United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dublin, GA, Employer
__________________________________________

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Appearances:
Jerald C. Norris, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-156
Issued: June 3, 2008

Case Submitted on the Record

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

JURISDICTION
On October 22, 2007 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ hearing representative’s January 31, 2007 merit decision
finding that she had not developed an injury due to her federal employment. She also appealed a
July 10, 2007 nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over both the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed an occupational disease due to factors of her federal employment; and (2) whether the
Office properly refused to reopen her case for further consideration of the merits pursuant to
5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 16, 2005 appellant, then a 49-year-old medical clerk, filed an occupational
disease, alleging that on March 31, 2005 she realized that she had developed swelling in her left
knee, pain in her neck and cramps in her legs, hands and lower back with a burning sensation.
She first attributed this condition to her employment duties of repetitive movement and constant
reaching on April 20, 2006.
By letter dated May 22, 2006, the Office requested additional factual and medical
information in support of her claim. Appellant responded on May 26, 2006 and stated that she
began working as a medical clerk on March 31, 2006 for four hours a day. She worked for three
weeks and after work, her left knee became swollen, her legs ached and her feet were swollen.
Appellant also experienced neck pain, hand pain and lower back tightness with a burning
sensation. She stated that her medical clerk position required constant reaching and movement
including “getting up and down” to copy orders, place the orders in the appropriate charts and on
the nurses’ board as well as to answer the telephone. Appellant reported these duties to her
physician on April 20, 2006. Appellant’s physician informed her that the position was not
appropriate due to her prior injuries including a torn ligament in her left knee, two pinched
nerves in her neck, a broken coccyx and back surgery.
In a report dated June 20, 2006, Dr. Dwayne L. Clay, Board-certified in physical
medicine and rehabilitation, noted that appellant had developed increasing pain and discomfort
beginning April 20, 2006. He stated:
“She was assigned to work on one of the nursing wards as a medical clerk. This
required her to do repetitive tasks using her upper extremities repetitively
numerous times a day, changing positions from sitting to standing, twisting,
stooping and bending. This has exacerbated the pain in her low back and upper
extremities. Most notably she has been having increasing pain and discomfort in
her knees, more on the left side than the right. Due to this exacerbation of pain
and discomfort, I have taken her out of work as of April 20, 2006.”
Dr. Clay stated that he was investigating and evaluating appellant’s low back, knee, neck and
upper extremities, but did not provide any diagnoses.
By decision dated June 5, 2006, the Office denied appellant’s claim for an occupational
disease finding that she established the alleged employment duties to which she attributed her
condition; however, she had not provided the necessary medical evidence to establish a condition
resulting from these duties.
Appellant requested an oral hearing on July 10, 2006. She testified at the oral hearing on
November 28, 2006. Appellant had two prior claims that were accepted by the Office, a back
injury and a claim for left knee, coccyx and cervical injury. She stated that her most recent claim
was for aggravation of these accepted conditions due to her employment duties as a medical
clerk. Appellant noted that, as union president, she also worked for the union four hours a day
which did not require her to move unless she wanted to do so. She stated that she sat, answered
the telephone and talked to people. Prior to her accepted injuries, appellant was a licensed

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practical nurse and worked four hours in the union office. Her prior diagnosed conditions
included a torn ligament in the left knee for which surgery was recommended. Appellant
continued to receive medical treatment under her prior claims.
By decision dated January 31, 2007, an Office hearing representative affirmed the July 5,
2006 decision, finding that there was insufficient medical evidence to establish that her work
duties had aggravated her preexiting conditions.
In a letter dated February 13, 2007, appellant, through her representative, requested
reconsideration. She reviewed the facts of the case and discussed her referral, under a separate
claim number, to a second opinion physician. Appellant submitted a copy of the notice of oral
hearing, a time log of her employment activities from March 20 to April 6, 2006 and a copy of
her limited-duty assignment. She also submitted a March 10, 2006 letter from the Office, under
a separate claim number which stated that appellant’s claims had been accepted for acute lumbar
strain, lumbar/thoracic/cervical intervertebral disc disorders, radiculopathy of the right leg,
coccyx fracture, iatrogenic pulmonary embolism, precordial pain and contusion left knee as a
result of employment injuries on July 27, 2000 and February 25, 2002. Appellant submitted
letters from the employing establishment offering her a limited-duty position on March 22, 2007
and a letter dated May 24, 2006 from the Office finding a conflict of medical opinion in her prior
claims. She submitted excerpts from the Ward Clerk Manual. Appellant resubmitted Dr. Clay’s
June 20, 2006 report and the Office’s July 5, 2006 decision. On April 19, 2006 Dr. Mark J.
Samson, a Board-certified family practitioner, stated that appellant should be excused from work
from April 19 to 24, 2006, for “medical reasons.”
By decision dated July 10, 2007, the Office declined to reopen appellant’s claim for
further consideration of the merits finding that the evidence submitted in support of her claim
was repetitious or irrelevant.
LEGAL PRECEDENT -- ISSUE 1
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.1 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of a disease or condition for which
compensation is claimed; (2) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.2

1

20 C.F.R. § 10.5(q).

2

Solomon Polen, 51 ECAB 341, 343-44 (2000).

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ANALYSIS -- ISSUE 1
The Office accepted that appellant’s position as a medical clerk required her to frequently
change position from sitting to standing and perform twisting, stooping and bending and
repetitive upper extremity movements. However, appellant failed to provide any medical
evidence diagnosing a physical condition resulting from these employment activities. The only
medical evidence of record is the June 20, 2006 report from Dr. Clay, Board-certified in physical
medicine and rehabilitation, who noted appellant’s employment activities and attributed her
increasing pain and discomfort to these activities. He did not specify a firm diagnosis of a
condition that was caused or aggravated by her employment activities. The Board has held that
the mere diagnosis of “pain” does not constitute a basis for the payment of compensation.3 The
record reveals that appellant has other claims documenting conditions accepted by the Office.
Dr. Clay did not address how any of her preexiting conditions were aggravated by her work
requirements. As he did not provide the necessary medical evidence to establish the presence or
existence of a disease or condition, this report is not sufficient to meet appellant’s burden of
proof. Appellant has not established an occupational disease as a result of her employment
duties.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.5 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS -- ISSUE 2
In support of her request for reconsideration, appellant did not submit relevant or
pertinent new evidence not previously considered by the Office. She resubmitted a copy of the
notice of oral hearing, Dr. Clay’s report and the Office’s July 5, 2006 decision. As these
documents were already in the record at the time of the hearing representative’s January 31, 2007
decision, they do not constitute new evidence and are not sufficient to require the Office to
reopen appellant’s claim for consideration of the merits.
Appellant also submitted factual information regarding her employment duties as a
medical clerk including a time log of her employment activities beginning March 20, 2006, a
3

Robert Broome, 55 ECAB 339, 342 (2004).

4

5 U.S.C. §§ 8101-8193, § 8128(a).

5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.608(b).

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copy of her limited-duty assignment and excerpts from the ward clerk manual. This factual
evidence is not relevant to the issue for which the Office denied appellant’s claim, whether the
medical evidence established a diagnosed condition. This evidence is not sufficient to require
the Office to reopen appellant’s claim for consideration of the merits.
Appellant also submitted documents related to her previously accepted claims, including
letters from the Office discussing her accepted conditions and finding a conflict of medical
opinion evidence. These documents are not relevant to the issue of whether her accepted
employment activities on or after March 20, 2006 caused an occupational disease. As these
documents do not consist of medical evidence addressing whether a medical condition arose
from appellant’s employment activities on or after March 20, 2006, they are not sufficient to
require the Office to reopen appellant’s claim for consideration of the merits.
Appellant also submitted a work release note dated April 19, 2006 from Dr. Sampson, a
Board-certified family practitioner, indicating that she was totally disabled from April 19 to
24, 2006. Dr. Sampson stated that appellant’s disability was due to medical reasons but did not
provide the medical reasons or any diagnosed condition which resulted in her inability to work.
As this note does not provide a diagnosis it is not relevant to the reason for which the Office
denied appellant’s claim and is not sufficient to require the Office to reopen her claim for
consideration of the merits.
Appellant’s request for reconsideration did not include any relevant and pertinent new
evidence and therefore the Office properly declined to reopen her claim for consideration of the
merits.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing an
occupational disease as she failed to submit sufficient medical evidence in support of her claim.
The Office properly declined to reopen appellant’s claim for consideration of the merits. She
failed to submit relevant and pertinent new evidence not previously considered by the Office in
support of her request for reconsideration.

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ORDER
IT IS HEREBY ORDERED THAT the July 10 and January 31, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 3, 2008
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 08-780
Issued: December 19, 2008

Case Submitted on the Record

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

JURISDICTION
On January 22, 2008 appellant filed a timely appeal from a June 19, 2007 merit decision
of the Office of Workers’ Compensation Programs affirming the termination of his benefits on
July 18, 2006. He also filed a timely appeal from the September 5 and December 20, 2007
nonmerit Office decisions denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective July 18, 2006; (2) whether appellant met his burden
of proof to establish that he had any disability or condition after July 18, 2006, causally related to
the accepted employment injury; and (3) whether the Office properly denied appellant’s requests
for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
This case has previously been before the Board. The facts and the circumstances of the
case as set forth in prior decisions and orders are hereby incorporated by reference.1 The
relevant facts are summarized below.
On January 7, 1983 appellant, then a 34-year-old clerk, sustained a right knee contusion
with synovitis and permanent aggravation of degenerative disease of the right knee.2 On
March 14, 2005 Dr. Raymond G. Shea, appellant’s treating Board-certified orthopedic surgeon,
advised that appellant was totally disabled. He noted that appellant had pain and discomfort in
the knee. On October 31, 2005 Dr. Shea found that appellant continued to have pain and
stiffness in his right knee and was scheduled for a total knee replacement in January.
On December 13, 2005 the Office referred appellant to Dr. Martyn A. Goldman, a Boardcertified orthopedic surgeon, for a second opinion. Dr. Goldman was asked to address the
relationship of appellant’s current right knee condition to the January 7, 1983 injury and to note
the extent of any remaining disability. On January 10, 2005 Dr. Goldman diagnosed
degenerative joint disease and degenerative disc disease cervical spine, degenerative joint disease
lumbar spine, degenerative joint disease both knees (right worse than left), status post medial
meniscectomy right knee 1981, status post chondroplasty right knee 1994; and evidence of
symptom magnification. He opined that appellant’s right shoulder contusion had resolved and
that appellant’s current cervical symptoms were related to degenerative changes in the cervical
spine. Dr. Goldman advised that the changes in appellant’s right knee were the result of his
medial meniscectomy in 1981, his excess weight and the apparent proclivity to osteoarthritis
changes perhaps of a genetic nature. He did not find that appellant had any medical restrictions
as a result of the January 7, 1983 injury, noting these would be due to the preexisting injury to
the right knee and his osteoarthritic changes of the spine as a result of the normal aging process.
The Office found a conflict in medical opinion between Drs. Shea and Goldman with
regard to the extent of appellant’s disabilities. It referred appellant to Dr. Stanley William Collis,
a Board-certified orthopedic surgeon, selected as the impartial medical specialist. In a medical
report dated March 24, 2006, Dr. Collis diagnosed post meniscectomy of the medial meniscus on
the right knee due to a 1981 nonwork-related injury; temporary synovitis on the right knee due to
the January 7, 1983 work injury, which had been resolved; degenerative arthritis in the lower
cervical spine and minimal arthritis of the lumbar spine (not work related); normal shoulder
function; obesity; and marked psychosomatic element of his subjective complaints. He noted
that appellant experienced some pain “off and on” in the right knee due to the nonwork injury
and surgery he had in 1981 and to surgery in 1994. However, he did not find a problem with the
neck, back, or either shoulder. Dr. Collis opined that appellant’s complaints were more or less
psychosomatic and not work related. He advised that appellant’s subjective complaints
outweighed the objective findings. Dr. Collis did not find any physical restrictions as a result of
1

Docket No. 05-1869 (issued March 17, 2006); Docket No. 03-1382 (issued November 28, 2003) (Order
Dismissing Appeal); Docket No. 03-1276 (issued October 23, 2003); Docket No. 00-2068 (issued June 3, 2002).
2

In a separate claim, on March 5, 1984 appellant injured his right shoulder and neck in the performance of duty.
The Office accepted the claim for a cervical strain and right shoulder contusion.

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the January 7, 1983 injury and stated that the “only restrictions that he has would be inability to
do activities that require a lot of climbing, jumping, walking and squatting because of the
nonwork-related problem with this right knee.” He noted that appellant had not worked since
1984 and was unlikely to return to work considering his obesity and the unusual exaggeration of
his symptoms and complaints. Dr. Collis noted, “The only treatment I can think of now is maybe
some psychiatric treatment.” He did not recommend surgical treatment. On April 7, 2006 the
Office requested clarification from Dr. Collis. In an addendum dated April 21, 2006, Dr. Collis
stated that the arthritis to the medial aspect of appellant’s right knee and the chondroplasty he
had were not the result of the January 7, 1983 work injury. He reiterated that appellant had no
work-related impairment or restrictions.
On June 7, 2006 the Office issued a notice of proposed termination of appellant’s medical
and compensation benefits. It found that the medical evidence established that he had no
continuing disability as a result of the January 7, 1983 injury and that his condition had resolved.
By letter dated June 22, 2006, appellant objected to the proposed termination of benefits
and to the opinion of Dr. Collis. He contended that Dr. Collis improperly referred to him as
mute (appellant noted that he is deaf, but not mute) which he considered derogatory. Dr. Collis
wore a hearing aide and, pursuant to appellant’s interpreter, he had a hard time hearing and
understanding her speech. He requested another medical examination.
By decision dated July 18, 2006, the Office terminated appellant’s wage-loss
compensation and medical benefits effective that date.
In an August 15, 2006 progress note, Dr. Shea advised that appellant still had difficulties
with his right knee and that he was trying to have appellant approved for a total right knee
replacement. He disagreed with the opinion of Dr. Collis. Dr. Shea stated that he had followed
appellant since 1993 and would not recommend a total knee replacement unless he felt strongly
that appellant was a candidate. He attributed appellant’s need for surgery to the work-related
injury.
On October 12, 2006 appellant requested that the Office reconsider its decision
terminating his benefits.
On December 10, 2006 appellant underwent a right total knee replacement. On May 21,
2007 Dr. Stacie L. Grossfeld, a Board-certified orthopedic surgeon, opined that appellant was
still recovering from his surgery and was unable to work.
By decision dated June 19, 2007, the Office denied modification of the July 18, 2006
decision.3
By letter dated July 22, 2007, appellant again requested reconsideration.

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In a decision dated June 19, 2007, the Office noted that the medical evidence did not support that appellant
remained disabled as a result of the work-related injuries of January 7, 1983 or March 5, 1984. The Board notes that
benefits were only terminated with regard to the January 7, 1983 employment injury.

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In a September 28, 2007 report, Dr. George H. Raque, a Board-certified neurosurgeon,
noted that appellant was seen for neck problems related to an old work injury and had recently
undergone a cervical discectomy and fusion. Although, appellant appeared to be doing well
postoperatively, he could not return to work because of the recent surgery and due to knee
problems which were being treated by Dr. Shea. Dr. Raque concluded that appellant was
disabled from work and would remain so for the foreseeable future.
On August 13, 2007 Dr. Grossfeld indicated that appellant was a patient treated for workrelated injuries in 1983 and 1984 that resulted in end-stage osteoarthritis and the need for right
knee replacement surgery. He advised that appellant’s knee condition was directly related to his
work-related injuries. Dr, Grossfeld opined that appellant was unable to work and had a
complete medical disability. Appellant submitted an August 22, 2007 medical consultation
report concerning an abnormal electrocardiogram (EKG) and an August 30, 2007 report with
regard to his hypertension.
By decision dated September 5, 2007, the Office denied appellant’s request for
reconsideration without merit review.
In an October 2, 2007 note, Dr. John R. Dimar, II, a Board-certified family practitioner,
stated that appellant was disabled from employment and was still in the recovery phase following
major neck surgery. He concluded that the arthritic changes throughout appellant’s body, as
noted by Dr. Shea would probably preclude him from any gainful employment now or in the
future.
In a progress note dated December 5, 2007, Dr. Madhusudhan R. Yakkanti, a colleague
of Dr. Shea, indicated that appellant had severe osteoarthritis of the left knee and that he would
like to proceed with a left total knee arthroplasty.
On December 11, 2007 appellant requested reconsideration.
By decision dated December 20, 2007, the Office denied reopening appellant’s case for
further reconsideration of the merits.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.5 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
5

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Anna M. Blaine, 26 ECAB 351 (1975).

6

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

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The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. To terminate authorization for medical treatment, the
Office must establish that an employee no longer has residuals of an employment-related
condition which require further medical treatment.7
Section 8123(a) provides in pertinent part: If there is a disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.8 In situations where
there are opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.9
ANALYSIS -- ISSUE 1
The Office accepted that on January 7, 1983 appellant sustained a right knee contusion
with synovitis and permanent aggravation of degenerative disease of the right knee. Appropriate
compensation and medical benefits were paid. Appellant’s treating physician, Dr. Shea,
attributed appellant’s residuals and disability as a result of this injury. Dr. Goldman, a second
opinion physician, disagreed and opined that the changes in appellant’s right knee were due to a
previous medial meniscectomy in 1981, his excess weight and to his apparent proclivity for
osteoarthritis. In order to resolve the conflict in medical opinion, the Office properly referred
appellant to Dr. Collis for an impartial medical examination. In a well-rationalized opinion,
Dr. Collis found that appellant’s right knee arthritis and chronoplasty were not the result of the
January 7, 1983 work injury. He concluded that the temporary synovitis of the right knee due to
the accepted injury had resolved and that appellant no longer had any employment-related
impairment or restrictions.
Appellant contended that Dr. Collis treated him in an unprofessional manner. However,
his allegations are unsubstantiated and insufficient to overcome the special weight given to the
impartial medical examiner. Whether Dr. Collis wore a hearing aide during examination is
irrelevant as it is clear from his report that he was able to obtain an accurate history of injury and
medical treatment. Dr. Collis conducted a complete physical examination. There is no evidence
that Dr. Collis treated appellant in an improper manner. The Board finds that Dr. Collis, the
impartial medical examiner, provided a well-rationalized opinion which set forth findings on
physical examination of appellant. He determined that appellant’s accepted work injury had
resolved and the Office properly terminated wage-loss compensation and medical benefits based
on his medical opinion.10

7

T.P., supra note 6; Furman G. Peake, 41 ECAB 361, 364 (1990).

8

5 U.S.C. § 8123(a).

9

See Gloria J. Godfrey, 52 ECAB 486 (2001).

10

Manuel Gill, 52 ECAB 282 (2001).

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LEGAL PRECEDENT -- ISSUE 2
After a termination or modification of benefits which is clearly justified on the basis of
the evidence, the burden or proof to reinstate compensation benefits rests with the claimant. The
claimant must establish by the weight of reliable, probative and substantial evidence that a
disability related to employment continued to exist after termination of benefits.11 To establish
the requisite causal relationship, the claimant must submit a physician’s report which contains a
review of the factors of employment identified as causing the claimants condition and taking
those factors into consideration, along with the results of a clinical examination and the medical
history of the claimant, state whether these employment factors caused or aggravated by the
claimant’s condition.12 Neither the fact that a disease or condition manifests itself during a
period of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.13
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that he has any continuing disability
after July 18, 2006. To establish continuing disability and entitlement to medical benefits after
that date, appellant submitted December 10, 2006 operative report related to his total right knee
replacement and a May 21, 2007 note from Dr. Grossfeld who advised that appellant was still
recovering from surgery and was unable to work. These reports, however, do not address the
issue of whether appellant’s right knee surgery was due to his January 7, 1983 work injury.
They do not establish that appellant has residuals arising from this injury. Dr. Shea’s August 15,
2006 progress note disagreed with the opinion of Dr. Collis. He stated that appellant’s right knee
surgery was required due to his work-related injury. However, Dr. Shea’s opinion is repetitive of
his prior reports and is not sufficient to overcome the special weight given to Dr. Collis, the
impartial medical examiner. He found no continuing disability and advised that the right knee
surgery was not related to the accepted work injury. Accordingly, the Board finds that appellant
has failed to establish any disability or entitlement to medical benefits after July 18, 2006.
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,14 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously

11

Franklin D. Haislah, 52 ECAB 457 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990).
12

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

13

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

14

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).

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considered by the Office.15 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.16 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.17 The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record18 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.19
ANALYSIS -- ISSUE 3
The Office denied appellant’s requests for reconsideration finding that he did not meet
the requirements for a merit review with regard to the issue of whether there were any residuals
from his January 7, 1983 injury. As the issue is medical in nature, only medical evidence is
relevant to the issue on reconsideration.
In support of his reconsideration requests, appellant submitted reports by Dr. Dimar who
addressed his cervical condition, a report concerning appellant’s hypertension and a report of an
abnormal EKG. Appellant also submitted Dr. Yakkanti’s December 5, 2007 report discussing
appellant’s left knee condition. These medical reports do not pertain to appellant’s right knee
injury and are irrelevant to the issue on which his benefits were terminated. The Board has held
that the submission of evidence or argument which does not address the particular issue involved
does not constitute a basis for reopening a case.20 In his brief September 28, 2007 note,
Dr. Raque indicates that appellant could not go back to work due to recent neck surgery and
noted that his knee problems were being treated by Dr. Shea. However, he provided no opinion
as to the cause of these medical conditions other than noting that the neck condition was related
to “an old work injury.” On August 13, 2007 Dr. Grossfeld attributed appellant’s knee
replacement surgery to his work injuries, but he provided no explanation for this opinion. These
medical reports are duplicative of prior opinions already considered by the Office. The Board
has held that the submission of evidence or argument which repeats or duplicates evidence or
argument already in the case record does not constitute a basis for reopening a case.21
Appellant has not established that the Office improperly denied his request for further
review of the merits under section 8128(a) of the Act, because the evidence and argument he
submitted did not show that the Office erroneously applied or interpreted a specific point of law,
15

20 C.F.R. § 10.606(b)(2).

16

20 C.F.R. § 10.607(a).

17

20 C.F.R. § 10.608(b).

18

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

19

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

20

Id.

21

See supra note 14.

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advance a relevant legal argument not previously considered by the Office, or constitute relevant
and pertinent new evidence not previously considered by the Office.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective July 18, 2006. The Board further finds that
appellant has not met his burden of proof to establish that he has any continuing employmentrelated medical condition or disability after July 18, 2006. Finally, the Board finds that the
Office properly denied appellant’s requests for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 20, September 5 and June 19, 2007 are affirmed.
Issued: December 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF DEFENSE, DEPARTMENT
OF THE AIR FORCE, BUCKELY AIR FORCE
BASE, CO, Employer
__________________________________________

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

Docket No. 09-283
Issued: August 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 10, 2008 appellant filed a timely appeal from an October 17, 2008
nonmerit decision of the Office of Workers’ Compensation Programs that denied reconsideration
of a May 29, 2008 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit and nonmerit decisions in this case.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty; and
(2) whether the Office properly denied his request for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128.
FACTUAL HISTORY
On March 10, 2008 appellant, a 57-year-old store worker, filed an occupational disease
claim (Form CA-2) for trigger finger. He first became aware of his condition on June 1, 2007
and realized its relation to his federal employment on December 28, 2007. Appellant attributed

his condition to stocking items at the store where he is employed. He reported that in the course
of stocking items, he grabs items, using his fingers in a compressed position.
Appellant submitted a December 27, 2007 note signed by Dr. Pierre T. Onda, a Boardcertified internist, who reported that he “may have work-related injuries and we recommend [him
to] be evaluated by the occupational medicine department.” In a separate report, also dated
December 27, 2007, Dr. Onda diagnosed him with an inguinal hernia and trigger finger.
Appellant submitted a personal note dated January 10, 2008, which he identified stocking
shelves as the potential cause of his condition. He stated that he discussed the matter with his
physician, Dr. Onda who told him that grabbing items with fingers in a compressed position
could cause trigger finger. Appellant reported that he was aware of his condition in June 2007
but assumed that it was caused by his diabetes or osteoarthritis.
By decision dated May 29, 2008, the Office denied appellant’s claim because the
evidence of record did not demonstrate the claimed medical condition was related to the
established work-related events.
Appellant disagreed and requested reconsideration. In support of his reconsideration
request, he submitted an August 25, 2008 medical note signed by Dr. Onda who asserted that
appellant’s acquired trigger fingers condition was work related. Dr. Onda asserted that
appellant’s job involved repetitive hand motions and, therefore, it was more than likely that his
job activities had contributed to the causation of his condition.
By decision dated October 17, 2008, the Office denied reconsideration of its May 29,
2008 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

Supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

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the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of 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 employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS -- ISSUE 1
Appellant identified stocking items at the store where he is employed as factors of his
employment that produced his alleged injury. His burden is to establish, through the production
of rationalized medical opinion evidence based on a complete factual and medical background, a
causal relationship between the employee’s diagnosed condition and the compensable
employment factors. The Board finds the evidence of record insufficient to meet this burden
and, therefore, appellant has not established that he sustained an injury in the performance of
duty.
The relevant evidence of record consisted of two notes dated December 27, 2007 signed
by Dr. Onda and appellant’s January 10, 2008 personal note.
Appellant’s personal note is of no probative value because an award of compensation
may not be based on surmise, conjecture, speculation or his belief of causal relationship.8 Causal
relationship is a medical issue and must be established by a well-reasoned medical opinion.

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 57 (1979). See also Edgar G. Maiscott, 4
ECAB 558 (1952) (holding appellant’s self-serving declarations do not, in the opinion of the Board, constitute
evidence of a sufficiently substantial nature).

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Because lay opinions carry no evidentiary weight, appellant’s personal note is of no probative
medical value and insufficient to meet his burden.9
Dr. Onda’s notes are of diminished probative value as the content of one of the notes
indicates his opinion is equivocal and the other note lacks an opinion on causal relationship. In
his note, he reported that appellant “may have work-related injuries and we recommend
[appellant] be evaluated by the occupational medicine department.” This is an equivocal
statement because, as a matter of law, such terms as “suspected, could, may, might be or
probably” indicate that the report is equivocal, speculative or conjectural and, therefore, the
report is of diminished probative value.10
While Dr. Onda’s other note also dated December 27, 2007, proffered a diagnosis, it is of
limited probative value because it does not provide an opinion on the causal relationship between
the diagnosed condition and the identified factors of appellant’s employment. The Board has
consistently held that medical reports lacking a rationale on causal relationship are of diminished
probative value.11
As there was no probative rationalized medical evidence of record establishing
appellant’s trigger finger was causally related to the identified factors of his employment, he had
not established he sustained an injury in the performance of duty, as of May 29, 2008 the date the
Office initially denied his claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,12 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.13 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.14 When a claimant

9

See Sheila Arbour (Victor E. Arbour), 43 ECAB 779 (1992).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).
11

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

12

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.607(a).

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fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.15
The Board also has held that the submission of evidence that does not address the
particular issue involved does not constitute a basis for reopening a case.16 While the reopening
of a case may be predicated solely on a legal premise not previously considered, such reopening
is not required where the legal contention does not have a reasonable color of validity.17
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision. The Board finds that the
Office did not consider all evidence submitted in support of appellant’s reconsideration request.18
Appellant’s August 28, 2008 reconsideration request neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, it did not
advance a relevant legal argument not previously considered by the Office. Therefore, appellant
is not entitled to a review of the merits of his claim based upon the first and second above-noted
requirements under section 10.606(b)(2).19
However, appellant did satisfy the third requirement under section 10.606(b)(2). He
submitted relevant and pertinent new evidence with his August 28, 2008 reconsideration request.
With appellant’s reconsideration request, he submitted an August 25, 2008 note signed by
Dr. Onda who asserted that appellant’s acquired trigger finger condition was work related.
Dr. Onda asserted that his job involved repetitive hand motions and, therefore, it was more likely
than not that his job activities had contributed to the causation of his condition. This medical
note is relevant and pertinent new evidence because it constitutes evidence of a physician’s
medical opinion which is relevant to a medical issue underlying the case at hand. As Dr. Onda’s
opinion in this report was not speculative, this report was not merely duplicative of his prior
reports. The record reflects that this medical note, though filed with the wrong claim number,
was of record at the time the Office made its October 17, 2008 decision.
The Act20 provides that the Office shall determine and make findings of fact in making an
award for or against payment of compensation after considering the claim presented by the
employee and after completing such investigation as it considers necessary with respect to the
claim.21 Since the Board’s jurisdiction of a case is limited to reviewing that evidence which was
15

Id. at § 10.608(b).

16

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

17

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

18

William A. Couch, 41 ECAB 548 (1990).

19

20 C.F.R. § 10.606(b)(2)(i) and (ii).

20

5 U.S.C. § 8101 et seq.

21

5 U.S.C. § 8124(a)(2); 20 C.F.R. § 10.130; see generally Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsideration, Chapter 2.1602.7 (October 2005).

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before it at the time of its final decision,22 it is necessary that the Office review all evidence
submitted by a claimant and received by it prior to issuance of its final decision. As Board
decisions are final as to the subject matter appealed,23 it is crucial that all evidence relevant to
that subject matter which was properly submitted to it prior to the time of issuance of its final
decision be addressed by the Office.
In the instant case, the Office did not review all the evidence of record prior to issuing its
October 17, 2008 final decision, i.e., the August 25, 2008 medical note signed by Dr. Onda. The
Board, therefore, must set aside its October 17, 2008 compensation order and remand the case to
the Office to fully consider the evidence which was properly submitted by appellant prior to the
October 17, 2008 compensation order.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty. The Board also finds this case is not in posture for decision as the Office
did not consider all evidence submitted in support of appellant’s reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed. The Board also orders that the October 17, 2008
decision of the Office is set aside and the case is remanded to the Office for further development
in accordance with this decision.
Issued: August 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

22

20 C.F.R. § 501.2(c).

23

Id. at § 501.6(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, MANHATTAN
VEHICLE MAINTENANCE FACILITY,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0265
Issued: June 23, 2021

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 December 17, 2020 appellant filed a timely appeal from a June 25, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 24, 2019, 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 this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 27, 2018 appellant, then a 48-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that on that date he sustained a left shoulder injury
when he opened the back door of a truck while in the performance of duty. He asserted in so
doing, he felt a pulling sensation and sudden pain in his left shoulder. Appellant stopped work on
February 27, 2018.
Appellant submitted a March 15, 2018 note from Dr. Samirlal Amin, a Board-certified
family medicine physician, who indicated that appellant was not able to work from March 12
through 20, 2018 due to his “medical problems.” In a March 19, 2018 note, Dr. Amin indicated
that he advised appellant to be homebound until March 26, 2018 due to “left shoulder
inflammatory disease.”
In a development letter April 4, 2018, OWCP informed appellant that additional evidence
was required to establish his claim. It advised him of the type of factual and medical evidence
needed and attached a questionnaire for his completion. OWCP afforded appellant 30 days to
respond.
Appellant submitted a February 28, 2018 note from Dr. Amin who indicated that appellant
had been advised to be homebound until at least March 12, 2018 due to an inflammatory left
shoulder. The findings of a March 26, 2018 magnetic resonance imaging (MRI) scan of
appellant’s left shoulder contained an impression of partial tear of the supraspinatus tendon,
possible mild biceps tenosynovitis, and mild acromioclavicular joint disease.
In an April 2, 2018 note, Dr. Amin indicated that he advised appellant to be homebound
until at least May 14, 2018 due to a left shoulder injury. In another April 2, 2019 note, he
prescribed physical therapy for a partial tear of the left supraspinatus tendon, and partial left biceps
tenosynovitis with mild acromioclavicular arthritis and abutment of the supraspinatus tendon.
In an April 12, 2018 attending physician’s report (Form CA-20), Dr. Amin listed a history
of employment injury as “sudden severe pain right shoulder with radiculopathy on [February 27,
2018].” He diagnosed partial tear of the right supraspinatus tendon, and acromioclavicular
arthrosis with abutment of the supraspinatus tendon, and opined that appellant was totally disabled
from February 28 through May 15, 2018.
By decision dated May 17, 2018, OWCP accepted that the February 27, 2018 employment
incident occurred as alleged, but denied his claim as he failed to provide sufficient medical
evidence to establish causal relationship between the accepted incident and a specific diagnosed
condition. This decision failed to include appellant’s appeal rights. On May 23, 2018 OWCP
issued subsequent decision, which superseded its May 17, 2018 decision, denying appellant’s
claim on the same bases, and which contained the proper appeal rights.

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On May 11, 2019 appellant, through counsel, requested reconsideration of the May 23,
2018 decision. He submitted a January 25, 2019 report of Dr. Damien I. Davis, a Board-certified
orthopedic surgeon, who noted that appellant presented to his office on May 23, 2018 complaining
of left shoulder pain from a February 2018 incident when he lifted the back door of his postal
truck. Dr. Davis discussed the physical examination findings from the May 23, 2018 visit,
including slight tenderness to palpation over the long head of the left biceps. He noted, “It is
within reasonable degree of medical certainty that [appellant’s] injury and subsequent shoulder
pain is [sic] a direct result of him lifting the back door of his truck in February of 2018.”
In a May 11, 2019 brief, counsel argued that Dr. Davis’ January 25, 2019 report established
causal relationship between the accepted February 27, 2018 employment incident and a specific
diagnosed left shoulder condition.
By decision dated June 24, 2019, OWCP denied modification of the May 23, 2018
decision.
On June 18, 2020 appellant, through counsel, requested reconsideration of the June 24,
2019 decision. In a statement of the same date, counsel argued that the previously submitted
January 25, 2019 report of Dr. Davis explained in detail how appellant’s left shoulder condition
was caused by the February 27, 2018 incident at work. He argued that this report was sufficiently
well rationalized to require OWCP to refer appellant to an appropriate specialist for an evaluation
and an opinion on the issue of causation.3
By decision dated June 25, 2020, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5

3

Counsel cited L.G., Docket No. 16-1065 (issued October 13, 2016) in support of this proposition.

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5
20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

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A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record9 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On June 18, 2020 appellant filed a timely request for reconsideration of a June 24, 2019
decision.11 The Board finds, however, that he neither established that OWCP erroneously applied
or interpreted a specific point of law, nor did he advance a relevant legal argument not previously
considered by OWCP. Appellant argued that he had submitted sufficient medical evidence in
support of his claim for a February 27, 2018 traumatic injury, including a January 25, 2019 report
of Dr. Davis, to require OWCP to remand the case for further development of the medical
evidence. However, the Board notes that OWCP had already considered and rejected this
argument when it previously denied appellant’s claim. OWCP had previously reviewed Dr. Davis’
January 25, 2019 report and found that it was not of sufficient probative value to require either
acceptance or further development of appellant’s claim. The Board has held that the submission
of evidence/argument which repeats or duplicates evidence or argument already in the case record
does not constitute a basis for reopening a case.12 Accordingly, the Board finds that appellant is not
entitled to a review of the merits based on either the first or second requirement under 20 C.F.R.
§ 10.606(b)(3).

6

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
9

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

10

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11

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

12

See supra note 9.

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On reconsideration, appellant did not submit any new medical evidence. The underlying
issue of the present case is medical in nature and appellant has not submitted pertinent new and
relevant evidence in connection with his reconsideration request. Therefore, 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).
The Board accordingly finds that appellant has not met any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 23, 2021
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Santa Clarita, CA,
Employer
__________________________________________

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

Docket No. 09-1624
Issued: February 26, 2010

Case Submitted on the Record

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

JURISDICTION
On June 10, 2009 appellant filed a timely appeal from a May 11, 2009 nonmerit decision
of the Office of Workers’ Compensation Programs, denying her request for reconsideration as
untimely and finding that it failed to establish clear evidence of error. Because more than one
year has elapsed between the last merit decision dated January 8, 2008 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant contends that her request for reconsideration was timely filed.

FACTUAL HISTORY
This case has been before the Board on a prior appeal. By decision dated April 20, 2007,
the Board affirmed a March 26, 2006 decision of the Office denying appellant’s claim for
compensation for partial disability from August 27 to November 3, 2005 and leave buyback for
the period August 24 to 25, 2005.1 The Board found that the reports of Dr. John T. Harbaugh,
Board-certified in family practice and occupational health, were of diminished probative value as
the physician failed to support his opinion with objective evidence The facts contained in that
decision are incorporated herein by reference.2
Appellant filed claims for wage-loss compensation for the period April 2 to June 9, 2006.
She submitted reports from Dr. Harbaugh and a report from Dr. Andrea Nachenberg, a treating
Board-certified physiatrist.
On June 14, 2006 the Office issued a decision denying appellant’s claim for wage-loss
compensation beginning April 2, 2006. It found the evidence insufficient to establish her claim
of wage-loss compensation for the period in question.
Subsequent to the June 14, 2006 decision, the Office received additional reports from
Dr. Harbaugh.
On June 22, 2006 appellant’s requested a telephonic hearing before an Office hearing
representative, which was held on October 6, 2006.
By decision dated December 14, 2006, the Office hearing representative affirmed the
June 14, 2006 decision denying appellant’s claim for wage-loss compensation for the period
April 2 through June 9, 2006.
In a letter dated November 19, 2007, appellant requested reconsideration of the
December 16, 2006 decision and submitted additional medical evidence in support of her
request.
By decision dated January 8, 2008, the Office denied modification of its prior decision
denying her claim.
On a form dated January 8, 2009 appellant requested reconsideration and submitted
medical evidence with her request.

1

Docket No. 06-1532 (issued April 20, 2007).

2

On June 12, 2001 appellant, then a 46-year-old clerk, filed an occupational disease claim alleging that on
March 31, 1999 she first realized that her cervical degenerative disc disease had been permanently aggravated by her
employment. She noted that on May 15, 1998 she first became aware of this condition. On the back of the form, the
employing establishment noted that appellant had been on limited duty since April 13, 1999 due to her accepted
carpal tunnel syndrome under claim file number xxxxxx901. The Office accepted the claim for cervical
radiculopathy and authorized cervical surgery, which was performed on June 29, 2004.

2

In a May 11, 2008 decision, the Office found that appellant’s January 8, 2009
reconsideration request, which was received on January 13, 2009, was dated more than one year
after the January 8, 2008 decision and was untimely. It further found that she did not submit any
evidence establishing clear evidence of error in the Office’s denial of her wage-loss claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.4 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.5 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.6
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error.7 The term
“clear evidence of error” is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that the Office made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to the Office’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.8 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.9
3

5 U.S.C. §§ 8101 et seq.

4

20 C.F.R. § 10.605.

5

Id. at § 10.607(a).

6

5 U.S.C. § 8128(a); E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Leon D. Faidley, Jr.,
41 ECAB 104 (1989).
7

D.O., 60 ECAB ___ (Docket No. 08-1057, issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005);
Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).
See E.R., supra note 6.
9

See W.G., 60 ECAB ___ (Docket No. 08-2340, issued June 22, 2009); S.D., 58 ECAB 713 (2007);
Alberta Dukes, 56 ECAB 247 (2005).

3

ANALYSIS
The Office issued a decision on May 11, 2009, which denied appellant’s request for
reconsideration of its January 8, 2008 decision on the grounds that the request was untimely filed
and failed to establish clear evidence of error. The Board finds that the Office erroneously found
appellant’s request to be untimely within the one-year time limitation period set forth at
20 C.F.R. § 10.607.
Appellant’s request for reconsideration was dated January 8, 2009. The one-year time
limitation begins the day the Office issued its original decision, which was dated
January 8, 2008.10 Therefore, the Board finds that appellant had until January 8, 2009 to file her
request. A right to reconsideration within one-year accompanies any merit decision on the
issues, including a decision issued by the Board.11 The Board notes that the Office’s procedure
manual, Chapter 2.1602.3(b)(1), provides that timeliness for a reconsideration request is
determined not by the date the Office receives the request, but by the postmark on the
envelope.12 The procedure manual provides that timeliness is determined by the postmark on the
envelope, if available. Otherwise, the date of the letter itself should be used.13
The January 8, 2009 reconsideration request was received by the Office on January 13,
2009; however, the envelope containing the reconsideration request was not retained in the
record. The Board finds that the reconsideration request was timely and that the Office
improperly denied appellant’s request by applying the legal standard reserved for cases where
reconsideration is requested after more than one year. Since it erroneously reviewed the
evidence submitted in support of her reconsideration request under the clear evidence of error
standard, the Board will remand the case for review of this evidence under the proper standard of
review for a timely reconsideration request.14
CONCLUSION
The Board finds that appellant’s request for reconsideration was timely filed.

10

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.3(a) (January 2004). See A.F., 59 ECAB
___ (Docket No. 08-977, issued September 12, 2008); V.B., 58 ECAB 725 (2007); Veletta C. Coleman, 48 ECAB
367, 369 (1997).
11

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.3(b)(1); Larry J. Lilton, 44 ECAB
243 (1992).
12

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.3(b)(1) (January 2004). See 20 C.F.R.
§ 10.607(a)
13

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.1602.3(b)(1) (January 2004).

14

See Donna M. Campbell, 55 ECAB 241 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2009 is set aside. The case is remanded for further
consideration consistent with this decision of the Board.
Issued: February 26, 2010
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0230
Issued: April 24, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 9, 2016 appellant, through counsel, filed a timely appeal from a July 8, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this 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 authorization for left knee replacement
surgery.
FACTUAL HISTORY
On June 25, 2010 appellant, then a 47-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on June 15, 2010, she stumbled while descending steps and injured her
left knee in the performance of duty. She stopped work on June 15, 2010. OWCP accepted the
claim for tear of the left knee lateral meniscus. OWCP paid appellant wage-loss compensation
benefits on the supplemental rolls as of September 13, 2011. It also authorized December 16, 2011
arthroscopic surgery of the left knee.
Appellant returned to limited-duty work on
February 25, 2012.
A magnetic resonance imaging (MRI) scan of the left knee, performed on May 23, 2012,
revealed further degenerative changes of the left knee involving the femoral condyles medially
and degeneration of the medial meniscus.3 In an August 20, 2013 report, Dr. Gary W. Muller, an
orthopedic surgeon, noted appellant’s history of injury and the medical treatment she had received,
including the approved arthroscopic surgery. He provided examination findings and indicated that
current diagnostic studies showed significant degenerative changes in all three compartments.
Dr. Muller explained that the constant standing and walking, and bending and twisting to retrieve
mail and packages caused significant pain and stress to appellant’s left knee. He noted that the
recent MRI scan of May 23, 2012 revealed advanced tricompartmental changes in the joint spaces,
especially prominently medial with slight subluxation of the medial femoral condyle, bone-onbone configuration of the medial condyle with marrow edema, fragmentation and degeneration of
the medial meniscus. Dr. Muller indicated that appellant failed all conservative treatment and
recommended total knee arthroplasty. He explained that appellant had worked as a mail carrier
for many years and had significant degenerative changes which were related to the demands of her
job, as well as the meniscus tears that were documented at the time of arthroscopy. Dr. Muller
explained that when someone has undergone meniscectomies degenerative changes progress, but
the meniscus, which acts as the cushion, is lost. He opined that appellant’s continued symptoms
and need for total knee arthroplasty were related to her work-related injury, subsequent surgery
and meniscectomies that were performed, as well as the preexisting degenerative disease of her
left knee.
On September 16, 2013 OWCP accepted a recurrence of disability, effective
June 21, 2013. It also expanded acceptance of appellant’s claim to include the additional condition
of derangement lateral meniscus, left.
In October 2013, OWCP referred appellant to Dr. Stanley R. Askin, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether appellant continued
3

The MRI scan showed advanced tricompartmental degenerative changes in the joint space especially prominent
medially with slight subluxation of the femoral condyles medially. There was bone-on-bone configuration of the
medial condyle with marrow edema and fragmentation and degeneration of the medial meniscus. Other changes were
also noted.

2

to have residuals of the accepted conditions, whether she had any additional conditions that were
causally related to the work injury, and whether she was disabled from work due to her workrelated injury of June 15, 2010. In a November 8, 2013 report, Dr. Askin provided a history of the
injury and his findings on examination. He related that the accepted work-related injuries had
resolved and the current knee conditions of osteoarthritis of the left knee and need for knee
replacement surgery were not due to the work injury. Dr. Askin noted that appellant’s
osteoarthritis of the knees were documented as troublesome prior to the June 15, 2010 work injury
and opined that any disability was related to her preexisting conditions and not the accepted work
injury.
On February 20, 2014 OWCP received Dr. Muller’s request for total left knee arthroplasty.
By development letter dated February 21, 2014, OWCP advised appellant of the specific
evidence needed to support her request for total left knee replacement surgery. It afforded her 30
days to submit such evidence.
In a March 17, 2014 report, Dr. Muller indicated that appellant’s employment duties and
the treatments she received, which included the arthroscopy and meniscectomies, hastened the
progression of the degenerative joint disease to the point where knee replacement surgery was
necessary.
On May 21, 2014 OWCP found a conflict of medical opinion existed between Dr. Muller
and Dr. Askin as to whether the need for surgery was causally related to the work injury. Appellant
was referred, along with a statement of accepted facts and the medical record, to Dr. Thomas
O’Dowd, a Board-certified orthopedic surgeon, for an impartial medical evaluation. In a June 3,
2014 report, Dr. O’Dowd provided a history of the injury and his findings on examination. He
noted that appellant had denied any previous injury to the left knee. Dr. O’Dowd indicated that
the MRI scan studies were not readable, but he had copies of the MRI scan reports, which he
reviewed along with the medical records. He advised that appellant developed significant threecompartment degenerative joint disease in both her knees which was not specifically due to any
single episode of trauma, including the June 15, 2010 trauma. Dr. O’Dowd indicated that appellant
was undergoing treatment for her left knee at least 10 months or longer prior to the reported
June 15, 2010 work injury. He noted that appellant’s treating physician had indicated that this was
related to her employment duties over a period of time, but no specific prior injury was noted.
Dr. O’Dowd opined that it was unlikely that appellant’s arthritis in her left knee were directly
related to a single episode of trauma, but it was debatable was to whether a lifetime of work
activities contributed to this condition. He noted that she had advanced degenerative joint disease
at the time of surgery and was being treated for degenerative joint disease with conservative care
in August 2009, 10 months prior to the surgery. Dr. O’Dowd related that while the June 15, 2010
work injury may have slightly exacerbated the underlying problem, the main problem was her
underlying degenerative joint disease for which she had been in treatment for close to a year prior.
He indicated that unless she had clear-cut evidence of a significant trauma with significant edema
and injury to the knee, the June 15, 2010 work injury was unlikely the cause of her ongoing
persistent arthritis. Dr. O’Dowd concluded that while appellant probably would need bilateral
knee replacements, the cause was the underlying degenerative arthritis and not the single episode
of trauma to the left knee as reported from June 15, 2010. He also requested copies of all of

3

Dr. Muller’s and Dr. Askin’s office notes and diagnostic studies for review to see the progression
of the arthritis.
By decision dated July 29, 2014, OWCP denied appellant’s request for a left total knee
arthroplasty because the medical evidence of record failed to support that the procedure was
causally related to her June 15, 2010 work injury. The weight of the medical evidence was given
to Dr. O’Dowd’s June 3, 2014 report.
On August 5, 2014 appellant, through counsel, requested a hearing before an OWCP
hearing representative. By decision dated October 24, 2014, the hearing representative vacated
the July 29, 2014 OWCP decision and remanded the case for additional development. He found
that Dr. O’Dowd provided an equivocal and inadequately rationalized medical report which was
insufficient to resolve the conflict in medical opinion regarding the proposed total left knee
arthroscopy. The hearing representative requested that OWCP obtain a clarification of
Dr. O’Dowd’s report.
On June 25, 2015 OWCP requested that Dr. O’Dowd review the medical evidence and
provide a supplemental opinion on whether the total left knee arthroplasty was causally related to
the accepted June 15, 2010 employment injury. In a July 10, 2015 response, Dr. O’Dowd related
that he needed to review the MRI scan studies from June 2010 and May 2012 and compare them
to see if there was a significant interval change in the studies, though the reports indicated that
probably was the case. He additionally indicated that he would like to see the records from
appellant’s treating physician in 2009, a year prior to the accident, when she was being treating for
both of her knees with significant degenerative joint disease, which was noted at that time.
On October 21, 2015 OWCP provided Dr. O’Dowd with MRI scans of the left knee dated
June 22, 2010 and May 23, 2012 and medical reports from Dr. Adam Pasternack, a family
practitioner, dated July 30, August 18, October 5, 12, and 19, and December 7, 2009.
Dr. O’Dowd reviewed the evidence provided on October 21, 2015. In an October 26, 2015
report, he indicated that the medical reports from 2009 documented appellant’s ongoing problem
with the left and right knee related to chronic arthritis. Dr. O’Dowd related that this clearly
indicated that appellant had an underlying and preexisting problem in her left knee. The June 2010
MRI scan showed a preexisting arthritic condition without any acute injury to the knee. It showed
some fluid in the knee, a complete loss of cartilage on the medial femoral and tibial cartilage, and
also complete loss of cartilage in the patellofemoral joint. There was a lesser degree of arthritis in
the lateral knee joint. Therefore, at the time of injury, Dr. O’Dowd found there were no acute
changes in the knee. There was also no evidence of edema in the bone, soft tissue injury, etc.
Dr. O’Dowd found that this MRI scan documented chronic degenerative joint disease which could
not be from a single episode of trauma, particularly as there were no acute changes on the MRI
scan. He advised that the subsequent MRI scan, done two years later, showed progression of the
arthritis. The medial degenerative joint disease had progressed significantly as had the lateral and
the patellofemoral joint disease. Dr. O’Dowd opined that, based on this information as well as his
June 3, 2014 examination, appellant’s June 15, 2010 work injury did not result in the need for a
left total knee replacement. Rather, her underlying knee arthritis was responsible for the need for
the requested arthroplasty. Dr. O’Dowd explained that the June 15, 2010 work injury did not show
any acute changes except the preexistent chronic and significant cartilage loss on the medial joint

4

and the patellofemoral joint and, to a lesser degree, the lateral joint. The progression of the arthritis
evident on the May 2012 MRI scan was a natural progression of this underlying significant
degenerative joint disease. Dr. O’Dowd concluded that the work-related injury was not the
ultimate cause of the need for her total knee replacements in both the left and right knee.
By decision dated December 18, 2015, OWCP denied authorization for the total left knee
arthroplasty, finding that Dr. O’Dowd’s opinion represented the special weight of the medical
evidence.
On December 29, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative, which was held by video on April 25, 2016. Both appellant and
counsel indicated that the request for total left knee replacement should be authorized as it was
due to the effects of the work injury.
Subsequent to the hearing, OWCP received medical records and treatment notes from
Dr. Muller, dated from November 5, 2015 to April 20, 2016. In his April 27, 2016 report,
Dr. Muller disagreed with Dr. O’Dowd’s opinion that the accepted work injury did not accelerate
or contribute to the need for a left knee replacement. He indicated that the June 22, 2010 MRI
scan showed a horizontal tear of the posterior horn of the medial meniscus and an anterior horn
lateral meniscus tear and a grade 1 sprain of the medial collateral. Dr. Muller noted that appellant
had subsequent arthroscopic surgery and two years later, the May 23, 2012 MRI scan showed
advanced degenerative changes in the medial compartment with associated loss of the cartilage on
the condyle and the plateau and osteochondral lesion on the lateral femoral condyle. He advised
that this indicated advanced tricompartmental changes in the joint space which was secondary to
appellant’s meniscectomy and, because she lost some of her cushion “cartilage,” resulted in the
progression of the degenerative disease. Dr. Muller opined that this was secondary to the fact
appellant required a meniscectomy after the work injury and it was common to see advancement
of arthritic changes in the joint after a patient had a meniscectomy. He indicated that appellant
had significant advancement of the degenerative changes in the joint since the arthroscopy and
meniscectomy, which was supported by numerous clinical studies that document the progressive
degenerative changes that occur in a meniscus deficient knee. Dr. Muller concluded that
appellant’s work injury caused or contributed to the need for left knee replacement surgery.
By decision dated July 8, 2016, an OWCP hearing representative affirmed OWCP’s
December 18, 2015 decision. Special weight was accorded to Dr. O’Dowd’s reports, which
opined that the requested surgery was not due to the June 15, 2010 work injury, but was rather due
to appellant’s preexisting degenerative joint disease condition.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.6 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.7 To be entitled to
reimbursement of medical expenses, a claimant has the burden of proof to establish that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition. Proof of causal relationship must include supporting rationalized medical evidence.8
In order for a surgical procedure to be authorized, a claimant must submit evidence to show that
the surgery is for a condition causally related to an employment injury and that it is medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.10 The implementing regulations provide 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 OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.12
ANALYSIS
The Board finds that OWCP properly denied authorization for the total left knee
replacement surgery.

5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

See D.K., 59 ECAB 141 (2007).

7

Minnie B. Lewis, 53 ECAB 606 (2002).

8

M.B., 58 ECAB 588 (2007).

9

R.C., 58 ECAB 238 (2006).

10

5 U.S.C. § 8123(a); Guiseppe Aversa, 55 ECAB 164 (2003).

11

20 C.F.R. § 10.321.

12

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

6

OWCP accepted that appellant sustained a traumatic injury on June 15, 2010 causing tear
of the left knee lateral meniscus and derangement of left lateral meniscus.
Arthroscopic surgery was authorized on December 16, 2011. On February 20, 2014
OWCP received Dr. Muller’s request for total left knee arthroplasty. It determined that a conflict
in medical opinion existed between appellant’s attending physician, Dr. Muller, who indicated that
appellant’s employment injury and the treatments she received, including the arthroscopy and
meniscectomies, had hastened the progression of the preexisting degenerative joint disease to the
point that the knee replacement surgery was necessary; and Dr. Askin, an OWCP referral
physician, who opined that the accepted work-related injury had resolved and the current knee
conditions of osteoarthritis of the left knee and need for knee replacement surgery were not due to
the work injury. Consequently, it referred appellant to Dr. O’Dowd to resolve the conflict in
medical opinion evidence, pursuant to 5 U.S.C. § 8123(a).
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. O’Dowd, the impartial medical specialist, who examined appellant, reviewed the medical
evidence, and found that the total left knee arthroplasty was not medically warranted. As noted,
for a surgical procedure to be authorized, a claimant must show that the surgery is for a condition
causally related to the accepted work injury and that it is medically warranted.13
In a June 3, 2014 report, Dr. O’Dowd provided a history of the injury and his findings on
examination. He related that it was unlikely that appellant’s problems in her left knee were directly
related to a single episode of trauma. Dr. O’Dowd indicated that while the June 15, 2010 work
injury may have slightly exacerbated the underlying problem, the main problem was her
underlying degenerative joint disease for which she had been in treatment for close to a year prior.
He indicated that while appellant would need knee replacements in both knees, unless there was
clear-cut evidence of a significant trauma with significant edema and injury to the knee, the
June 15, 2010 work injury was unlikely the cause of her ongoing persistent arthritis. Dr. O’Dowd
thus requested copies of all of Dr. Muller and Dr. Askin’s office notes and diagnostic studies for
review to determine the progression of the arthritis.
On October 21, 2015 OWCP provided Dr. O’Dowd with MRI scans of the left knee dated
June 22, 2010 and May 23, 2012 and medical reports from Dr. Pasternack dated July 30,
August 18, October 5, 12, and 19, and December 7, 2009. Dr. O’Dowd reviewed the evidence
provided on October 21, 2015 and opined, in an October 26, 2015 report, that the work-related
injury was not the ultimate cause of the need for her bilateral total knee replacements. He indicated
that the June 2010 MRI scan showed a preexisting arthritic condition without any acute injury to
the knee. The MRI scan showed some fluid in the knee, a complete loss of cartilage on the medial
femoral and tibial cartilage, a complete loss of cartilage in the patellofemoral joint, and a lesser
degree of arthritis in the lateral knee joint. Therefore, at the time of injury, Dr. O’Dowd found that
there were no acute changes in the knee. There was also no evidence of edema in the bone, soft
tissue injury, etc. Dr. O’Dowd explained that this MRI scan documented chronic degenerative
joint disease which could not form a single episode of trauma, as there were no acute changes on
the MRI scan. He advised that the subsequent MRI scan, performed two years later, showed
13

See P.F., Docket No. 16-0693 (issued October 24, 2016).

7

progression of the arthritis. The medial degenerative joint disease had progressed significantly as
had the lateral and the patellofemoral joint disease. Dr. O’Dowd opined that, based on this
information as well as his June 3, 2014 examination, appellant’s June 15, 2010 work injury did not
result in the need for a left total knee replacement. Rather, appellant’s underlying knee arthritis
was responsible for the need for the arthroplasty. Dr. O’Dowd explained that the June 15, 2010
work injury did not show any acute changes except the preexistent chronic and significant cartilage
loss on the medial joint and the patellofemoral joint and, to a lesser degree, the lateral joint. The
progression of the arthritis evident on the May 2012 MRI scan was a natural progression of this
underlying significant degenerative joint disease. Dr. O’Dowd concluded that the work-related
injury was not the ultimate cause of the need for her total knee replacements in both the left and
right knee.
The Board finds that Dr. O’Dowd’s reports represent the special weight of the medical
evidence and that OWCP properly relied on his reports in denying the requested surgery. The
Board finds that he had full knowledge of the relevant facts and evaluated the course of her
condition, he is a specialist in the appropriate field, his opinion is based on proper factual and
medical history, and his report contained a detailed summary of this history. Dr. O’Dowd
addressed the medical records and made his own examination findings to reach a reasoned
conclusion regarding appellant’s condition and to support that the total left knee arthroplasty was
not medically warranted as the underlying knee arthritis, not the June 15, 2010 work injury, was
responsible for the need for the arthroplasty.14
In his April 27, 2016 report, Dr. Muller opined that appellant’s accepted injury and the
resulting meniscectomy caused and contributed to the need for left knee replacement surgery,
along with some of the preexisting disease. He discussed the June 22, 2010 and May 23, 2012
MRI scan results and advised that the advanced tricompartment changes in the joint space were
secondary to appellant’s meniscectomy because she lost some of her cushion “cartilage,” which
resulted in the progression of the degenerative disease. Dr. Muller explained appellant required a
meniscectomy after the work injury and it was common to see advancement of arthritic changes
in the joint after a patient has an arthroscopy and a meniscectomy. He indicated that appellant had
significant advancement of the degenerative changes in the joint since the arthroscopy and
meniscectomy. Reports from a physician who was on one side of a medical conflict that an
impartial medical examiner resolved are generally insufficient to overcome the special weight of
the impartial medical examiner, or to create a new conflict.15 While Dr. Muller asserted that the
need for a left total knee replacement was related to the June 15, 2010 work injury, he failed to
differentiate between appellant’s preexisting degenerative joint disease, which deteriorates over
time, and the accepted work-related injury. Absent a well-rationalized explanation regarding the
effect of appellant’s preexisting degenerative joint disease and the accepted work injury,
Dr. Muller’s opinion is of limited probative value.16

14

Guiseppe Aversa, supra note 10.

15

D.C., Docket No. 16-0430 (issued August 29, 2016).

16

See A.C., Docket No. 11-1339 (issued March 9, 2012).

8

The Board concludes that Dr. O’Dowd’s opinion that the total left knee arthroplasty was
not medically warranted as it was not causally related to the June 15, 2010 work injury is entitled
to special weight and represents the weight of the evidence.17
The only limitation on OWCP’s authority is approving or disapproving service under
FECA is one of reasonableness.18 In the instant case, appellant requested surgery. OWCP obtained
an impartial medical examination through Dr. O’Dowd who clearly found the surgery not
warranted. It therefore had sufficient evidence upon which it made its decision to deny surgery
and did not abuse its discretion.
On appeal counsel argues that Dr. O’Dowd failed to consider the effects of OWCP’s
approved arthroscopic surgery performed on December 16, 2011. Dr. Muller opined in an
April 27, 2016 report that as a result of that surgery, appellant had cartilage loss in her left knee
which contributed in part to the advancement of her degenerative joint disease in her left knee. As
explained above, Dr. Muller’s opinion is of limited probative value as he failed to provide a wellrationalized explanation regarding the effect of appellant’s preexisting degenerative joint disease
and the accepted work injury. Based on the evidence presented, OWCP acted properly within its
discretionary authority to deny authorization for the requested surgery. Therefore, the Board finds
that OWCP did not abuse its discretion under section 8103 in denying approval of the left knee
surgery.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization for left knee replacement
surgery.

17

Guiseppe Aversa, supra note 10.

18

See P.F., Docket No. 16-0693 (issued October 24, 2016); Daniel J. Perea, 42 ECAB 214, 221 (1990).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated July 8, 2016 is affirmed.
Issued: April 24, 2018
Washington, DC

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

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

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

10