, 2015, OWCP requested that the employing establishment
offer appellant a light-duty position within the restrictions set forth by Dr. Xeller.
On January 30, 2015 the employing establishment offered appellant a temporary lightduty sedentary position as a supervisory forestry technician, effective February 8, 2015, eight

3

hours a day, with a tour of duty from 8:00 a.m. to 4:30 p.m. Monday through Friday based on the
restrictions found by Dr. Xeller. It stated that the position was being offered during his period of
recovery until his physician fully releases him for his date-of-injury position. Restrictions for the
position included avoiding bending, stooping, and lifting and no squatting, climbing, repetitive
bending, or lifting more than 10 pounds. Physical requirements of the position were sitting,
walking, standing, reaching, reaching above the shoulder, twisting, operating a motor vehicle at
work and to and from work, repetitive wrist and elbow movements, pushing, pulling, and
kneeling.
Duties of the position included developing and tracking training on the unit, developing
the annual District Fire Preparedness Review Plan, and administrative tasks within an assigned
office consisting of answering telephones, taking messages, filing, updating records, recording
data, data entry, copying, printing, computer updates, and the revision of the District Safety Plan.
Additional duties included jobs as assigned within restrictions such as driving, attending local
meetings, and assisting with local training course presentations. The employing establishment
informed appellant that his assigned duties would come from the reporting office at Harrison
Gulch Ranger Station in Platina, California, and his duties would be accomplished at Hayfork
District Office in Hayfork, California.
On February 5, 2015 appellant declined the position. He stated that the drive from his
residence to Harrison Gulch Ranger Station was 53.82 miles one way or 1 hour and 10 minutes
based on MapQuest.com.4 Appellant related that he would have to drive an additional 27.12
miles or 42 minutes to the Hayfork District Office based on the same internet-based service.5 He
asserted that his commute exceeded his attending physician’s 20-minute driving restriction.
In a February 2, 2015 Form OWCP-5c, Dr. Phillips found that while appellant could not
perform his usual job, he could perform sedentary work, eight hours a day with restrictions. He
could sit, stand, and walk, eight hours a day. Dr. Phillips restated his bending, stooping,
squatting, kneeling, reaching, and 20-minute driving restrictions. He advised that appellant
could not carry or lift more than 10 pounds. In a February 2, 2015 narrative report, Dr. Phillips
reiterated his prior diagnoses of low back pain, lumbar disc disease, and lumbar radiculopathy.
He released appellant to return to modified activity with restrictions on February 9, 2015. The
restrictions included no pushing or pulling more than 10 pounds. Dr. Phillips restated appellant’s
sitting, standing, and walking restrictions.
On February 23, 2015 appellant filed a claim for compensation (Form CA-7) for leave
without pay (LWOP) from February 8 to 21, 2015.
In a March 4, 2015 letter, OWCP advised appellant that it had reviewed the temporary
light-duty job offer by the employing establishment and found it to be within the restrictions set
4

Appellant supplied OWCP with a change of address on August 4, 2014. According to a recent search at
www.MapQuest.com, the distance from appellant’s address of record to the Harrison Gulch Ranger Station is 53.1
miles with an estimated travel time of one hour and two minutes.
5

According to another recent search at www.MapQuest.com, the distance from the Harrison Gulch Ranger
Station to the Hayfork District Office is 28.8 miles with an estimated travel time of 45 minutes.

4

forth by Dr. Xeller. It stated that Dr. Phillips’ report and Form OWCP-5c dated February 2,
2015 did not outweigh the weight accorded to Dr. Xeller who provided a well-rationalized
opinion and was better qualified as a Board-certified orthopedic surgeon. OWCP noted that
upon acceptance of the assignment, appellant would be paid compensation based on the
difference (if any) between the pay of the temporary light-duty assignment and the current pay of
his date-of-injury position.6 It discussed its regulations at 20 C.F.R. § 10.500(a) and advised
appellant that his entitlement to wage-loss compensation would be terminated under 20 C.F.R.
§ 10.500(a) if he did not accept the temporary offered assignment or provide a written
explanation of his reasons for not doing so within 30 days of the date of the letter.
On March 23, 2015 appellant informed the employing establishment that he was unable
to drive from his home to the Harrison Gulch duty station.7 He requested an assignment to a
different location, but was told there was no available work assignment out of that office.
In a March 23, 2015 report, Dr. Michael D. Jorde, a Board-certified family practitioner,
and in the same practice with Dr. Phillips, noted that appellant attempted to return to work on
that date, but he was unable to drive one and one-half hours due to back pain. He reported
findings on physical examination and diagnosed low back pain and lumbar disc disease.
Dr. Jorde concluded that appellant could perform modified work with restrictions as of the date
of his examination. The restrictions were the same restrictions, with the exception of the 20minute driving restriction, set forth in Dr. Phillips’ February 2, 2015 Form OWCP-5c and
narrative reports.
In a March 25, 2015 report, Dr. Phillips noted that appellant had a “severe lapse” from
driving one and one-half hours. He provided examination findings and reiterated his prior
diagnoses of low back pain and lumbar disc disease. Dr. Phillips advised that appellant could
perform modified work with restrictions as of March 23, 2015. In this report and a March 25,
2015 Form OWCP-5c, he reiterated appellant’s sitting and driving restrictions.
By decision dated April 6, 2015, OWCP terminated appellant’s wage-loss compensation,
effective February 8, 2015. It noted that he had not accepted the temporary light-duty
assignment, which was within his medical restrictions set forth by Dr. Xeller. OWCP further
noted that the offered assignment was for 40 hours per week with wages of $61,307.00 per year,
an amount that met or exceeded the current wages of appellant’s date-of-injury position, and that,
therefore, he would not suffer any wage loss if he accepted the assignment. It discussed its
regulations at 20 C.F.R. § 10.500(a) and advised that his entitlement to wage-loss compensation
would be terminated under 20 C.F.R. § 10.500(a) if he did not accept the offered assignment or
provide good cause for not doing so within 30 days of the date of the letter. OWCP found that,
therefore, the termination of appellant’s wage-loss compensation effective February 8, 2015 was
justified under 20 C.F.R. § 10.500(a).

6

The record reveals that the annual salary of the offered temporary light-duty assignment was $61,307.00 and the
current pay of appellant’s date-of-injury position was $60,700.00.
7

On March 24, 2015 the employing establishment informed OWCP that appellant had gone to his desired office
location rather than the office location of the offered position.

5

On April 20, 2015 appellant filed an additional claim for compensation (Forms CA-7) for
the period February 22 to April 4, 2015.
In a June 27, 2015 letter, appellant, through his representative, requested reconsideration.
He asserted that the January 30, 2015 job offer was not valid because it failed to provide the
specific requirements of the position and any special demands of the workload or unusual
working conditions. The representative further asserted that Dr. Xeller’s report did not constitute
the weight of the medical opinion evidence as he had not addressed appellant’s sitting and
driving restrictions. He also asserted that OWCP failed to request a supplemental report from
Dr. Xeller clarifying whether his restrictions were temporary or permanent.
In a decision dated September 23, 2015, OWCP denied modification of its April 6, 2015
termination decision. It again found that appellant failed to accept the temporary light-duty
assignment offered by the employing establishment which was within his medical restrictions.
OWCP also found that, therefore, the termination of appellant’s wage-loss compensation
effective February 8, 2015 was justified under 20 C.F.R. § 10.500(a).
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.8 Section 10.500(a) states that appellant is
only entitled to wage-loss compensation for the periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.9
OWCP procedures note that 20 C.F.R. § 10.500 provides the basic rules governing
continuing receipt of compensation benefits and return to work as follows:
(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him
or her from earning the wages earned before the work-related injury. For
example, an employee is not entitled to compensation for any wage-loss claimed
on a Form CA-7 to the extent that evidence contemporaneous with the period
claimed on a Form CA-7 establishes that an employee had medical work
restrictions in place; that light duty within those work restrictions was available;
and that the employee was previously notified in writing that such duty was
available. Similarly, an employee receiving continuing periodic payments for
disability was not prevented from earning the wages earned before the workrelated injury if the evidence establishes that the employing establishment had
offered, in accordance with OWCP procedures, a temporary light-duty assignment

8

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

9

20 C.F.R. § 10.500(a).

6

within the employee’s work restrictions. (The penalty provision of 5 U.S.C.
8106(c)(2) will not be imposed on such assignments under this paragraph.)”10
When it is determined that an employee is no longer totally disabled from work and is not
on the periodic rolls, OWCP procedures state that the claims examiner should determine whether
light-duty work was available within the employee’s medical restrictions during the period for
which compensation is claimed and a development letter should be sent to appellant setting forth
the standards under section 10.500(a) including medical evidence required to establish a claim
for wage-loss compensation. The claims examiner should also obtain documentation from the
employing establishment that written notification of light-duty work availability was provided to
the employee, if not already in the file.11 The claims examiner, when adjudicating the claim for
wage-loss compensation, must also determine whether the evidence of record establishes that the
employee was provided with written notification of a light-duty job assignment, that the job was
within the employee’s restrictions, and that the job was available to the employee during the
period wage-loss compensation was claimed.12
ANALYSIS
OWCP accepted that appellant sustained an employment-related back sprain and lumbar
disc protrusion/herniation at L5-S1. Appellant received disability compensation on the
supplemental rolls. On January 30, 2015 the employing establishment offered appellant a
temporary, light-duty, sedentary position as a supervisory forestry technician on a full-time basis.
The position involved developing and tracking training on a unit, developing the annual District
Fire Preparedness Review Plan, performing administrative tasks within the assigned office that
consisted of answering telephones, taking messages, filing, updating records, recording data, data
entry, copying, printing, computer updates, and plan revision such as District Safety Plan.
Additional duties included jobs as assigned within restrictions that included driving, attending
local meetings, and assisting with local training course presentations. Physical requirements of
the position were sitting, walking, standing, reaching, reaching above the shoulder, twisting,
operating a motor vehicle at work and to and from work, repetitive wrist and elbow movements,
pushing, pulling, and kneeling. Restrictions for the position included avoiding bending,
stooping, and lifting and no squatting, climbing, repetitive bending, or lifting more than 10
pounds. The position required appellant to report to the Harrison Gulch Ranger Station in
Platina, California and the Hayfork District Office in Hayfork, California to perform his work
duties. The employing establishment maintained that the duties of the position met the
restrictions provided by Dr. Xeller, a Board-certified orthopedic surgeon and OWCP referral
physician. In a December 5, 2014 report, Dr. Xeller examined appellant and found that he could
only perform sedentary work with restrictions that included no stooping, squatting, climbing,
repeated bending, or lifting more than 10 pounds. Appellant refused to accept the position and,

10

Id. at § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to
Work, Chapter 2.814.2(c)(a) (June 2013).
11

Id. at Chapter 2.814.9(b)(2) (June 2013).

12

Id.; see also Chapter 2.814.9(b)(3) (June 2013).

7

as a result, in decisions dated April 6 and September 23, 2015, OWCP terminated his wage-loss
compensation, effective February 8, 2015, under 20 C.F.R. § 10.500(a).
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
effective February 8, 2015 under 20 C.F.R. § 10.500(a). Appellant did not accept a temporary
light-duty assignment offered by the employing establishment, which was within his medical
restrictions and his vocational ability. The assignment would have paid wages that exceeded
those paid by his date-of-injury position. Therefore, the termination of appellant’s wage-loss
compensation effective February 8, 2015 was justified under 20 C.F.R. § 10.500(a).13
The Board also finds that the medical evidence of record shows that appellant could in
fact perform the temporary light-duty assignment offered by the employing establishment in
January 2015. The physical requirements of the offered temporary light-duty assignment were
within his medical restrictions as provided by Dr. Xeller in his December 5, 2014 report. The
Board notes that the medical restrictions provided by Dr. Xeller in this report constitutes the best
picture of appellant’s ability to work around the time that the employing establishment offered
him the temporary light-duty assignment. His report, which is detailed and well rationalized, is
entitled to the weight of the evidence and establishes that he has the ability to perform the
offered light-duty employment.14
Appellant contended before OWCP and on appeal that Dr. Xeller had not considered the
sitting and driving restrictions of Dr. Phillips, his attending family practitioner. Dr. Phillips
examined appellant and diagnosed work-related lumbar strain, lumbar radiculopathy, herniated
disc at L5-S1, and nerve root impingement at left S1. He found that appellant could perform
modified work, four hours a day with restrictions that included, among other things, no
continuous sitting for 20 minutes or 40 minutes total in one hour shift and no driving longer than
20 minutes. Dr. Phillips recommended that he recognize the risk of additional movement of disc
material, which would cause more symptoms, when he returned to work. He suggested that
appellant work smart and limit his risk as much as possible. Although Dr. Phillips suggested that
his work-related conditions necessitated the above-noted restrictions, he did not provide a clear
opinion in this regard or provide a rationalized medical opinion explaining how a work-related
condition justified such restrictions. He did not explain how specific findings on examination
and/or diagnostic testing supported this level of disability. The Board has held that a medical
opinion not fortified by medical rationale is of little probative value.15 Moreover, Dr. Phillips
attributed appellant’s need for work restrictions as a way to prevent future injury. The Board has
long held that prophylactic work restrictions do not establish a basis for wage-loss
compensation.16 A fear of future injury is not compensable under FECA.17 In addition, the
Board notes that unlike Dr. Phillips, Dr. Xeller is a specialist in the appropriate field of
13

See supra note 10.

14

See generally H.Y., Docket No. 14-0019 (issued March 24, 2014).

15

See George Randolph Taylor, 6 ECAB 986, 988 (1954).

16

K.J., Docket No. 16-0846 (issued August 18, 2016); D.N., Docket No. 14-657 (issued June 26, 2014).

17

K.J., id., Manuel Gill, 52 ECAB 282, 286 n.5 (2001).

8

medicine.18 The Board finds, therefore, that Dr. Phillips’ opinions are insufficient to establish
that appellant was physically unable to perform the duties of the offered position. Dr. Xeller’s
opinion continues to carry the weight of the medical evidence.
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 met its burden of proof to terminate appellant’s wage-loss
compensation effective February 8, 2015 based on his refusal of an offer of temporary suitable
work pursuant to 20 C.F.R. § 10.500(a).
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

Elizabeth Merriweather, Docket No. 93-1486 (issued September 15, 1994); Elmore T. Carter, Docket No.
93-2475 (issued February 23, 1994).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marquette, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2065
Issued: January 30, 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 September 11, 2006 appellant filed a timely appeal from the July 14, 2006 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative affirming the
denial of his claim for benefits. Under 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 met his burden of proof to establish a right foot
condition causally related to his federal employment.

FACTUAL HISTORY
On December 13, 2005 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that the stress fractures to his right foot were the result of the
standing and walking duties in his position. He first became aware of his condition on January 8,
2005 and that it was caused or aggravated by his employment activities on February 1, 2005.

The employing establishment indicated that appellant was last exposed to the conditions alleged
to have caused his medical condition on April 12, 2005 and was working limited duties.
In a letter dated January 11, 2006, the Office advised appellant that additional evidence
was needed to make a determination of whether he was eligible for benefits under the Federal
Employees’ Compensation Act. Appellant was instructed to provide factual information
pertaining to his right foot condition and medical evidence, including a comprehensive medical
report from a treating physician describing his symptoms, results of examinations and tests,
diagnosis, the treatment provided and the doctor’s opinion on the cause of his condition.
Appellant submitted a January 9, 2006 return to work/physical capacity form from a
Dr. K. Tabor1 who noted that appellant’s condition was unchanged and that he could perform
only sedentary work with no uneven surfaces.
By decision dated February 16, 2006, the Office denied the claim for compensation,
finding that the medical evidence was insufficient to establish the causal relationship of
appellant’s right foot condition to his employment duties.
On February 16, 2006 appellant requested a review of the written record. He submitted a
duplicative copy of his Form CA-2 and a June 5, 2006 return to work/physical capacity form
from Dr. Tabor who diagnosed synostosis of the right foot and placed appellant on permanent
sedentary work restrictions until his foot was surgically corrected.
By decision dated July 14, 2006, an Office hearing representative affirmed the denial of
the claim for compensation.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each compensation claim regardless of
whether the claim is predicated upon a traumatic injury and an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the

1

The physician’s credentials are not of record.

2

5 U.S.C. §§ 8101-8193.

3

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

2

presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
Generally, causal relationship may be established only by rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors.8 The opinion of the physician must
be based on a complete factual and medical background of the claimant,9 must be one of
reasonable medical certainty10 explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.11
ANALYSIS
Appellant submitted a claim for compensation alleging that his right foot condition was
due to standing and walking as a letter carrier. The employing establishment did not dispute that
appellant was engaged in such employment activities as a letter carrier and the Board finds that
the evidence establishes that appellant’s job required him to walk and stand as part of his job.
The issue to be resolved is whether appellant’s right foot condition resulted from these
employment activities. In this case, the medical evidence is not sufficient to establish the claim.
Appellant submitted work restriction reports from Dr. Tabor dated January 9 and
June 5, 2006. Dr. Tabor restricted appellant to sedentary work. The January 9, 2006 report
contained no diagnosed medical condition. Although Dr. Tabor diagnosed synostosis of the right
foot in his June 5, 2006 report, he did not address the issue of causal relationship. He failed to
explain how appellant’s job duties caused or aggravated his right foot condition As Dr. Tabor’s
reports do not address the relevant issue of causal relationship, they are of diminished probative
value.12

5

Solomon Polen, 51 ECAB 341 (2000).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Ernest St. Pierre, 51 ECAB 623 (2000).

8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

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

10

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

11

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

12

See Leslie C. Moore, supra note 8.

3

Although the Office informed appellant of the necessity of submitting a well-rationalized
medical opinion from his physician in its January 11, 2006 letter, he failed to do so. While
appellant attributes his right foot condition to his work duties, the record contains insufficient
medical opinion explaining how appellant’s work caused or aggravated his right foot condition.
The Board has held that the mere 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.13
Neither the fact that the condition became apparent during a period of employment nor
appellant’s belief that the employment caused or aggravated his condition is sufficient to
establish causal relationship.14 Casual relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
Appellant has failed to submit rationalized medical evidence establishing that his right
foot condition is causally related to factors of his federal employment. He has failed to meet his
burden of proof. The Board finds that the Office properly denied his claim for benefits under the
Act.
CONCLUSION
Appellant has not met his burden of proof in establishing that his right foot condition is
causally related to his federal employment.

13

Nicollette R. Kelstrom, 54 ECAB 570 (2003).

14

See Joe T. Williams, 44 ECAB 518, 521 (1993).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 14, 2006 is affirmed.
Issued: January 30, 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

5