United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Polk, LA, Employer
__________________________________________

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

Docket No. 13-1046
Issued: November 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2013 appellant, through her attorney,filed a timely appeal from an Office
of Workers’ Compensation Programs’ (OWCP) decision dated February 20, 2013. 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 met its burden of proof to terminate appellant’s
compensation benefits effective August 13, 2012 pursuant to 5 U.S.C. § 8106(c).
FACTUAL HISTORY
Appellant, a 41-year-old nursing assistant, injured her right ankle on June 30, 2009 when
she fell to the floor while getting out of a chair. She filed a claim for benefits, which OWCP

1

5 U.S.C. § 8101 et seq.

accepted for right ankle fracture and nonunion of right ankle fracture. Appellant received
compensation for temporary total disability.
On June 14, 2010 appellant underwent right foot bone graft surgery to repair the distal
fibula. The procedure was performed by Dr. J. David DeLapp, Board-certified in orthopedic
surgery.
In a January 4, 2012 report, Dr. Michael Dole, Board-certified in internal medicine,
advised that appellant had chronic pain syndrome. Appellant experienced chronic right ankle
pain with a history of ankle fracture. Dr. Dole advised that she had been released to return to
work at light to sedentary duty. He advised that Dr. Oghale Eleyae, a specialist in podiatry,
ordered a pad or ankle/foot arthosis for her right foot to ameliorate an antalgic gait.
Dr. Dolestated that this was reasonable and would improve her ability to walk.
In a February 4, 2012 report, Dr. Eleyae noted appellant’s history of right foot pain and
trauma. Appellant developed arthritis in her right ankle and experienced sharp and burning pain
with walking. Dr. Eleyae stated that shealso had chronic regional pain syndrome. Appellant was
restricted to a desk chair but still complained of pain and swelling to her right foot and ankle
after sitting for long periods. Dr. Eleyae advised that she would not be able to continue working
at light-duty limitations. He recommended that appellant be referred to her primary care
physician for a disability evaluation.
In order to determine appellant’s current condition and work capacity, she was referred to
Dr. John P. Sandifer, Board-certified in orthopedic surgery. In a report dated February 14, 2012,
Dr. Sandifer stated that she had continued complaints of right foot and ankle pain with numbness
and had developed reflex sympathetic dystrophy. Appellant also had additional surgery for
extensive tendon repair. Dr. Sandifer advised that she had a history of a fractured right shoulder,
secondary to a fall.
Dr. Sandifer found that appellant was not able to return to her employment as a nursing
assistant, but she could work at a limited sedentary job. He outlined restrictions of no standing
for more than 15 to 20 minutes at a time or more than 2 hours in an 8-hour day. Dr. Sandifer
asserted that appellant needed to elevate her foot and ankle frequently, during the day. In a work
capacity evaluation accompanying his report,headvised that she could workeight hours a day
with intermittent sitting for no more than four hours a day; walking, standing and lifting not
exceeding five pounds for no more than one-hour a day; pushing and pulling not exceeding five
pounds for no more than two hours a day; and no bending, stooping, squatting, kneeling or
climbing.
On March 9, 2012 appellant advised the employing establishment that she was
requestingleave without pay because of a right shoulder greater tuberosity fracture and in light of
Dr. DeLapp’s work restrictions. She stated that she would be off work for two to three months
and might require surgery.
On March 14, 2012 Dr. DeLapp agreed with Dr. Sandifer’s opinion that appellant could
work an eight-hour day within the listed restrictions, for one year.

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On March 30, 2012 the employing establishment offered appellant a job as a modified
nursing assistant based on the restrictions of Dr. Sandifer and as approved by Dr. DeLapp. The
job entailed calling patients to verify appointments; taking vital signs while sitting down or
intermittently standing up; advising patients of their appointment time; advising patients to
reschedule appointments if they cancelled; providing patients with the appointment line number
to reschedule appointments; bringing specimens to the lab twice a day; communicating closely
with providers and coworkers; attending a four-hour BLS class; intermittently weighing adult
patients by having them step on a scale and using a computer with her left hand and arm only.
The employing establishment indicated that appellant would be provided with a foot stool to
elevate her right ankle and would be permitted to intermittently stand up and move around as
needed.
On March 30, 2012 appellant accepted the modified job offer.
In an April 5, 2012 report, Dr. DeLapp stated that appellant still had pain and swelling in
her right ankle but felt much better. Appellant’s condition was essentially the same and had
stabilized since her distal fibula procedure. Dr. DeLapp related that her supervisors believed that
she could continue to perform light duty, though she did not think they had made any
accommodations for her. He advised thatappellant was under the influence of prescription
narcotics and felt very distraught and anxious about her multiple problems, including her foot,
ankle and hip.
Dr. DeLapp advised that x-rays of her right ankle showed a well-healed distal fibula
previous nonunion, with intact hardware, no evidence of loosening and no acute bony
abnormalities. Appellant had a negative bone scan for complex regional pain syndrome.
Dr. DeLapp advised that she could continue at light duty pursuant to the functional capacity
evaluation submitted with his report. In a Form CA-17he set forth restrictions of intermittent
simple grasping and fine manipulation for four hours a day; intermittent sitting, standing and
walking for no more than four hours a day; intermittent bending, stooping twisting, pulling,
pushing and reaching above her shoulder for no more than one hour a day and intermittent lifting
not exceeding 10 pounds for no more than one hour a day.
In a memorandum dated May 17, 2012, the employing establishment advised that
appellant had accepted the modified nursing assistant’s job offer on March 30, 2012 and worked
that day. On April 3, 2012; however, appellant contacted her supervisor and requested that she
be placed in a leave without pay status.
By letter dated June 6, 2012, OWCP advised the claimant that the offered position was
suitable, advised her of the sanctions for abandoning suitable work and allowed her 30 days to
reply.
On July 6, 2012 OWCP advised appellant that the modified nursing assistant job was
suitable and that, pursuant to section 8106(c)(2), she had 15 days to either return to the job or
provide a reasonable explanation for refusing the offer; otherwise her entitlement to
compensation benefits would be terminated. Appellant did not respond.

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By decision dated August 13, 2013, OWCP terminated appellant’s compensation benefits
on the grounds that she abandoned suitable work. It found that the position offered by the
employing establishment was within her treating physician’s prescribed work restrictions. The
medical evidence established that appellant was capable of performing the modified nursing
assistant’s job. It also noted that she had been afforded the requisite 15-day notice and
opportunity to comply with 5 U.S.C.§8106(c).
By letter dated August 23, 2012, counsel requested an oral hearing, which was held on
December 7, 2012. Appellant testified that she returned to work after being on disability for two
to three months due to a nonwork-related right shoulder fracture.Although she accepted the job,
she asserted that she was unable to workdue to pain in her right foot, leg and hip and right
shoulder. Appellantcontended that reflex sympathy dystrophy affected her ability to work. She
stated that she had become addicted to pain medication which had affected her mental condition
and her ability to drive.
Following the hearing the employing establishment submitted a January 9, 2013
statement fromYvonne Johnson, an injury compensation specialist, who stated that on March 30,
2012 appellant was afforded the opportunity to return to work within restrictions provided by her
treating physicians and by Dr. Sandifier, the referral physician. Appellant returned to work for
one day and then requested that her supervisor place her in a leave without pay status in order to
complete a course of physical therapy. With regards to the right shoulder injury referenced by
appellant at the hearing, Ms. Johnson stated that management was initially made aware of it on
February 16, 2012, the day prior to a previously scheduled light duty return to work. Following
a period of shoulder-related disability, appellant was offered modified duty on March 9, 2012.
Ms. Johnson noted that appellant accepted the job but then requested to be placed in a leave
without pay status due to her shoulder injury. Finally, she asserted that appellant was given
multiple opportunities to report for the modified job and that transportation options such as an
agency vanpool were available to assist her in getting to and from work.
By decision dated February 20, 2013, OWCP’s hearing representative affirmed the
August 13, 2013 decision.
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”2
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.3 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.4 To justify termination, OWCP must show that the
2

Id. at § 8106(c).

3

Joyce M. Doll, 53 ECAB 790 (2002).

4

20 C.F.R. § 10.517(a).

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work offered was suitable and that appellant was informed of the consequences of her refusal to
accept such employment.5 In determining what constitutes “suitable work” for a particular
disabled employee, OWCP considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.6 Section 8106(c) will be
narrowly construed as it serves as a penalty provision which may bar an employee’s entitlement
to compensation based on a refusal to accept a suitable offer of employment.7
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.8 It is well established that OWCP must consider preexisting and subsequently
acquired conditions in the evaluation of suitability of an offered position.9
ANALYSIS
OWCP terminated appellant’s monetary compensation effective August 13, 2013 on the
grounds that she refused a March 30, 2012 offer of suitable work. It found that the weight of the
medical evidence established that the modified nursing assistant’s position was within the
physical restrictions set forth by Dr. Sandifer, the referral physician and by Dr. DeLapp her
treating physician. The restrictions were incorporated into the March 30, 2012 job offer. The
position description described the duties and physical requirements of the offered position, and
Dr. DeLapp indicated that the offered position was reasonable and acceptable. While appellant
asserted that pain from her nonwork-related right shoulder condition and her reflex sympathy
dystrophy condition prevented her from performing the position, she submitted no medical
evidence to establish that she was disabled from performing the duties of the modified job due to
her shoulder condition. While she asserted at the hearing that she quit working after one day due
to the effects of her right ankle and right shoulder conditions, she submitted no factual or
medical evidence to support her assertion. The only contemporaneous medical evidence consists
of the April 5, 2012 report from Dr. DeLapp, a treating physician, who examined appellant and
noted her complaints of right ankle and right hip pain but found that she was able to perform the
light-duty job as long as she adhered to her prescribed medical restrictions. Dr. DeLapp opined
that appellant’s right ankle had healed since his June 2010 fusion procedure and that her
condition was essentially stable and manageable. He did not address any disability due to
shoulder pain. Dr. DeLapp further stated that a bone scan had ruled out a diagnosis of reflex
sympathy dystrophy. OWCP properly determined that the job it offered appellant on June 6,
2012 was suitable and within her physical capabilities.

5

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
6

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

7

Gloria G. Godfrey, 52 ECAB 486 (2001).

8

Gayle Harris, 52 ECAB 319 (2001).

9

Richard P. Cortes, 56 ECAB 200 (2004).

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After OWCP established that the offered work was suitable, the burden shifted to
appellant to show that her refusal was reasonable or justified.10 Appellant testified at the hearing
that her right ankle, right shoulder and reflex sympathy dystrophy conditions prevented her from
performing the modified nursing assistant’s job. On April 5, 2012 Dr. DeLapp found that she
was capable of performing light duty within her restrictions. The Board finds that appellant
failed to establish that the offered position was unsuitable. Appellant’s assertion that her right
ankle, right shoulder and reflex sympathy dystrophy conditions prevented her from performing
her job duties on March 30, 2013 is not supported by probative medical opinion. She has not
provided evidence sufficient to establish that the job offered to her required performance of any
duties beyond the work restrictions imposed by her physicians.
An employee who refuses or neglects to work after suitable work has been offered has
the burden of showing that such refusal to work was justified.11 Appellant has not submitted any
medical evidence indicating that her refusal to accept the March 2012 modified job offer was
reasonable or justified. Accordingly, she has failed to meet her burden to provide evidence
sufficient to warrant modification of the August 13, 2012 termination decision. The Board finds
that OWCP properly terminated appellant’s monetary compensation due to her refusal of suitable
work and that she did not thereafter establish that her refusal of suitable work was justified. The
February 20, 2013 decision of OWCP’s hearing representative is affirmed.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
pursuant to 5 U.S.C. § 8106(a).

10

M.S., Docket No. 06-797(issued January 31, 2007).

11

5 U.S.C. § 8106(c)(2)

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ORDER
IT IS HEREBY ORDERED THAT the February 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, AIRPORT MAIL
FACILITY, New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1649
Issued: March 9, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2010 appellant filed a timely appeal from a December 17, 2009 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly found that appellant refused an offer of suitable
work under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On February 4, 2005 appellant, then a 41-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she sustained neck and shoulder injuries from lifting mail on
January 21, 2005. On July 12, 2005 the Office accepted the claim for cervical radiculopathy and
left shoulder sprain/strain. Appellant received compensation for wage loss as of March 25, 2005.
The Office referred appellant for a second opinion evaluation by Dr. Surendrapal Mac, an
orthopedic surgeon. In a report dated August 9, 2006, Dr. Mac provided results on examination

and found that her cervical and shoulder strains had resolved. He opined that appellant had
cervical spondylosis, which he found more likely than not was aggravated by the work injury. In
a supplemental report dated December 22, 2006, Dr. Mac stated that she had a permanent
aggravation of cervical spondylosis from the work injury.
Appellant returned to work in a light-duty position on April 21, 2007. She filed a notice
of recurrence of disability commencing May 7, 2007. The claim was accepted and appellant
again received compensation for wage loss.
On October 12, 2007 the Office referred appellant, together with medical records and a
statement of accepted facts, to Dr. P. Leo Varriale, an orthopedic surgeon. In a report dated
November 19, 2007, Dr. Varriale reviewed a history of injury and results on examination. He
noted that appellant had a history of neck pain since 1998. Dr. Varriale diagnosed resolved left
shoulder and cervical strains, with preexisting cervical degenerative disc disease and no signs of
cervical radiculopathy. He opined that appellant had recovered from the accepted employmentrelated conditions and could work with a five-pound lifting restriction due to the degenerative
disc disease.
In a Form CA-20 report dated November 13, 2007, the attending physiatrist, Dr. Jean
Claude Demetrius, advised that appellant remained totally disabled. Appellant also submitted a
February 14, 2001 report from Dr. Joseph Gregorace, an osteopath, discussing a November 21,
1998 employment injury. The diagnoses included a traumatic C5-6 disc herniation.
The Office determined that a conflict in the medical opinion arose between Dr. Varriale
and Dr. Demetrius. Appellant was referred to Dr. Sounder Eswar, a Board-certified orthopedic
surgeon selected as a referee physician. In a report dated March 10, 2008, Dr. Eswar provided a
review of appellant’s history of lung and medical treatment with results on examination. He
noted that appellant had sustained a lifting injury in November 1998. Dr. Eswar opined that she
had an exacerbation of preexisting cervical radiculopathy on January 21, 2005. He stated:
“In my opinion the [appellant] has recovered fully from the accepted condition of
cervical radiculopathy and shoulder sprain from the incident at work on
January 21, 2005. Some of the [her] symptoms are a continuation of her cervical
degenerative dis[c] disease, which had been preexisting prior to the incident on
January 21, 2005.
“[Appellant] has recovered from the cervical sprain and degenerative dis[c]
disease including a sprain of the shoulder. [Her] condition has stabilized and does
not require any further medical treatment or tests. [Appellant] is not a candidate
for surgery at this time. [She] can return to modified duties with minimal
bending, twisting and lifting weights less than 20 [pounds]. [Appellant] can work
[eight] hours per day with no significant difficulty.”
Dr. Eswar concluded that appellant was likely to have symptoms from her wellestablished degenerative disc disease since 1998.

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On July 21, 2008 the employing establishment offered appellant a light-duty mail handler
position. The physical requirements stated that the job was limited to 20 pounds lifting with
intermittent bending and twisting.
By letter dated July 31, 2008, the Office advised appellant that it found the offered
position to be suitable employment. It cited the provisions of 5 U.S.C. § 8106 (c)(2) and advised
that she had 30 days to either accept the position or provide reasons for refusing the offer.
On August 6, 2008 appellant submitted a June 27, 2008 report from Dr. Demetrius, who
opined that she remained totally disabled. In a letter dated August 22, 2008, she stated that she
needed more time to make a decision. The Office responded in a September 5, 2008 letter,
finding that appellant had not offered a valid reason for refusing the position. Appellant was
notified that she had 15 days to accept the position or her wage-loss compensation would be
terminated.
By decision dated October 17, 2008, appellant’s compensation was terminated on the
grounds that she had refused an offer of suitable work.
In a letter dated October 8, 2009, appellant requested reconsideration of her claim. She
argued that the Office should have expanded the accepted conditions in the case, consistent with
Dr. Mac’s opinion. Appellant argued that Dr. Varriale and Dr. Eswar had incomplete histories
and Dr. Eswar failed to explain the term “minimal” with respect to bending and twisting.
By decision dated December 17, 2009, the Office reviewed the case on its merits and
denied modification of the October 17, 2008 decision.
LEGAL PRECEDENT
5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.1 To justify such a termination, it must
show that the work offered was suitable.2 An employee who refuses or neglects to work after
suitable work has been offered to him has the burden of showing that such refusal to work was
justified.3
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that the Office must inform appellant of the consequences of refusal to accept
suitable work and allow her an opportunity to provide reasons for refusing the offered position.4
If appellant presents reasons for refusing the offered position, the Office must inform the
1

Henry P. Gilmore, 46 ECAB 709 (1995).

2

John E. Lemker, 45 ECAB 258 (1993).

3

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

4

Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

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employee if it finds the reasons inadequate to justify the refusal of the offered position and afford
her a final opportunity to accept the position.5
It is well established that when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.6
ANALYSIS
Appellant’s claim was accepted for cervical radiculopathy and a left shoulder strain. The
Office found a conflict in medical opinion under 5 U.S.C. § 8123 with respect to appellant’s
disability for work.7 Dr. Demetrius, an attending physician, opined that appellant was totally
disabled, while Dr. Varriale, a second opinion physician, found that appellant could work full
time with restrictions. To resolve the conflict, appellant was referred to Dr. Eswar as an
impartial referee physician.
Dr. Eswar reviewed the history of injury and medical treatment. He addressed findings
of normal muscle strength with no sensory deficit of both shoulders or evidence of his
impingement. The cervical spine revealed no muscle spasm or evidence of radiculopathy on
compression testing. Dr. Eswar advised that appellant was extremely uncooperative on range of
motion testing of the cervical spine but found no evidence of scoliosis.
Dr. Eswar provided a complete report with an opinion that the accepted employmentrelated conditions had resolved. He noted that appellant continued to have symptoms from her
underlying degenerative cervical disc disease and he provided work restrictions of 20 pounds
lifting with minimal bending and twisting. As noted, a well-rationalized opinion from a referee
physician must be given special weight. The Board finds that Dr. Eswar’s opinion represents the
weight of the evidence with respect to appellant’s work restrictions.
The employing establishment made appellant an offer of a light-duty position based on
Dr. Eswar’s work restrictions. The position was limited to 20 pounds lifting and intermittent
bending and twisting. In accord with Office procedures, appellant was advised of the provisions
of 5 U.S.C. § 8106(c)(2) and provided an opportunity to accept the provisions or provide reasons
for refusing. She submitted a June 27, 2008 report from Dr. Demetrius, who reiterated his
opinion that she remained totally disabled. Dr. Demetrius was one side of the conflict that was

5

Id.

6

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

7

The Federal Employees’ Compensation Act provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make the examination. 5 U.S.C. § 8123(a). The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion of either a second
opinion physician or an Office medical adviser, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case. 20 C.F.R. § 10.321 (1999).

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resolved by Dr. Eswar and his report is not a valid reason for refusing the position.8 Appellant
did not offer any other specific reasons for refusing the offered job. The Office notified her
reasons were not sufficient and provided her and additional 15 days to accept the position.
On reconsideration, appellant argued that the Office should have accepted a permanent
aggravation of cervical spondylosis, based on Dr. Mac’s opinion. The Board notes that Dr. Mac
did not provide medical rationale in support of his opinion.9 Moreover, in a suitable work
determination, it is well established that the Office must consider preexisting and subsequently
acquired medical conditions.10 Dr. Eswar based his work restrictions on the underlying cervical
degenerative disc disease. The physical requirements of the offered job were specifically based
on the work restrictions provided by him, as they limited lifting to 20 pounds and limited
bending and twisting. There is no probative evidence of record that the offered position was
outside the established work restrictions.
The Board notes that on appeal, appellant does not offer any additional arguments.
Appellant refers to the October 8, 2009 reconsideration request and the arguments offered. For
the reasons noted above, the Board finds that the Office properly terminated her compensation
on the grounds that she had refused an offer of suitable work.
CONCLUSION
The Board finds that the Office properly found that appellant had refused an offer of
suitable work under 5 U.S.C. § 8106(c)(2).

8

Additional reports from a physician on one side of the conflict that is properly resolved by a referee specialist
are generally insufficient overcome the weight accorded the referee’s report or create a new conflict. See Harrison
Combs, Jr., 45 ECAB 716 (1994); Dorothy Sidwell, 41 ECAB 857 (1990).
9

Medical conclusions unsupported by rationale are of diminished probative value.
48 ECAB 232 (1996); Ceferino L. Gonzales, 32 ECAB 1591 (1981).
10

Jacquelyn L. Oliver,

Richard P. Cortes, 56 ECAB 200 (2004); Janice S. Hodges, 52 ECAB 379 (2001); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity, Chapter 2.814.4 (b)(4)
(December 1993).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 17, 2009 is affirmed.
Issued: March 9, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Powell, OH, Employer
__________________________________________

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

Docket No. 15-557
Issued: May 8, 2015

Case Submitted on the Record

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

JURISDICTION
On January 12, 2015 appellant filed a timely appeal from a December 23, 2014 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 properly terminated appellant’s wage-loss compensation and
medical benefits, effective December 23, 2014, as she no longer had any residuals or disability
causally related to her accepted employment injuries.
FACTUAL HISTORY
OWCP accepted that on November 25, 2013 appellant, then a 46-year-old rural mail
carrier, sustained a right ankle and lumbosacral sprain, a contusion of the right thigh and
1

5 U.S.C. § 8101 et seq.

abdominal wall, and unspecified arthropathy of the pelvic region and thigh as a result of a motor
vehicle accident. Appellant stopped work on the date of injury. OWCP paid temporary total
disability compensation.
In an October 27, 2014 narrative medical report, Dr. Matthew A. Bridger, an attending
Board-certified family practitioner, noted the physical requirements of appellant’s job and
provided a history of the November 25, 2013 employment injuries and medical treatment. On
physical examination, he reported that she moved with mild difficulty, her gait continued to
favor the left, and she felt unbalanced. On examination of the lumbar spine, Dr. Bridger found
mild evidence of pain during a range of motion. No surgical scar nor scoliosis was present.
There was tenderness to palpation. Faber testing remained positive, right greater than the left.
An examination of the right foot and ankle revealed a normal Achilles tendon. Bruising, joint
crepitus, joint effusion, and pes planus were absent. Movement of the ankle caused pain with
rotation and compression. A dorsalis pedis and posterior tibialis pulses were present. Range of
motion was normal. Swelling remained impressive in the bilateral lower legs. Palpation and
touch to the lower legs was uncomfortable. No ulcers or lesions were seen. Appellant was able
to bear weight and walk in flops. A vasculitic rash had improved, but remained present
(nonblanchable). Dr. Bridger diagnosed right ankle sprain, lumbosacral joint sprain/strain, a
contusion of the thigh, flank, and chest wall, and unspecified arthropathy of the pelvis and thigh.
He restricted appellant from standing for periods of time. Dr. Bridger advised that the cause of
this problem appeared to be, in part, related to her work activities which aggravated an
underlying preexisting condition. He concluded that appellant’s recommended work status “is
no work capacity” effective the date of his examination.
In an October 27, 2014 duty status report (Form CA-17), Dr. Bridger indicated
November 25, 2013 as the date of injury. He released appellant to return to work without
restrictions as of October 27, 2014. Dr. Bridger noted that she had been on disability for a
nonoccupational condition.
In an October 27, 2014 physician’s report of work ability form, Dr. Bridger reiterated his
prior diagnoses of right ankle sprain, lumbosacral joint sprain/strain, a contusion of the thigh,
flank, and chest wall, and unspecified arthropathy of the pelvis and thigh. He placed a
checkmark in a box indicating that appellant is temporarily not released to return to any work,
including the former position of employment, from the date of his report. Dr. Bridger advised
that she had reached maximum medical improvement on the date of his report.
By notice dated November 12, 2014, OWCP advised appellant that it proposed to
terminate her wage-loss compensation and medical benefits on the grounds that Dr. Bridger’s
October 27, 2014 report found that the accepted employment injuries had resolved and that she
was capable of returning to work without restrictions. It afforded her 30 days to submit
additional evidence or argument regarding the proposed termination.
In reports dated December 4, 2013 to December 8, 2014, Dr. Bridger provided
examination findings. He reiterated his diagnoses of right ankle sprain, lumbosacral joint
sprain/strain, a contusion of the thigh, flank, and chest wall, and unspecified arthropathy of the
pelvis and thigh, and his opinion that it appeared the cause of appellant’s problems was her work
activities which aggravated an underlying preexisting condition. Dr. Bridger also reiterated his

2

recommendation that appellant’s work status “is no work capacity” and indicated with a
checkmark that she “is temporarily not released to return to any work, including the former
position of employment.” In the reports dated January 6, February 6, and April 8, 2014, he
advised that appellant could perform restricted-duty work.
In a December 23, 2014 decision, OWCP finalized the termination of appellant’s medical
benefits effective that day. It found that the weight of the medical opinion evidence rested with
Dr. Bridger’s October 27 and December 8, 2014 reports which stated that she no longer had any
employment-related disability.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.2 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
The burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.4 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.5 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.6
ANALYSIS
OWCP accepted that appellant sustained a right ankle and lumbosacral sprain, a
contusion of the right thigh and abdominal wall, and unspecified arthropathy of the pelvic region
and thigh while in the performance of duty. Appellant received monetary compensation after she
stopped work. OWCP terminated her wage-loss compensation and medical benefits based on the
medical opinion of Dr. Bridger, appellant’s attending physician.
Dr. Bridger’s reports provided examination findings and diagnosed the accepted
employment-related conditions. His October 27, 2014 Form CA-17 report indicated a date of
injury as November 25, 2013 and found that appellant could return to work with no restrictions.
Dr. Bridger noted that she had been on disability due to a nonoccupational condition. In reports
dated January 6, February 6, and April 8, 2014, he released appellant to return to restricted-duty
work. In his remaining reports, Dr. Bridger either advised that appellant’s recommended work
status “is no work capacity” or indicated with a checkmark that she “is temporarily not released
to return to any work, including the former position of employment.” To be of probative value, a
2

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

3

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

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

6

A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K.
Guesford, 53 ECAB 727 (2002).

3

physician’s opinion should be one of reasonable medical certainty.7 Dr. Bridger’s opinion as to
whether appellant had any continuing employment-related disability is equivocal in nature and
not to a reasonable degree of medical certainty. Moreover, he failed to provide any medical
rationale to support his opinion that appellant could return to work with no restrictions.
Dr. Bridger did not specifically identify appellant’s nonoccupational condition or explain how
her disability was caused by this condition and not the accepted November 25, 2013
employment-related conditions. The Board has consistently held that a medical opinion not
fortified by rationale is of limited probative value.8 The Board finds that OWCP has failed to
meet its burden of proof to terminate appellant’s wage-loss compensation and medical benefits
effective December 23, 2014 based on Dr. Bridger’s reports of record. They do not establish that
appellant’s employment-related disability had ceased.
Accordingly, the Board will reverse the December 23, 2014 OWCP decision which
terminated appellant’s compensation benefits as she no longer had any residuals or disability
causally related to her November 25, 2013 employment-related injuries.9
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective December 23, 2014.

7

See Beverly R. Jones, 55 ECAB 411 (2004).

8

A.D., 58 ECAB 149 (2006).

9

P.J., Docket No. 13-1998 (issued April 14, 2014); D.H., Docket No. 12-1975 (issued June 5, 2013).

4

ORDER
IT IS HEREBY ORDERED THAT the December 23, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 8, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, LOS ANGELES
INTERNATIONAL AIRPORT, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 07-1323
Issued: October 5, 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 April 18, 2007 appellant filed a timely appeal from the merit decision of the Office of
Workers’ Compensation Programs dated February 28, 2007, finding that she received an
overpayment in the amount of $722.92 and that he was at fault in the creation of the
overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $722.92; and (2) whether the Office properly found that appellant was at fault in the
creation of this overpayment thus precluding waiver of the overpayment.

FACTUAL HISTORY
On October 23, 2005 appellant, then a 25-year-old transportation security screener, filed
a traumatic injury claim alleging that on that date, while loading a bag, he stepped incorrectly on
his right foot and began to feel a sharp pain in his knee. He stopped work on October 24, 2005.
By letter dated December 8, 2005, the Office accepted appellant’s claim for right knee strain and
right lateral collateral ligament. Appellant was referred for vocational rehabilitation services.
According to an Office internal note, on October 26, 2006 a representative from the
Office spoke by telephone with Gwendolyn Stone at Consumer First Lending Group who
indicated that appellant was working as a human resource specialist at Consumer First Lending
Group in Sacramento. Ms. Stone indicated that appellant was working 40 hours per week at
$14.00 per hour. An Office telephone note dated October 26, 2006 indicated that appellant
confirmed that he began work as a loan processor on October 16, 2006.
By letter dated November 1, 2006, the Office informed appellant that it was reducing his
wage-loss benefits effective October 16, 2006 to reflect his actual earnings as a loan processor.
On November 1, 2006 the Office also issued a preliminary notice of overpayment in the
amount of $722.92 finding that appellant received compensation at the temporary total disability
rate for the period October 16 through 28, 2006 while he was also working.1 The Office made a
preliminary finding that appellant was at fault in the creation of the overpayment as he should
have been aware that he was not entitled to the higher compensation while working.
In a memorandum to file dated November 22, 2006, the claims examiner indicated that
appellant had been paid under actual wage-earning capacity based on his employment beginning
October 26, 2006. The memorandum noted that appellant had no actual earnings from such
employment as he was working in an unpaid internship, so his benefits would not be reduced. In
a November 22, 2006 letter, the Office informed appellant that, after a review of all available
information, it had been determined that he was entitled to full compensation based on the fact
that he currently had no wages. Full compensation was restored and the reduction in
compensation referenced in a prior letter was rescinded.
On February 28, 2007 the Office issued a decision finding that an overpayment occurred
in the amount of $722.92 and that appellant was found to be with fault in the creation of the
overpayment.

1

The overpayment was calculated by first determining that appellant was paid $14.00 per hour or $560.00 per
week. The Office indicated that the gross amount of compensation appellant received from October 16 through 28,
2006 was $821.51 and that the amount to which he was entitled during that period, based on appellant earning
weekly wages of $560.00, was $98.59. Accordingly, the Office calculated that appellant received an overpayment
in the amount of $722.92 based on the difference between what he actually received for this period ($821.51) and
the amount that he was entitled to received ($722.92).

2

LEGAL PRECEDENT
Section 8129(a) of the Federal Employees’ Compensation Act provides that an employee
who is receiving compensation for an employment injury may not receive wages for the same
period.2
ANALYSIS
In the instant case, the Office found that appellant received an overpayment in the
amount of $722.92 because he received compensation for total disability during the period
October 16 through 28, 2006 while he was also working. The Office based its conclusion on a
mistaken fact that appellant was being paid wages of $14.00 per hour for his work at Consumer
First Lending Group. No proof of these wages exists other than notes regarding telephone calls
between the Office and Consumer Lending. In fact, the Office later determined that appellant
did not receive any wages for this period of time; rather, he was working as an unpaid intern. As
appellant did not receive wages during the period of his unpaid internship, he did not receive any
overpayment and the Office’s finding to the contrary is in error. Accordingly, the Board will
reverse the decision of the Office finding that an overpayment occurred.
CONCLUSION
The Board finds that the Office erred in finding that appellant received an overpayment in
the amount of $722.92.3

2

5 U.S.C. § 8129(a).

3

In light of the disposition of the first issue, the second issue regarding fault is moot.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2007 is reversed.
Issued: October 5, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 17-1251
Issued: October 23, 2017

Case Submitted on the Record

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

JURISDICTION
On May 17, 2017 appellant filed a timely appeal from a January 26, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated August 19, 2016 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence accompanying her request for appeal. The Board may not consider evidence
for the first time on appeal that was not before OWCP at the time it issued its final decision in the case. Thus, the
Board is precluded from reviewing this evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 1, 2012 appellant, then a 52-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that, as a result of 23 years of repetitive duties delivering
mail, she suffered wear and tear of her spine and neck. She listed the nature of disease or illness
as neck disc degeneration. Appellant did not stop work.3
By decision dated September 5, 2013, OWCP accepted appellant’s claim for cervical
sprain, thoracic sprain, and lumbar sprain. On April 29, 2014 it also accepted her claim for
aggravation and acceleration of degenerative changes, C3-6, and aggravation and acceleration of
degenerative changes at L2-S1.
On May 24, 2016 appellant filed claims for compensation (Form CA-7) for the time
period April 16 through May 13, 2016.
By letter dated May 31, 2016, OWCP informed appellant that additional evidence was
necessary to establish that she was disabled as of April 16, 2016, causally related to the accepted
conditions in this claim. It requested that she submit medical evidence to establish that she was
disabled due to this claim. Appellant was afforded 30 days to submit the necessary evidence.
In support of her claim, appellant submitted notes by Adam Beyer, a physician assistant
for Dr. Thomas J. Perlewitz, a Board-certified orthopedic surgeon. In a March 16, 2016 return to
work slip, Mr. Beyer diagnosed low back pain and indicated that she was totally incapacitated
pending a magnetic resonance imaging (MRI) scan. In a May 13, 2016 form he ordered physical
therapy. Mr. Beyer listed appellant’s diagnoses as status post lumbar fusion and sacroiliac joint
dysfunction. These notes were not countersigned by Dr. Perlewitz or any other physician.
In addition, appellant submitted a May 3, 2016 report, wherein Dr. Jamie O. Edwards, a
Board-certified family practitioner, listed her diagnosis as sacroiliitis. Dr. Edwards treated her
with a sacroiliac corticosteroid injection. Appellant also submitted physical therapy notes dated
from June 20 through July 1, 2016.
By decision dated August 19, 2016, OWCP denied appellant’s claims for compensation
for the period April 16 through May 31, 2016. It determined that the medical evidence failed to
support disability during the time period claimed.
On January 17, 2017 OWCP received appellant’s request for reconsideration. In support
thereof, appellant resubmitted the May 3, 2016 report by Dr. Edwards. She also submitted a new
September 6, 2016 physical therapy note and resubmitted prior physical therapy notes.
Appellant also submitted three new “Recommendations to Return to Work” signed by
Dr. Perlewitz. In notes dated March 23 and April 1, 2016, Dr. Perlewitz diagnosed low back
3

Appellant has filed other claims before OWCP. In File No. xxxxxx532, OWCP accepted that on March 22,
2008 her was in an employment-related motor vehicle accident and sustained a sprain of her neck, lumbar region
and shoulder. It also accepted appellant’s claim for disorders of sacrum, other symptoms of back, and spasm of
muscle. In File No. xxxxxx415, OWCP denied her claim for an occupational disease for her lower back and hip as
it determined that she had not submitted medical evidence establishing a medical diagnosis causally related to her
accepted employment conditions.

2

pain and noted that she was totally incapacitated pending her MRI scan and follow-up
appointment. In a May 13, 2016 note, he diagnosed appellant with post anteroposterior spinal
fusion/low back pain. Dr. Perlewitz indicated that she could return to work on May 17, 2016
with restrictions
By decision dated January 26, 2017, OWCP denied appellant’s reconsideration request
without conducting a merit review. It determined that she had neither raised substantive legal
questions nor included new and relevant evidence not previously considered.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not to show that OWCP erroneously applied or interpreted a specific point
of law, nor did she advance a relevant legal argument not previously considered by OWCP.7
Furthermore, appellant has not submitted relevant and pertinent new evidence not
previously considered by OWCP. The underlying issue in this case is whether she established
total disability for the period April 16 through May 13, 2016, due to the accepted cervical and
lumbar conditions. In support of her request, appellant submitted a duplicate of the May 3, 2016
report by Dr. Edwards and duplicates of her physical therapy notes. Evidence which is
duplicative, cumulative, or repetitive in nature is insufficient to warrant reopening a claim for
merit review.8

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b).

7

See J.F., Docket No. 16-1233 (issued November 23, 2016).

8

Denis M. Dupor, 51 ECAB 482 (2000).

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Although appellant submitted a new physical therapy note, certain healthcare providers
such as physical therapists, are not considered physicians as defined under FECA.9 As causal
relationship is a medical issue which requires rationalized medical opinion evidence,10 this
therapy is insufficient to require merit review.11
Appellant also submitted new progress notes by Dr. Perlewitz. Although Dr. Perlewitz
indicated that she was totally disabled in his notes of March 23 and April 1, 2016, he did not
address whether she was disabled due to her accepted employment conditions. As these reports
do not address the critical issue of whether appellant was totally disabled causally related to her
accepted employment conditions, they did not requiring reopening the case for merit review.12
A claimant may obtain a merit review of an OWCP decision by submitting relevant and
pertinent new evidence. In this case, appellant failed to submit relevant and pertinent new
medical evidence addressing the underlying issue. The Board accordingly finds that she has not
met the requirements of 20 C.F.R. § 10.606(b)(3).
Accordingly, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).

9

5 U.S.C. § 8102 of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentist, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. Gloria J. McPherson, 51 ECAB 441 (2000); F.G., Docket No. 16-1482 (issued January 25, 2017)
(physical therapists); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can
only be resolved through the submission of probative medical evidence from a physician). 20 C.F.R. § 10.5(t).
10

B.B., Docket No. 17-0919 (issued June 28, 2017).

11

E.R., Docket No. 17-0540 (issued July 26, 2017).

12

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 26, 2017 is affirmed.
Issued: October 23, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
G.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
_________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

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Docket Nos. 11-1743 & 11-1663
Issued: March 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
On July 13, 2011 appellant, through her attorney, filed an application for review of the
Office of Workers’ Compensation Programs’ (OWCP) April 21, 2011 merit decision in File No.
xxxxxx601 denying her traumatic injury claim. The appeal was docketed as number 11-1663.
On July 27, 2011 appellant, through her attorney, filed an application for review of OWCP’s
March 31, 2011 merit decision in File No. xxxxxx321 denying her claim for a recurrence of
disability and request to expand her claim. That appeal was docketed as number 11-1743. The
Board finds that these appeals are not in posture for a decision.
In her March 12, 2008 traumatic injury claim in File No. xxxxxx321, appellant alleged
that she sustained injuries to her head and neck when she was struck in the head by an elevator
door. Her claim was accepted for neck sprain and headache. Appellant returned to work on
July 11, 2009.
Appellant filed a notice of recurrence of total disability as of July 16, 2009, alleging that
her migraine headaches and cervical condition were aggravated by lifting mail. OWCP
converted her recurrence claim to a new traumatic injury claim under File No. xxxxxx601. It
denied appellant’s claim by decisions dated September 17, 2009, March 29, 2010 and
March 21, 2011. Appellant disagreed with OWCP’s March 21, 2011 decision and appealed to
the Board in Docket No. 11-1663.

On August 5, 2009 appellant filed a notice of recurrence in File No. xxxxxx321 alleging
total disability as of August 1, 2009 due to migraine headaches related to her accepted injury.
She asked that her claim be expanded to include a right shoulder injury. In decisions dated
October 13, 2009, March 19, 2010 and March 31, 2011, OWCP denied appellant’s recurrence
claim and request to expand her claim. Appellant disagreed with OWCP’s March 31, 2011
decision and appealed to the Board in Docket No. 11-1743.
Both of appellant’s claims involve the same claimed head and cervical conditions, which
allegedly resulted from the same work factors. Therefore, the medical evidence contained in File
No. xxxxxx321 will necessarily bear directly on her claim for compensation in File No.
xxxxxx601 and vice versa. The record in File No. xxxxxx601, however, does not contain any
evidence relating to the development of the March 12, 2008 traumatic injury claim in File No.
xxxxxx321. Because it is essential for the Board to review the medical evidence contained in
both files in order to render a full and fair adjudication of the issues in these appeals in Docket
Nos. 11-1743 and 11-1663, this case will be remanded for OWCP to consolidate case files
xxxxxx321 and xxxxxx601. Reconstruction of the record will be followed by a de novo decision
on the merits of the claim, in order to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
March 31, 2011 decision in File No. xxxxxx321 and the April 21, 2011 decision in File No.
xxxxxx601 be set aside and the cases are remanded for further development consistent with this
order.
Issued: March 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Melford V. McCormick, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1211
Issued: April 10, 2018

Case Submitted on the Record

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

JURISDICTION
On May 11, 2017 appellant, through counsel, filed a timely appeal from an April 4, 2017
nonmerit decision of the Office of Workers’ Compensation Program (OWCP). As more than 180
days elapsed from OWCP’s last merit decision, dated January 11, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.

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 properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 7, 2014 appellant, then a 54-year-old correspondence examination technician,
filed a traumatic injury claim (Form CA-1) alleging that on April 2, 2014, she sustained right knee
and back injuries due to tripping over a trash can and falling on her right knee at work.3 She
stopped work on April 3, 2014 and returned to work on April 9, 2014. OWCP accepted appellant’s
claim for right knee contusion and sprains of her neck and back (lumbar region).
On April 2, 2014 appellant received medical treatment at the Truman Medical Center in
Kansas City, Missouri, at which time she reported falling on her right knee at work on that date.
The findings of right knee x-rays obtained on April 2, 2014 contained an impression of no acute
osseous abnormality, mild-to-moderate tri-compartmental degenerative osteoarthrosis, and
minimal knee joint effusion.
Appellant received treatment for her medical conditions from Dr. Jonathan D. Schultz, a
Board-certified family practitioner. In an April 16, 2014 report, Dr. Schultz discussed her April 2,
2014 fall and reported the findings of his physical examination. He diagnosed sprain of the
posterior cruciate ligament of the right knee (grade 1).4
Dr. Schultz arranged for appellant to undergo a magnetic resonance imaging (MRI) scan
of her right knee on April 22, 2014 which revealed distal quadriceps and patellar tendinosis, medial
collateral ligament sprain, tri-compartmental degenerative changes (most advanced in the
patellofemoral joint with significant joint space narrowing/chondromalacia), small volume suprapatellar joint effusion, and nonspecific soft tissue edema.
In an April 23, and May 27, 2014 reports, Dr. Schultz diagnosed right knee pain from knee
contusion and aggravation of underlying right knee osteoarthritis. He recommended that appellant
continue to use a topical analgesic compound.
The record contains personnel records showing that appellant voluntarily resigned from the
employing establishment effective June 13, 2014, for “personal reasons” identified as the reason
for the resignation. She last worked for the employing establishment on June 6, 2014.
In a July 3, 2014 report, Dr. Schultz noted that appellant reported that her right knee pain
was “not much better” despite her participation in physical therapy. He indicated that his physical
examination showed tenderness to palpation of the medial joint line of the right knee and he
diagnosed aggravation of preexisting osteoarthritis with possible lateral meniscus tear (despite
3

Appellant did not sign the (Form CA-1) and it appears that an unidentified individual completed the form on her
behalf.
4

An authorization for examination and/or treatment form (Form CA-17) was issued to appellant on April 10, 2014.

2

most of the pain being medial in nature). Dr. Schultz recommended that appellant undergo
arthroscopic surgery of her right knee.
On July 21, 2014 appellant visited Dr. Akin Cil, a Board-certified orthopedic surgeon, and
informed him that she had a chief complaint of right knee pain. She advised him that her right
knee pain began after her April 2, 2014 fall at work and reported that the pain was diffuse and
located primarily in the anterior of her right knee. Dr. Cil detailed his physical examination
findings, including tenderness in the anterior right knee with signiﬁcant tenderness laterally and
less signiﬁcant tenderness medially along the joint lines. He diagnosed right knee tricompartmental osteoarthritis and right knee lateral meniscus tear. Dr. Cil advised that he was
planning to perform arthroscopic debridement of the right lateral meniscus.
On August 8, 2014 Dr. Cil performed OWCP-approved right knee surgery, including
arthroscopy with debridement, removal of a loose body, and abrasion chondroplasty.
In a brief July 6, 2015 report, Dr. Cil had indicated that appellant had right knee
osteoarthritis and noted that he gave her a Kenalog/Lidocaine injection in her right knee. In an
October 12, 2015 report, he diagnosed tri-compartmental osteoarthritis of the right knee and
discussed her treatment options.
In November 2015, appellant filed a claim for compensation (Form CA-7) claiming that
she sustained disability for the period June 14 to July 6, 2014 due to her accepted employment
conditions.
In a November 24, 2015 development letter, OWCP requested that appellant submit
additional evidence in support of her claim for disability for the period June 14 to July 6, 2014.
Appellant submitted an April 16, 2014 duty status report (Form CA-17) in which
Dr. Jayden Price, an attending Board-certified osteopath, recommended work restrictions. In an
April 23, 2014 attending physician’s report (Form CA-20), Dr. Price noted treatment for her back
condition on several dates in April 2014.
In a January 11, 2016 decision, OWCP denied appellant’s claim for employment-related
disability for the period June 14 to July 6, 2014. It found that she failed to submit medical evidence
to establish disability for the period June 14 to July 6, 2014 due to her accepted employment
conditions.
On February 21, 2016 appellant requested a hearing with a representative of OWCP’s
Branch of Hearings and Review regarding OWCP’s January 11, 2016 decision.
In a May 4, 2016 decision, OWCP determined that appellant was not entitled to a hearing
as a matter or right because her hearing request was untimely filed given that it had not been filed
within 30 days of its January 11, 2016 decision. It further indicated that it was denying her hearing
request because the case could equally well be addressed by requesting reconsideration and
submitting evidence not previously considered regarding the claim for employment-related
disability for the period June 14 to July 6, 2014.

3

On January 9, 2017 appellant requested reconsideration of OWCP’s January 11, 2016
decision.
Appellant submitted a February 1, 2016 report in which Dr. Cil described the physical
examination findings from this date, noting that she had tenderness along the lateral aspect of the
patella and some medial and lateral joint line tenderness. Dr. Cil diagnosed right knee
osteoarthritis.
In a brief April 18, 2016 report, Dr. Cil had indicated that appellant had right knee
osteoarthritis and noted that he gave her a Kenalog/Lidocaine injection in her right knee. The
findings of April 18, 2016 x-ray testing of appellant’s right knee contained an impression of no
acute osseous abnormalities, tri-compartmental degenerative joint disease of both knees, mild
medial and lateral tibio-femoral joint space narrowing bilaterally, mild patellofemoral
degenerative joint disease in both knees (right greater than left), and small right knee joint effusion.
In a September 28, 2016 report, Dr. Cil provided a discussion of the treatment of
appellant’s right knee condition since April 17, 2014. He discussed various diagnostic tests which
were performed on her right knee, noting that the testing showed tri-compartmental osteoarthritis.
Dr. Cil indicated that he first saw appellant on July 21, 2014 and indicated that he performed right
knee surgery on August 8, 2014. He discussed his postsurgery treatment, noting that he last saw
her on April 18, 2016.
Subsequently, in an October 3, 2016 report, Dr. Cil reported the findings of the physical
examination he performed on that date. He indicated that, given the failure of conservative
treatment, appellant should consider joint replacement surgery for her right knee.
Appellant submitted notes, dated between 2008 and 2014, produced by registered nurses
at the employing establishment’s health unit.
Appellant also resubmitted documents which had previously been considered by OWCP
including April 16 and 23, May 27, and July 3, 2014 reports of Dr. Schultz, July 6, 2014 and
October 12, 2015 reports of Dr. Cil, an April 22, 2014 MRI scan report, and documents from the
August 8, 2014 right knee surgery.
In an April 4, 2017 decision, OWCP denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence she submitted in
support of her timely reconsideration request was duplicative or irrelevant/immaterial to the
underlying issue of her case.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.5

5

5 U.S.C. § 8128(a).

4

A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.6 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.7 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, it will deny
the request for reconsideration without reopening the case for review on the merits.8
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP decision for which review is sought.9 For OWCP decisions issued on or after August 29,
2011, the date of the application for reconsideration is the “received date” as recorded in the
Integrated Federal Employees’ Compensation System (iFECS).10 If the last day of the one-year
time period is a Saturday, Sunday, or a legal holiday, OWCP will still consider a request to be
timely filed if it is received on the next business day.11
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already of record12 and the submission of evidence or argument which does
not address the particular issue involved does not constitute a basis for reopening a case.13
ANALYSIS
Appellant timely requested reconsideration of OWCP’s January 11, 2016 merit decision
on January 9, 2017.14

6

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

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

9

Id. at § 10.607(a).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987 there is no
regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987
through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and
must be mailed within one year of OWCP decision for which review is sought.
11

Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

12

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

13

Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

14
Appellant’s request was timely filed because it was received within one year of OWCP’s January 11, 2016
decision. See supra notes 9 through 11.

5

The issue presented on appeal is whether appellant’s January 9, 2017 request for
reconsideration met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to
reopen the case for further review of the merits of the claim.
The Board finds that appellant’s request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered by OWCP.
The underlying issue in this case is whether appellant submitted medical evidence
sufficient to establish employment-related disability for the period June 14 to July 6, 2014.15 This
is a medical issue which must be addressed by relevant medical evidence.16 A claimant may be
entitled to a merit review by submitting relevant and pertinent new evidence, however, the Board
finds that he or she did not submit such evidence in this case.
In support of her reconsideration request, appellant submitted several reports of Dr. Cil
which were dated between February and October 2016. However, while these reports had not
previously been submitted, they are not relevant to the main issue of the present case because none
of the reports discuss her disability for the period June 14 to July 6, 2014. For example, in his
February 1, April 18, and October 3, 2016 reports, Dr. Cil only described his physical examination
findings from those dates. In a September 28, 2016 report, he provided a discussion of the
treatment of appellant’s right knee condition since April 17, 2014, including his treatment of her
between July 21, 2014 and April 18, 2016. However, this report does not address her disability
for the period June 14 to July 6, 2014. The Board therefore finds that the submission of these
reports would not require OWCP to reopen appellant’s case for further review of the merits of the
claim because, as noted above, the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.17
Appellant also submitted notes, dated between 2008 and 2014, produced by registered
nurses at the employing establishment’s health unit. However, this evidence would not be relevant
to the central issue of this case, which is medical in nature, because these notes were produced by
registered nurses who are not considered physicians as defined under FECA and whose reports do
not constitute probative medical evidence.18
In connection with her reconsideration request, appellant also submitted documents which
had previously been considered by OWCP including April 16, 23, May 27, and July 3, 2014
reports of Dr. Schultz, July 6, 2014 and October 12, 2015 reports of Dr. Cil, an April 22, 2014
MRI scan report, and documents from her August 8, 2014 right knee surgery. The Board finds
that the submission of these reports would not require OWCP to reopen her case for further review
of the merits of the claim because the Board has held that the submission of evidence or argument
15
In a January 11, 2016 decision, OWCP found that appellant failed to submit medical evidence sufficient to
establish disability for the period June 14 to July 6, 2014 due to her accepted employment conditions.
16

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

17

See supra note 13.

18

R.S., Docket No. 16-1303 (issued December 2, 2016).

6

which repeats or duplicates evidence or argument already in the case record does not constitute a
basis for reopening a case.19
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 10, 2018
Washington, DC

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

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

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

19

See supra note 12. The Board notes that an authorization for examination and/or treatment form (Form CA-16)
was issued to appellant on April 10, 2014. Where an employing establishment properly executes a Form CA-16
authorizing medical treatment related to a claim for a work injury, the form creates a contractual obligation, which
does not involve the employee directly, to pay for the cost of the examination/treatment regardless of the action taken
on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form
CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, VICKERY STATION,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1204
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 3, 2021 appellant filed a timely appeal from a March 29, 2021 merit decision
and a July 27, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 27, 2021 decision, appellant submitted additional evidence to the Board.
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.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 28, 2021 appellant, then a 69-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bilateral wrist pain due to factors of his federal
employment. He noted that an attached statement explained how his employment factors caused
his condition, however, no such statement was contained in the record. Appellant noted that he
first became aware of his claimed injury on December 16, 2021 and realized its relation to his
federal employment on January 26, 2021.3 On the reverse side of the claim form, his supervisor,
M.J., indicated that appellant’s work was modified so that he did not have to lift items over 10
pounds and that he was attending physical therapy daily. The employing establishment challenged
appellant’s claim because appellant did not submit any factual or medical documentation.
In a development letter dated February 5, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities. It
afforded both parties 30 days to respond.
A January 26, 2021 report from Dr. Juan Zamora, a Board-certified physician specializing
in family medicine, related appellant’s history of injury. Appellant awoke on December 16, 2020
with sharp pain in his left wrist and continued to experience frequent pain and discomfort
extending into his middle fingers. A similar pattern of pain started in his right wrist on
December 30, 2020. Appellant also began to experience right elbow pain on January 4, 2021.
Pain in each of these areas increased with activity. Dr. Zamora opined that appellant’s condition
was work related and recommended diagnostic testing. He diagnosed unspecified sprains of the
right elbow and both wrists.
On February 9, 2021 appellant responded to OWCP’s development questionnaire, noting
that he worked limited duty and retired from the employing establishment on February 1, 2021.
He indicated that his responses to OWCP’s remaining questions were contained in an attached
statement, however, no such statement is found in the record.
Appellant underwent bilateral wrist x-rays and a magnetic resonance imaging (MRI) scan
on February 10, 2021. The x-ray of his left wrist revealed severe triscaphe and mild
trapeziometacarpal osteoarthritis and a one millimeter ulnar positive variance indicating possible
ulnar impaction syndrome or triangular fibrocartilage complex (TFCC) tears. The x-ray of
appellant’s right wrist revealed severe triscaphe and mild radiocarpal and trapeziometacarpal
osteoarthritis. The MRI scan of his left wrist demonstrated tricompartmental wrist effusions,
chondromalacia within the lunate and distal ulna, which could relate to ulnar impaction syndrome
and/or osteoarthritis, severe triscaphe and mild-to-moderate trapeziometacarpal osteoarthritis,
3

A January 20, 2021 notice of separation indicated that appellant retired from the employing establishment on
January 31, 2021.

2

increased signal within the TFCC compatible with either a TFCC tear or TFCC degeneration, and
mild generalized extensor tenosynovitis. The MRI scan of appellant’s right wrist demonstrated
mild generalized extensor tenosynovitis with grade 1 strain of the extensor carpi ulnaris tendon,
tricompartmental wrist effusions, severe triscaphe and mild trapeziometacarpal osteoarthritis, and
increased signal within the TFCC indicative of either a TFCC tear or TFCC degeneration .
In a February 23, 2021 report, Dr. Zamora reviewed the February 10, 2021 x-ray and MRI
scans and diagnosed chondromalacia, osteoarthritis, and TFCC degeneration, possibly with tears.
He opined that appellant’s conditions were due to the natural wear and tear of the body but were
aggravated by his 42 years of work for the employing establishment. Dr. Zamora advised appellant
to begin a regimen of physical rehabilitation.
By decision dated March 29, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted factors of his federal employment.
Appellant subsequently submitted an undated statement responding to OWCP’s initial
development questionnaire. He described his employment activities, including daily sorting and
delivering of mail and parcels weighing up to 70 pounds and carrying up to 35 pounds of letters,
flats, and small parcels in a satchel carried on left shoulder such that weight was almost entirely
on his left shoulder and arm. Appellant noted that he had been under lifting restrictions at work
since July 2020 due to a left arm injury. He compensated for his left arm injury by doing more
work with his right arm. Appellant’s left wrist and hand pain began during the night on
December 16, 2020, and he reported it to his station manager, D.D, the next day. Similar pain
began in his right wrist on December 30, 2020 and in his right arm and elbow on January 4, 2021.
Appellant experienced greater pain and discomfort during periods of activity. He reported this
history to his manager, M.J., on January 13 and 15, 2020. Appellant’s activities outside of work
consisted mainly of listening to music and watching movies. He believed that his symptoms were
indicative of repetitive motion injuries due to the nature of his work for the employing
establishment.
OWCP received February 23, 2021 report from Dr. Zamora in which he again reviewed
the February 10, 2021 x-rays and MRI scans and diagnosed chondromalacia, osteoarthritis, and
TFCC degeneration, possibly with tears. Dr. Zamora opined that appellant’s conditions were due
to the natural wear and tear of the body but were aggravated by his 42 years of work at the
employing establishment. Specifically, he explained that appellant’s work duties, including
carrying and handling heavy loads, sorting and casing mail, repetitively twisting at the wrist to
open mailboxes, and repetitively locking and unlocking his work vehicle throughout the day,
aggravated his conditions. Dr. Zamora advised that appellant begin a regimen of physical
rehabilitation.
On April 28, 2021 appellant requested reconsideration. In support of his request, he
submitted an April 27, 2021 statement, in which he contended that his more than 42 years of
service to the employing establishment, including a great deal of overtime, directly contributed to
his diagnosed conditions. Appellant noted that, as a result of a previously accepted left arm injury,
assigned OWCP File No. xxxxxx014, he had been restricted to eight hours of work per day during
the latter half of 2020. Finally, he argued that the medical documentation proved causal

3

relationship between his diagnosed medical conditions and the accepted factors of his federal
employment.
By decision dated July 27, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish 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 FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 8
Causal relationship is a medical question that requires rationalized medical opin ion
evidence to resolve the issue. 9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

4

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
In his January 26, 2021 report, Dr. Zamora diagnosed unspecified sprains of the right
elbow and both wrists and opined that appellant’s condition was work related. Similarly, in a
February 23, 2021 report, he diagnosed chondromalacia, osteoarthritis, and TFCC degeneration,
possibly with tears, and opined that appellant’s conditions were due to the natural wear and tear of
the body, but were aggravated by appellant’s 42 years of work for the employing establishment.
While he provided an affirmative opinion suggestive of causal relationship, Dr. Zamora did not
offer medical rationale sufficient to explain why he believes appellant’s employment duties could
have resulted in or contributed to his diagnosed conditions. Without identifying specific
employment duties or explaining how they caused or aggravated app ellant’s conditions,
Dr. Zamora’s letter is of limited probative value and is insufficient to meet appellant’s burden of
proof.12
In a separate February 23, 2021 report, Dr. Zamora repeated the above diagnoses and again
opined that appellant’s conditions were due to the natural wear and tear of the body , but were
aggravated by appellant’s 42 years of work for the employing establishment. Specifically, he
explained that appellant’s work duties, including carrying and handling heavy loads, sortin g and
casing mail, repetitively twisting at the wrist to open mailboxes, and repetitively locking and
unlocking his work vehicle throughout the day, aggravated his conditions. However, Dr. Zamora
did not explain how any of these described employment activities caused appellant’s diagnosed
chondromalacia, osteoarthritis, and TFCC degeneration. To be of probative medical value, a
medical opinion must explain how, physiologically, the movements involved in the employment
activities caused or contributed to the diagnosed conditions. 13 As such, Dr. Zamora’s report is
insufficient to establish appellant’s claim.
The remaining medical evidence consisted of bilateral x-ray and MRI scans of appellant’s
wrists. The Board has held, however, that diagnostic testing reports, standing alone, lack probative
value on the issue of causal relationship as they do not address the relationship between the
accepted employment factors and a diagnosed condition. 14 For this reason, this evidence is also
insufficient to meet appellant’s burden of proof.

11

Id.; Victor J. Woodhams, supra note 8.

12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

A.W., Docket No. 19-0327 (issued July 19, 2019); M.D., Docket No. 18-0195 (issued September 13, 2018);
Jimmie H. Duckett, 52 ECAB 332 (2001).
14

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

5

As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof. 15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 16
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought. 18 If it chooses to grant reconsideration, it reopens and
reviews the case on its merits. 19 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 20

15

See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
16

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
17

20 C.F.R. § 10.606(b)(3); see L.D., id; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
18

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
19

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

20

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

6

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant has not advanced a relevant legal argument not
previously considered. Consequently, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
Appellant also did not submit relevant and pertinent new evidence in support of his
reconsideration request. The underlying issue on reconsideration is whether appellant has met his
burden of proof to establish a medical condition causally related to the accepted factors of his
federal employment. This is a medical issue which is addressed by relevant medical evidence not
previously considered. 22
With his request for reconsideration, appellant submitted an undated response to OWCP’s
initial development questionnaire, a February 23, 2021 medical report from Dr. Zamora, and an
April 27, 2021 statement contending that his conditions were causally related to the accepted
factors of his federal employment. The undated questionnaire response and the April 27, 2021
statement do not constitute relevant and pertinent new evidence as they are not medical evidence.
Further, Dr. Zamora’s separate February 23, 2021 medical report substantially replicates a
previously considered report of even date. The only addition in the later-submitted report was a
list of employment activities that he believed aggravated appellant’s medical conditions.
Dr. Zamora’s did not, however, offer an explanation of the causal relationship between those
activities and the diagnosed conditions. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case. 23
As such, appellant is not entitled to further review of the merits of his claim based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).24
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 25
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment. The Board further
21

C.B., Docket No. 18-1108 (issued January 22, 2019).

22

Y.L., Docket No. 20-1025 (issued November 25, 2020).

23

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper; 31 ECAB 224, 225 (1979).
24

Supra note 16.

25

J.B., supra note 20; D.G., Docket No. 19-1348 (issued December 2, 2019).

7

finds that OWCP properly denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 29 and July 27, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed. 26
Issued: March 11, 2022
Washington, DC

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

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

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

26

Upon return of the case record, OWCP may consider administratively combining the current claim file with
OWCP File No. xxxxxx014.

8