United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rosco, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0377
Issued: April 12, 2018

Case Submitted on the Record

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

JURISDICTION
On December 9, 2016 appellant, through counsel, filed a timely appeal from a November 1,
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 the claim.
ISSUE
The issue is whether OWCP properly exercised its discretion in denying appellant’s request
to change her treating physician.

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.

FACTUAL HISTORY
On March 21, 2012 appellant, then a 60-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, she tripped and fell on an uneven sidewalk and landed on
her left wrist while in the performance of duty. OWCP accepted the claim for closed fracture,
lower end of radius left. It subsequently expanded the acceptance of the claim to include: face,
scalp, and neck contusions; right knee contusion; complete left rotator cuff rupture; sprain of left
shoulder and upper arm; superior glenoid labrum lesion; derangement of right meniscus; chronic
maxillary sinusitis; and chronic ethmoidal sinusitis. Appellant stopped work on March 22, 2012
and has not returned. OWCP paid compensation benefits on the supplemental rolls as of May 6,
2012, and on the periodic rolls as of September 23, 2012. Appellant underwent several OWCP
approved surgeries, including multiple sinus procedures.
On February 27, 2014 appellant elected FECA benefits in lieu of any benefits to which she
may be entitled to under either the Civil Service Retirement System (CSRS) or the Federal
Employees’ Retirement System (FERS).
In an April 24, 2015 letter, appellant alleged that her treating physician, Dr. Sarah A.
Whelan, a Board-certified family practitioner, was noncommittal on all issues related to her work
injury. She indicated that she had originally changed physicians from Dr. Jamil Hussain, a family
practitioner, when her insurance stopped covering the Rockford Health Systems and treatment
from Dr. Hussain. However, appellant’s insurance coverage changed and again covered the
Rockford Health Systems and Dr. Hussain. Dr. Hussain’s office indicated that he would resume
treating appellant.
In a November 2, 2015 letter, appellant formally requested that her primary physician be
changed from Dr. Whelan to Dr. Hussain. She indicated that Dr. Hussain was her prior physician,
he had better office hours than Dr. Whelan, and he was willing to support her on her workers’
compensation issues from her March 21, 2012 work injury.
By November 9, 2015 letter decision, OWCP denied appellant’s request to change her
treating physician, noting that she had not provided a compelling reason to so. It noted that both
her current treating physician and the physician she wished to transfer to were both family
practitioners. OWCP also noted that her reasons to change physicians were because of better office
hours and willingness to support her on her claim. It found no evidence that appellant was
receiving improper or inadequate medical care and explained that her attending physician was
authorized to refer her to another appropriate specialist for an evaluation.
On December 4, 2015 OWCP received appellant’s request, through her then counsel, for a
telephonic hearing before an OWCP hearing representative, which was held on August 17, 2016.
Counsel stated that appellant had seen various physicians for her multiple conditions. Counsel
asserted that Dr. Whelan was unwilling to comply with OWCP’s rules and requirements, and
wanted to submit everything through private health insurance first, which placed an unnecessary
burden on appellant by leaving her to resolve any problems including report submission and other
issues. As a result of Dr. Whelan’s lack of cooperation, counsel argued that there were delays in
treatment and potentially delayed compensation. Counsel further explained that Dr. Whelan had
been very uncooperative with providing information. Appellant indicated that she treated with

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Dr. Whelan for approximately one year for her work-related conditions. She further testified that
she has been treating with Dr. Hussain since late 2015.
By decision dated November 1, 2016, OWCP’s hearing representative affirmed OWCP’s
November 9, 2015 decision denying appellant’s request to change her treating physician. The
hearing representative found no evidence of record reflecting a problematic doctor-patient
relationship. There was no evidence that Dr. Whelan’s medical care was inappropriate, improper,
or that there have been problems with referrals for treatment or unanswered requests from OWCP.
Thus, contrary to the argument presented at the hearing, there was no evidence of issues with
Dr. Whelan’s medical management as the authorized physician. There was also no evidence that
Dr. Whelan had released appellant from her care.
LEGAL PRECEDENT
The payment of medical expenses incidental to securing medical care is authorized under
section 8103 of FECA. The pertinent part provides that an employee may initially select a
physician to provide medical services, appliances, and supplies in accordance with such
regulations and instruction as the Secretary considers necessary.3
When the physician originally selected to provide treatment for a work-related injury refers
the employee to a specialist for further medical care, the employee need not consult OWCP for
approval. In all other instances, however, the employee must submit a written request to OWCP
with his or her reasons for desiring a change of physician. OWCP will approve the request if it
determines that the reasons submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician who specializes in treating
conditions like the work related one or the need for a new physician when an employee has moved.4
Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the best
interest of the claimant and the government. An employee who wants to change attending
physicians must explain his or her reasons in writing and OWCP must review all such requests.
OWCP may approve a change when the original treating physician refers the claimant to another
physician for further treatment, the claimant wants to change from the care of a general practitioner
to that of a specialist in the appropriate field, or from the care of one specialist to another in the
appropriate field, or the claimant moves more than 50 miles from the original physician (since
OWCP has determined that a reasonable distance of travel is up to a roundtrip distance of 100
miles). It must use discretion in cases where other reasons are presented.5
The Board has recognized that OWCP, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP has
the general objective of ensuring that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time. It, therefore, has broad administrative discretion in
3

5 U.S.C. § 8103.

4

20 C.F.R. § 10.316.

5
Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter 3.300.5c
(February 2012).

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choosing the means to achieve this goal. The only limitation on OWCP’s authority is that of
reasonableness. 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 show merely that the evidence could be
construed to produce a contrary conclusion.6
ANALYSIS
The Board finds that OWCP appropriately exercised its discretion in denying appellant’s
request to change her treating physician.
In a letter dated April 24, 2015, appellant alleged that Dr. Whelan was noncommittal on all
issues related to her work injury. On November 2, 2015 she submitted a written request to change
her primary physician from Dr. Whelan to Dr. Hussain. Appellant indicated that Dr. Hussain had
previously been her family physician, he had better office hours than Dr. Whelan, and he was
willing to support her on her workers’ compensation issues arising from her March 21, 2012 work
injury. During the August 17, 2016 OWCP telephonic hearing, appellant’s then counsel noted that
appellant began treating with Dr. Whelan as a family physician after her treating doctor retired.
She asserted that Dr. Whelan was unwilling to comply with OWCP’s rules and requirements and
he explained that Dr. Whelan wanted to submit all bills through appellant’s private insurance
carrier and have them figure out if the bill should go to OWCP. Counsel alleged that this placed
unnecessary burden on appellant regarding bill processing. She also asserted that Dr. Whelan was
uncooperative in providing information, which resulted in delays in obtaining reports and
potentially delayed compensation. However, no evidence was submitted to support counsel’s
arguments that Dr. Whelan was uncooperative. OWCP denied appellant’s request as there was no
evidence to indicate that the medical care appellant received from Dr. Whelan was anything other
than proper and adequate. It concluded that appellant’s reasons for requesting a change of treating
physician were insufficient.
The Board finds that OWCP properly exercised its discretion to deny appellant’s request
to change treating physicians. The Board found that she had not provided sufficient reasons for
changing her physician and properly pointed out that both Dr. Whelan and Dr. Hussain were
family practitioners. Furthermore, there was no evidence that Dr. Whelan’s medical care was
inappropriate, improper or that there had been problems with referrals for treatment or unanswered
requests from OWCP. While appellant offered reasons for changing physicians to Dr. Hussain,
OWCP provided sufficient reason for denying her request. The Board notes that absent any
evidence of issues with Dr. Whelan’s medical management, a change in physicians is not
necessary as they are both family practitioners.
As noted above, OWCP has broad administrative discretion in choosing the means to
achieve the goal of providing treatment to a claimant. The only limitation on its authority is that
of reasonableness and 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.7 The Board finds that, under these standards, appellant
6

J.W., Docket No. 13-1852 (issued January 23, 2014); Rosa Lee Jones, 36 ECAB 679 (1985).

7

Id.

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has not established that OWCP abused its discretion in denying her request to change her treating
physician.8
On appeal appellant’s current counsel argues that the change in physician should be easily
granted as appellant had a problem with her doctor. However, as discussed above, no evidence of
any problems was presented. Appellant has not demonstrated that OWCP’s decision to deny the
change in physicians was an abuse of discretion.
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 exercised its discretion in denying appellant’s request
to change her treating physician.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2018
Washington, DC

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

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

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

8

See K.T., Docket No. 15-1202 (issued August 19, 2015).

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

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

Docket No. 14-728
Issued: July 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 10, 20141 appellant filed a timely appeal from an August 12, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed between the last merit decision dated
March 13, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of

1

See 20 C.F.R. § 501.3(f)(2) (2009). OWCP’s decision was issued on August 12, 2013. One hundred eighty
days from August 12, 2013 was February 10, 2013. Since using February 11, 2013 as the date of filing, the date the
appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the commercial
carrier’s delivery mark is considered the date of filing. The date of the commercial carrier’s delivery mark is
February 10, 2014, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

appellant’s claim, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.3
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant disagrees with the denial of his claim.
FACTUAL HISTORY
On January 16, 2013 appellant, then a 42-year-old city letter carrier, filed an occupational
disease claim alleging that on December 24, 2012 he first realized that his right knee condition
was due to his employment duties.
In a January 15, 2013 work injury tracking form, appellant was diagnosed with a possible
right knee meniscus tear and given work restrictions.4 The form noted an injury date of
December 24, 2012.
In a January 16, 2013 disability note, James B. Hollinshead, a certified physician’s
assistant stated that appellant was restricted from delivering mail by foot, but was allowed to do
curbside deliveries.
By letter dated February 7, 2013, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. Appellant was advised as to the medical and factual
evidence required to support his claim and given 30 days to provide this information.
In response to OWCP’s request appellant submitted a narrative statement and additional
medical evidence and as set forth below.
In the undated statement, appellant set forth the reasons he believed that his condition
was employment related. He described the duties he performed as a letter carrier and why he
believed that these duties contributed to his right knee condition. Appellant also stated that he
had been performing these duties for approximately 16 years.
In a January 16, 2013 report, Mr. Hollinshead performed a physical examination and
noted the history of illness. He noted that on December 24, 2012 while delivering mail appellant

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the August 12, 2013 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

The signature on the form is illegible.

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experienced sudden right knee pain. A diagnosis of possible mensicus tear was made. A
magnetic resonance imaging (MRI) scan was scheduled for further evaluation.
In a February 11, 2013 progress note, Dr. William Lighthart, a treating Board-certified
orthopedic surgeon, provided physical examination findings. He reported that a review of an
MRI scan revealed a medial meniscus posterior horn tear. Appellant related that this condition
was impacting his work and home activities as well as getting worse. In concluding,
Dr. Lighthart stated that appellant should continue with his work restrictions.
A February 11, 2013 work injury tracking form noted that appellant was seen for a
follow-up visit and needed surgery.5 The form noted an injury date of December 24, 2012.
By decision dated March 13, 2013, OWCP denied appellant’s claim on the grounds that
the medical evidence failed to establish that the diagnosed condition was due to the identified
employment factors.
In an April 27, 2013 letter appellant requested reconsideration. In support of his request
he resubmitted a February 11, 2013 work injury track form.
Appellant, in an April 27, 2013 statement, related that he failed to understand why his
claim was not accepted. He noted that an MRI scan revealed a meniscus tear and his physician
opined that it was employment related. Appellant related that he has worked over 16 years as a
letter carrier, which required walking and delivering mail in all types of weather conditions as
well as going up and down stairs.
By decision dated August 12, 2013, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.7 To be entitled to a merit review of an OWCP 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.8 When a claimant fails to meet one of the above standards, OWCP

5

The signature on the form is illegible.

6

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
7

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
8

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

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will deny the application for reconsideration without reopening the case for review on the
merits.9
ANALYSIS
By letter dated April 27, 2013, appellant requested reconsideration. However, he did not
submit pertinent new and relevant evidence or argument with his request. The February 11,
2013 work tracking form had previously been submitted and considered by OWCP in its
March 13, 2013 decision. The Board has held that evidence which is duplicative or repetitive of
evidence existing in the record is not sufficient to warrant further merit review.10 Thus, this form
report does not constitute relevant and pertinent new medical evidence and is insufficient to
require OWCP to reopen appellant’s case for further review of the merits.
In his request appellant stated that the medical evidence submitted established his claim
as his physician opined that his right meniscus tear was employment related. OWCP advised
him in its February 7, 2013 letter of the type of medical and factual evidence required to support
his claim. However, as noted by OWCP in its March 13, 2013 decision none of the medical
evidence submitted by appellant provided any explanation as to how his right knee condition was
employment related. Because appellant did not raise new arguments or present new evidence
that OWCP erroneously applied or interpreted a specific point of law; advanced any relevant
legal arguments not previously considered by OWCP; or present any relevant and pertinent new
evidence, he is not entitled to further review of the merits of his claim under any criteria of
section 10.606(b)(3).11
As appellant did not meet any of the regulatory requirements for review of the merits of
his claim, OWCP properly denied his April 27, 2013 request for reconsideration.
On appeal, appellant contends that he has complied with all the requirements to establish
his claim. However, as noted above he failed to provide any rationalized medical opinion
evidence explaining how his right knee meniscal tear was due to the employment factors he
identified. In addition, the Board is unable to consider the merits of appellant’s claim as the only
decision within its jurisdiction is the August 12, 2013 nonmerit decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

9

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
10

L.T., Docket No. 09-1798 (issued August 5, 2010); L.H., 59 ECAB 253 (2007); Jennifer A. Guillary, 57 ECAB
485 (2005).
11

A.K., Docket No. 09-2032 (issued August 3, 2010); W.C., 59 ECAB 372 (2008); Susan A. Filkins, 57 ECAB
630 (2006).

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ORDER.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 12, 2013 is affirmed.
Issued: July 3, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 06-1020
Issued: March 15, 2007

Case Submitted on the Record

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

JURISDICTION
On March 20, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated August 8, December 8 and 23, 2005 denying his
claims for recurrence of disability and entitlement to wage-loss benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss benefits for total disability for any
period subsequent to August 21, 2002.
FACTUAL HISTORY
On August 1, 2002 appellant, then a 32-year-old clerk, filed a traumatic injury claim,
alleging that he injured his lower back on July 17, 2002 while unloading a truck of cantaloupes
while in the performance of duty. His claim was accepted for lumbar strain on May 7, 2003.

Appellant submitted a July 22, 2002 report of a magnetic resonance imaging (MRI) scan
of the lumbar spine and physicians’ progress notes bearing illegible signatures dated July 30
through August 6, 2002.
In an August 19, 2002 duty status report, Dr. Luis A. Echavarkia Seza, the employing
establishment’s medical unit physician, indicated that appellant was capable of working six
hours per day, with a 15-pound lifting limitation. Appellant returned to limited duty on
August 21, 2002. After working several hours, he stopped working due to alleged lower back
pain.
Appellant submitted reports from Dr. Tomas Hernandez, a treating physician, including a
medical certificate dated August 5, 2002, reflecting a diagnosis of lumbar radiculopathy.
Dr. Hernandez stated that appellant was disabled from work from August 2 through 12, 2002. In
duty status reports dated August 14 and 22, 2002, he opined that appellant was totally disabled.
On September 11, 2002 the employing establishment controverted appellant’s claim for
disability, stating that the employing establishment’s physician had found him fit for duty.
In a September 9, 2002 attending physician’s report, Dr. Julio E. Rosada, a treating
physician, opined that appellant was totally disabled due to his work-related low back pain from
July 17 to November 30, 2002. In an accompanying duty status report, he provided diagnoses
due to injury of a herniated disc and osteoarthritis and recommended surgery. In a January 27,
2003 duty status report, Dr. Rosada again opined that appellant was unable to work.
Appellant submitted a chronology of events from July 17, 2002 through February, 2003,
reflecting the facts and the circumstances surrounding his July 17, 2002 injury and treatment
thereafter.
On September 11, 2002 appellant submitted a portion of a CA-7 claim for compensation
for the period August 31 through November 30, 2002. By letter dated May 12, 2003, the Office
informed him that his request could not be processed, in that it was incomplete and requested a
completed application.
Appellant submitted a December 22, 2003 clinic report bearing an illegible signature.
The report indicated that he was unable to work for six weeks due to a July 17, 2002 accident.
On June 8, 2004 appellant filed a CA-7 claim for compensation for the period
December 29, 2002 through June 4, 2004. In a June 4, 2004 attending physician’s report,
Dr. Rosada indicated that appellant was no longer disabled from his July 17, 2002 injury and
would be able to return to light duty on June 5, 2004.
On June 23, 2004 the Office informed appellant that the information submitted was
insufficient to establish his claim for benefits beginning August 22, 2002 and advised him to
provide evidence to support that he had sustained a recurrence of disability, including a narrative
medical report with a diagnosis and a reasoned opinion that his disabling condition was causally
related to the accepted injury.

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In an August 11, 2004 duty status report, Dr. Seza opined that appellant was able to
return to work part time with restrictions. On August 24, 2004 appellant returned to light duty.
He stopped working after four hours due to pain in his lower back. Appellant has not returned to
work.
The employing establishment scheduled, and appellant failed to attend, work capacity
tests on August 25 and September 14, 2004.
The employing establishment provided
documentation that he had attended college as a full-time student from November 2002 through
February 2003.
Appellant submitted an October 21, 2004 report from Dr. Hernandez who opined that he
was unable to perform any job due to the accepted July 17, 2002 injury. Dr. Hernandez related
the history of appellant’s injury and provided diagnoses of large centrally herniated disc
secondary to a July 17, 2002 work-related injury and bilateral carpal tunnel syndrome, probably
job related. He found mild kyphosis and moderately severe spasms in the neck and both
shoulders. In the cervical region, lateral flexion was 45 degrees to the left and 45 degrees to the
right, flexion was 45 degrees, extension was 30 degrees, and rotation was 80 degrees to the right
and 80 degrees to the left. In the lumbosacral region, extension was 20 degrees and lateral
flexion was 20 degrees to the right and 20 degrees to the left. In the thoracolumbar region,
anterior flexion was 45 degrees. Dr. Hernandez stated that, as there was no previous history of
back injury or disc disease, “it must be concluded that the present problem is related to the
incident that occurred on July 17, 2002.” He opined that, because his condition was still
“active,” appellant was unable to perform the duties that his job entails, due to the constant pain
aggravated by even mild exertion.
By decision dated January 13, 2005, the Office denied appellant’s claim for recurrence of
disability beginning August 22, 2002. Noting that he failed to attend work capacity tests and was
enrolled as a full-time student, the Office stated that an argument could be made that he had
abandoned suitable employment. The Office found that appellant had provided no probative
medical evidence establishing a causal relationship between his claimed recurrence and the
accepted work injury.
On May 1, 2005 appellant requested reconsideration of the Office’s January 13, 2005
decision. He submitted a letter dated April 20, 2005, contending that his claim was not a claim
for recurrence of disability as of August 22, 2002, but rather was a claim for compensation for
the period December 29, 2002 to June 4, 2004. He also stated that he became a full-time
mechanical engineering student in August 2004 and intended to continue working at the
employing establishment. Submitting duplicates of Dr. Hernandez’ October 21, 2004 report and
August 14, 2002 duty status report, as well as a duplicate of Dr. Rosada’s September 9, 2002
duty status report, appellant contended that his disability was well documented by his physicians.
By decision dated August 8, 2005, the Office denied modification of its January 13, 2005
decision on the grounds that appellant did not provide contemporaneous medical evidence to
establish that a recurrence of disability occurred as of August 22, 2002.

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On April 27, 2005 appellant filed a claim for compensation (Form CA-7) for the period
July 17, 2002 through April 10, 2005.
Appellant submitted an attending physician’s report from Dr. Hernandez dated October 4,
2005, which provided a diagnosis of “lumbar HMP with radiculopathy.” Indicating that he was
totally disabled from July 17, 2002 through October 4, 2005, Dr. Hernandez stated that he was
able to return to limited duty at that time.
On October 14, 2005 appellant filed a claim for recurrence of disability for the period
August 21, 2002 through August 24, 2004. He alleged that, after reporting to work at 10:00 a.m.
on August 21, 2002, he “had to stop working after 4.19 hours due to intense back pain.”
In a memorandum dated October 19, 2005, Ruben Maldonado, customer service
supervisor, stated that appellant reported to work on August 24, 2004 and presented a Form
CA-17 to his manager outlining his work limitations. Appellant was assigned duties in
accordance with his restrictions and completed his shift without incident. In a memorandum
dated October 19, 2005, customer service supervisor Anastacio Arce stated that, on August 21,
2002, appellant reported to work and was assigned duties in accordance with restrictions outlined
in an August 19, 2002 CA-17 form. He stated that under no circumstances was appellant
instructed to perform any task exceeding his limitations.
By letter dated October 27, 2005, the Office informed appellant that the information
submitted was insufficient to establish his claim for recurrence of disability as of
August 21, 2002. The Office advised him to submit within 30 days evidence supporting that
either his light-duty assignment had changed such that it no longer met the restrictions of his
doctor or that his condition had worsened to the degree that he could not perform the duties of
the job. Appellant was asked to provide a physician’s report explaining how he was no longer
able to perform the duties of his job due to the accepted employment accident.
On October 14, 2005 appellant submitted a notice of recurrence of disability beginning
August 24, 2004. He claimed that he had returned to limited duty on that date, but was
instructed by his supervisor to perform regular duties. After 5.45 hours, appellant stopped
working due to alleged severe back pain.
By letter dated November 21, 2005, the Office informed appellant that the information
submitted was insufficient to establish his claim for recurrence of disability as of
August 24, 2004. The Office advised him to submit within 30 days evidence supporting that
either his light-duty assignment had changed such that it no longer met the restrictions of his
doctor, or that his condition had worsened to the degree that he could not perform the duties of
the job. Appellant was asked to provide a doctor’s report explaining how he was no longer able
to perform the duties of his job due to the accepted employment accident.
By decision dated December 8, 2005, the Office denied appellant’s claim for recurrence
of disability as of August 21, 2002. Noting that his alleged herniated disc was not an accepted
condition, the Office found that the evidence did not support that his claimed recurrence was
causally related to the July 17, 2002 work injury.

4

Appellant submitted a November 29, 2005 report from Dr. Hernandez. The history
provided reflected that appellant’s condition had worsened when he was “forced to work” on
August 21, 2002, even though Dr. Hernandez had found him to be totally disabled.
Dr. Hernandez stated that appellant had reinjured his back on August 24, 2004 while lifting a
heavy load at work. He provided diagnoses of a large L5-S1 centrally herniated disc resulting
from the July 17, 2002 injury and bilateral carpal tunnel syndrome. Dr. Hernandez indicated that
appellant continued to experience pain when he tried to bend at the waist or carry anything
beyond his 15-pound weight limitation.
On December 8, 2005 appellant filed claims for compensation for the periods April 10
through August 11, 2005 and from August 11 through November 22, 2005.1 In a November 8,
2005 attending physician’s report, Dr. Hernandez again diagnosed lumbar herniated nucleus
pulposus (HNP) with radiculopathy and stated that appellant was totally disabled from July 17,
2002 through November 4, 2004.
By decision dated December 23, 2005, the Office denied appellant’s claim for recurrence
of disability as of August 24, 2004, on the grounds that he had submitted no factual evidence
supporting his claim and no medical evidence connecting his current diagnosed conditions to his
accepted lumbar strain.
LEGAL PRECEDENT
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that he is disabled for work as a
result of his employment injury.2 Whether a particular injury causes an employee to be disabled
for employment, and the duration of that disability, are medical issues, which must be proved by
a preponderance of the reliable, probative and substantial medical evidence.3 The Board will not
require the Office to pay compensation in the absence of medical evidence directly addressing
the particular period of disability for which compensation is sought. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.4
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. Appellant’s burden of proving he was disabled on particular
dates requires that he furnish medical evidence from a physician who, on the basis of a complete
and accurate factual and medical history, concludes that the disabling condition is causally
1

The Board notes that the record does not contain a final decision regarding appellant’s claims for compensation
for these periods. Therefore, the Board does not have jurisdiction over the merits of the claims. See 20 C.F.R.
§ 501.2(c) (the Board has jurisdiction to consider and decide appeals from final decisions; there shall be no appeal
with respect to any interlocutory matter disposed of during the pendency of the case).
2

Fereidoon Kharabi, 52 ECAB 291 (2001); see also David H. Goss, 32 ECAB 24 (1980).

3

Fereidoon Kharabi, supra note 2; see also Edward H. Horton, 41 ECAB 301 (1989).

4

Fereidoon Kharabi, supra note 2.

5

related to the employment injury and supports that conclusion with medical reasoning.5 Where
no such rationale is present, the medical evidence is of diminished probative value.6
ANALYSIS
Appellant filed claims for compensation alleging that he was totally disabled from
working subsequent to August 21, 2002. However, he did not submit any probative medical
evidence demonstrating total disability for this period of time due to his accepted condition.7
Medical evidence of record includes reports from appellant’s treating physician,
Dr. Hernandez. On August 5, 2002 Dr. Hernandez diagnosed lumbar radiculopathy and stated
that appellant was disabled from August 2 through 12, 2002. In duty status reports dated
August 14 and 22, 2002, he opined that appellant was totally disabled. On October 4, 2005
Dr. Hernandez diagnosed lumbar HNP with radiculopathy and opined that appellant was totally
disabled from July 17, 2002 through October 4, 2005. He stated that he was able to return to
limited duty at that time. The Board has held that a medical opinion not fortified by medical
rationale is of diminished probative value.8 As Dr. Hernandez failed to provide any explanation
as to how appellant’s alleged disability was related to his accepted lumbar strain, these reports
lack probative value. To the extent that Dr. Hernandez attributed appellant’s disability to a
herniated disc, the Office has not accepted such condition as causally related to the July 17, 2002
incident. Furthermore, his opinion that appellant was able to return to work on October 4, 2005
refutes the claim that appellant was disabled at that time.
On October 21, 2004 Dr. Hernandez opined that appellant was “unable to perform any
job” due to the accepted July 17, 2002 injury. He diagnosed a large centrally herniated disc
secondary to a July 17, 2002 work-related injury. Dr. Hernandez stated that, as there was no
previous history of back injury or disc disease, “it must be concluded that the present problem is
related to the incident that occurred on July 17, 2002.” He offered no explanation as to how this
newly diagnosed condition was related to the accepted lumbar strain, his report lacks probative
value. Moreover, Dr. Hernandez’s conclusion that the “present problem” was related to the
July 17, 2002 incident because there was no previous history of back injury or disc disease, is not
well rationalized. 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 a causal relationship.9 Dr. Hernandez is
5

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

6

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

7

The record reflects that appellant received continuation of pay from July 17 to September 1, 2002. As
compensation may not be paid while an injured worker is in a continuation of pay status, appellant would not be
entitled to compensation benefits for wage loss until September 2, 2002. See 20 C.F.R. § 10.401(a).
8

Mary A. Ceglia, supra note 6. See Brenda L. DuBuque, 55 ECAB 212 (2004); see also Willa M. Frazier, 55
ECAB 379 (2004); David L. Scott, 55 ECAB 330 (2004).
9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

required to explain how appellant’s condition is physiologically related to the July 17, 2002
employment injury, and to provide medical evidence of bridging symptoms between appellant’s
current condition and the accepted injury which support the conclusion of a causal relationship.10
He did not provide the required rationale in explaining his opinion on causal relationship. In a
November 8, 2005 attending physician’s report, Dr. Hernandez again diagnosed lumbar HNP
with radiculopathy, and stated that appellant was totally disabled from July 17, 2002 through
November 4, 2004. This report also lacks probative value, as it provides no opinion as to the
cause of appellant’s alleged disability.
On November 29, 2005 Dr. Hernandez provided a diagnosis of a large L5-S1 centrally
herniated disc resulting from the July 17, 2002 injury. He stated that appellant’s condition had
worsened when he was “forced to work” on August 21, 2002, even though he had found him to
be totally disabled. Dr. Hernandez also indicated that appellant had reinjured his back on
August 24, 2004 while lifting a heavy load at work. As this report fails to explain how the
diagnosed herniated disc was causally related to appellant’s accepted lumbar strain, it, too, is of
diminished probative value. The Board also notes that Dr. Hernandez did not explain how or
why appellant’s condition worsened on August 21, 2002 nor did he describe the mechanism of
appellant’s alleged reinjury on August 24, 2004, or its causal relationship to the accepted July 17,
2002 injury.
Dr. Rosada’s reports are insufficient to establish that appellant was disabled from work
during the period in question. In his September 9, 2002 attending physician’s report, he opined
that appellant was totally disabled due to his work-related low back pain from July 17, 2002
through November 30, 2002. This report did not provide a specific diagnosis or explain how
appellant’s condition resulted in total disability. Therefore, it is of diminished probative value.
In an accompanying duty status report, Dr. Rosada provided diagnoses due to injury of a
herniated disc and osteoarthritis and recommended surgery. However, appellant’s claim was not
accepted for a herniated disc or osteoarthritis. As Dr. Rosada failed to provide an explanation
regarding the causal relationship between his diagnoses and the accepted condition, his report
lacks probative value. In a January 27, 2003 duty status report, Dr. Rosada again opined that
appellant was unable to work. For reasons stated above, this report is of no probative value. In a
June 4, 2004 attending physician’s report, Dr. Rosada opined that appellant was no longer
disabled from his July 17, 2002 injury. This report does not support appellant’s claim that he
was disabled at that time.
The remaining medical evidence of record does not support appellant’s claim for
disability. Appellant submitted physicians’ progress notes bearing illegible signatures dated
July 30 through August 6, 2002 and a December 23, 2003 clinic report, bearing an illegible
signature. These reports, lacking proper identification, cannot be considered as probative
evidence.11 Other medical evidence of record, including reports of MRI scans and x-rays, which
do not contain an opinion on causal relationship, are of no probative value. Finally, the reports
from Dr. Seza, the employing establishment physician, indicate that appellant was capable of
10

Mary A. Ceglia , supra note 6.

11

Merton J. Sills, 39 ECAB 572 (1988).

7

working with restrictions during the period in question and, therefore, do not support appellant’s
claim for disability.
Appellant had the burden of proving by the preponderance of the reliable, probative and
substantial evidence that he was disabled for work as a result of his employment injury. For the
reasons stated above, the Board finds that he failed to sustain his burden of proof in establishing
that he was totally disabled due to his accepted employment condition on or after
August 21, 2002.12
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss benefits for
any period subsequent to August 21, 2002.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 23 and 8 and August 8, 2005 are affirmed.
Issued: March 15, 2007
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

12

See Fereidoon Kharabi, supra note 2. (The Board will not require the Office to pay compensation for
disability in the absence of any medical evidence directly addressing the particular period of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their disability and entitlement
to compensation.)

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
San Diego, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1242
Issued: December 20, 2017

Case Submitted on the Record

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

JURISDICTION
On May 16, 2017 appellant, through counsel, filed a timely appeal from a March 15,
2017 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 the 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 appellant has established employment-related permanent
impairment of her left upper extremity warranting a schedule award.
FACTUAL HISTORY
On August 9, 2012 appellant, then a 53-year-old employment tax specialist/revenue
agent, filed an occupational disease claim (Form CA-2) alleging that she sustained pain in her
left shoulder due to carrying heavy paperwork to and from the office. She first became aware of
her condition and its relationship to her federal employment on July 16, 2012. Appellant stopped
work on July 16, 2012.
OWCP accepted that appellant sustained a sprain of the left shoulder and upper arm and
disorder of the bursae and tendons in the left shoulder. It paid wage-loss compensation for
intermittent wage-loss from work from October 22 to November 8, 2012.3 Appellant accepted a
limited-duty job offer on November 14, 2012.
In a report dated January 9, 2014, Dr. Dayang Kim Mariena Jaya, a Board-certified
internist, diagnosed left shoulder bursitis, impingement syndrome, and adhesive capsulitis. She
discussed appellant’s history of experiencing shoulder pain on July 12, 2012 carrying case files.
Dr. Jaya noted that a magnetic resonance imaging (MRI) scan showed biceps tendinitis and
subacromial bursitis. She found that appellant had reached maximum medical improvement and
had no restrictions. Dr. Jaya further opined that appellant had no ratable impairment based on
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).4
Appellant, on May 9, 2016, filed a claim for a schedule award (Form CA-7).5 By letter
dated May 11, 2016, OWCP requested that she submit an impairment evaluation from her
attending physician addressing the extent of any employment-related impairment in accordance
with the sixth edition of the A.M.A., Guides.6 No further information was provided.
By decision dated June 13, 2016, OWCP denied appellant’s schedule award claim. It
found that she had not submitted any medical evidence supporting a permanent impairment due
to her accepted work injury.
On June 17, 2016 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
3

OWCP also paid appellant for time lost from work for medical appointments from January 23 to
September 4, 2013.
4

5th ed. 2001.

5

By decision dated October 3, 2014, OWCP found that appellant had not established a recurrence of a medical
condition.
6

6th ed. 2009.

2

In an impairment evaluation dated June 22, 2016, Dr. Mesfin Seyoum, who specializes in
family medicine, obtained a history of appellant experiencing the sudden onset of left shoulder
pain on July 16, 2012 while carrying a “heavy briefcase on her left shoulder.” He reviewed the
objective studies of record and discussed her current complaints of continued left shoulder pain
aggravated by cold, overhead reaching, and lifting. Dr. Seyoum measured range of motion for
the left shoulder and performed a neurological examination. He diagnosed a left shoulder strain
and left rotator cuff syndrome “caused and aggravated by work activities,” noting that she had a
specific injury to her left shoulder on July 16, 2012. Using Table 15-5 on page 402 of the
A.M.A., Guides, 6th ed., Dr. Seyoum identified the diagnosis as a class 1 rotator cuff tear with
residual loss. After applying grade modifiers, he determined that appellant had five percent
upper extremity impairment.
During the telephone hearing, held on February 10, 2017, counsel requested that
OWCP’s hearing representative remand the case for OWCP’s medical adviser to consider
Dr. Seyoum’s impairment evaluation.
In a decision dated March 15, 2017, OWCP’s hearing representative affirmed the
June 13, 2016 decision. She found that Dr. Seyoum did not provide an accurate history of injury
and rated appellant for a rotator cuff tear, a condition not accepted by OWCP as employment
related.
On appeal counsel contends that she submitted evidence supporting permanent
impairment.
LEGAL PRECEDENT
FECA7 provides compensation for both disability and physical impairment. “Disability”
means the incapacity of an employee, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.8 In such cases, FECA compensates an employee
for loss of wage-earning capacity. In cases of physical impairment FECA, under section
8107(a), compensates an employee, pursuant to a compensation schedule, for the permanent loss
of use of certain specified members of the body, regardless of the employee’s ability to earn
wages.9
The claimant has the burden of proof to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of her employment injury.10 The
claimant must submit a rationalized medical opinion that supports a causal connection between
his or her current condition and the employment injury.11 The medical opinion must be based on
7

Supra note 2.

8

Lyle E. Dayberry, 49 ECAB 369 (1998).

9

Renee M. Straubinger, 51 ECAB 667 (2000).

10

See Veronica Williams, 56 ECAB 367 (2005); Annette M. Dent, 44 ECAB 403 (1993).

11

Manuel Gill, 52 ECAB 282 (2001).

3

a complete factual and medical background with an accurate history of the claimant’s
employment injury and must explain from a medical perspective how the current condition is
causally related to the injury.12
ANALYSIS
OWCP accepted appellant’s August 9, 2012 occupational disease claim for a left
shoulder and upper arm sprain and a disorder of the bursae and tendons of the left shoulder.
Appellant returned to modified employment in November 2012.
On January 9, 2014 Dr. Jaya released appellant to resume her usual employment without
restrictions. She diagnosed bursitis, impingement syndrome, and adhesive capsulitis of the left
shoulder and found that she had no ratable impairment using the fifth edition of the A.M.A.,
Guides.
Appellant filed a schedule award claim on May 9, 2016, which OWCP denied on
June 13, 2016 as she had not submitted an impairment evaluation in support of her claim. She
requested a telephone hearing and submitted a June 22, 2016 impairment evaluation from
Dr. Seyoum. Dr. Seyoum related that appellant had a history of left shoulder pain on July 16,
2012 carrying a heavy briefcase at work. He measured range of motion and performed a sensory
examination. Dr. Seyoum diagnosed a left shoulder strain and left shoulder rotator cuff tendinitis
due to employment activities, indicating that appellant experienced a left shoulder injury on
July 16, 2012. Using Table 15-5 on page 402 of the sixth edition of the A.M.A., Guides, he
identified the diagnosis as a class 1 rotator cuff tear and found, after applying grade modifiers,
that she had five percent permanent impairment of the left upper extremity. Although
Dr. Seyoum based his impairment assessment on a left shoulder rotator cuff tear, OWCP has not
accepted the rotator cuff tear as employment related. It is appellant’s burden to establish that the
condition for which a schedule award is sought is causally related to her employment.13
Schedule awards are not issued when the impairment is caused solely by a nonemploymentrelated condition.14 Appellant has not established that the employment injury contributed to a
permanent impairment of a scheduled member or function of the body.15 Consequently, she has
failed to meet her burden of proof.
On appeal counsel asserts that she submitted sufficient evidence to demonstrate a
permanent impairment. As noted, however, appellant has the burden of proof to establish a

12

Yvonne R. McGinnis, 50 ECAB 272 (1999).

13

See M.B., Docket No. 17-0376 (issued July 24, 2017); Veronica Williams, 56 ECAB 367 (2005).

14

See M.B., id.

15

See D.E., Docket No. 16-0463 (issued May 17, 2016).

4

permanent impairment as the result of the accepted work injury.16 She has not submitted such
evidence and thus failed to meet her burden of proof.17
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established an employment-related permanent
impairment of her left upper extremity, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.18
Issued: December 20, 2017
Washington, DC

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

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

16

Id.

17

See M.B., supra note 13.

18

Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL DISASTER MEDICAL
SERVICES, Bethesda, MD, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-1994
Issued: June 26, 2015

Case Submitted on the Record

ORDER GRANTING PETITION FOR RECONSIDERATION
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On January 21, 2015 the Board issued a decision and order in the above-entitled case. By
that decision, the Board affirmed the Office of Workers’ Compensation Programs’ (OWCP)
August 21, 2014 decision, finding that it properly declined to reopen appellant’s claim for review
of the merits.
Counsel filed a petition for reconsideration on February 16, 2015 and requested that the
Board correct a typographical error in the first paragraph of the decision. He noted that the
Board had listed the date of the last merit Board decision as April 24, 2013 rather than
April 24, 2014.
The Clerk of the Board served the Director of OWCP with a copy of appellant’s petition
for reconsideration on March 20, 2015. On March 20, 2015 the Director filed an answer stating
that he had no comment and requesting that the Board rule justly on the petition.
The Clerk of the Board served counsel with a copy of the Director’s answer to his
petition for reconsideration on March 20, 2015. Counsel did not respond within the time
allotted.

The Board has duly considered the matter and notes that the standard for granting a
petition for reconsideration is that the Board’s decision contains an error of fact or law
warranting further consideration.1 In the petition for reconsideration, counsel has submitted
evidence of an error of fact in the January 21, 2015 decision in that the Board misstated the date
of its last merit decision as April 24, 2013 in the jurisdictional paragraph. The Board found and
referred to April 24, 2014, as the date of the last merit decision in the remainder of the decision.
Consequently, appellant’s petition for reconsideration should be granted and the decision
and order docketed as No. 14-1994 should be reissued with a corrected date of April 24, 2014 as
the date of the last merit Board decision in the jurisdictional paragraph.
IT IS HEREBY ORDERED THAT appellant’s petition for reconsideration is granted.
Issued: June 26, 2015
Washington, DC

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

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

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

1

Virginia Faye Gabbert (Byron Lowell Gabbert), 21 ECAB 149 (1969).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Wellington, FL, Employer
__________________________________________

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Appearances:
Kim Gabriel, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0553
Issued: June 21, 2016

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 February 3, 2016 appellant, through counsel, timely appealed an October 22, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of appellant’s recurrence claim.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $10,636.63 for the period June 1, 2011 through July 25, 2015; (2); whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly
deducted $75.00 every 28 days from appellant’s continuing compensation payments.
1
2

5 U.S.C. § 8101 et seq.

The record on appeal contains evidence received after OWCP issued its October 22, 2015 decision. The Board
is precluded from considering evidence that was not in the case record at the time OWCP issued its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 66-year-old former supervisory field representative, was involved in a workrelated motor vehicle accident on December 2, 1994. She has not returned to work since her
accident.3 Appellant’s accepted conditions include concussion, left wrist contusion, left thumb
sprain, left elbow sprain, chest contusion, multiple lower limb contusions, multiple crushing
injuries, bilateral knee blunt trauma, bilateral knee strain, right knee meniscus tear, left ankle
strain, cervical, thoracic and lumbar strains, jaw subluxation, right shoulder tendinitis
(consequential injury), and left ankle closed fracture of the lateral malleolus. She has been
receiving FECA wage-loss compensation benefits since January 21, 1995.
Appellant was born in May 1949. When she turned 62 years of age in 2011, she was
eligible to receive age-related social security retirement benefits. The record indicates that she
was covered under the Federal Employees Retirement System (FERS) and was subject to Federal
Insurance Contributions Act (FICA) withholding.4
By letter dated April 1, 2011, OWCP advised appellant of the possibility of a prohibited
dual benefit as a result of receiving FECA wage-loss benefits and FERS-based social security
retirement benefits. It explained that her FECA benefits would have to be reduced by the
amount of any social security retirement benefits attributable to her federal service. OWCP
further advised appellant to immediately contact her local district office if and when she was
approved for social security retirement benefits. Approximately, two years later, appellant
advised OWCP that she was receiving social security benefits. However, she believed that her
benefits were based on her private sector employment.5
On June 6, 2014 OWCP contacted the Social Security Administration (SSA) inquiring
about appellant’s age-related SSA retirement benefits beginning on or after May 28, 2011. On
July 31, 2014 an SSA representative, advised OWCP that appellant was eligible for SSA agerelated retirement benefits beginning June 1, 2011.6 The representative provided a breakdown of
appellant’s monthly SSA benefits that included contributions from her federal service (w/
FERS), as well as a monthly benefit that excluded her FERS-based contributions (w/o FERS).
Beginning June 2011, appellant’s total monthly SSA benefit was $841.10, and the corresponding
monthly amount excluding her FERS-based contributions was $720.20. The representative also
provided additional calculations for subsequent periods beginning December 2011
($871.30/$746.00), December 2012 ($886.10/$758.70), and December 2013 ($899.40/$770.00).
Based on the information provided by SSA, appellant’s FERS-based contributions accounted for
3

Appellant was separated from federal service effective October 1, 2001.

4

A January 20, 1996 notification of personnel action (Standard Form 50-B) identified appellant’s retirement plan
as “FERS & FICA,” with a December 8, 1983 service computation date.
5

Appellant submitted a Form CA-1032 dated May 10, 2013, which acknowledged receipt of Social Security
benefits. However, her previous year’s Form CA-1032 (May 17, 2012) denied receipt of any Social Security
benefits.
6

The SSA representative noted that appellant was entitled to disability prior to June 2011, and reentitled to
disability as of May 2014.

2

approximately $126.00 of her total monthly SSA benefits. At the time, OWCP did not take any
action to offset her wage-loss compensation based on this information.
On May 28, 2015 OWCP submitted a “Re[-]computation” request to SSA regarding the
possibility of a dual benefit.
On July 20, 2015 another SSA representative advised OWCP that appellant was eligible
to receive age-related retirement benefits from June 2011 through April 2014.
This
representative indicated that she was entitled to SSA disability from October 2005 through
May 2011 and from May 2014 through April 2015, and during those periods, a FERS offset did
not apply. SSA further noted that appellant’s eligibility for SSA age-related retirement benefits
resumed in May 2015 and provided calculations showing her total SSA monthly retirement
benefits and corresponding monthly benefits excluding her FERS-based contributions. Although
the latest full SSA monthly figures for June 2011 through December 2013 were consistent with
information previously provided by SSA, the 2011-13 monthly figures excluding appellant’s
FERS-based contributions differed. According to this representative, her monthly retirement
benefits with/without FERS were as follows: June 2011 -- $841.10/$584.40; December 2011 -$871.30/$605.30; December 2012 -- $886.10/$615.60; December 2013 -- $899.40/$624.80; and
May 2015 -- $1,385.60/$942.40. Based on this latest data, the difference between appellant’s
monthly SSA retirement benefits with/without FERS-based contributions ranged from $256.70
in June 2011 to $443.20 in May 2015.7
OWCP subsequently advised appellant that, effective July 26, 2015, her 28-day wageloss benefits were offset based on the corresponding amount of SSA age-related retirement
benefits attributable to her federal service. The new net compensation payment was to be
$1,358.51.
On August 18, 2015 OWCP issued a preliminary overpayment determination in the
amount of $10,636.63 for the period June 1, 2011 through July 25, 2015. It explained that the
overpayment was a result of appellant having received FECA wage-loss compensation and
FERS-based social security retirement benefits for the same period, which was prohibited.
Additionally, OWCP advised that appellant was not at fault in creating the overpayment.
On August 28, 2015 appellant requested a decision based on the written record. She
believed that SSA may have included some of her non-FERS, private income that she earned
between 1991-94 when she worked for both the Federal Government and a nonfederal school
system. Appellant also submitted an overpayment recovery questionnaire (OWCP-20) and
supporting documentation regarding her monthly income and expenses. She reported total
monthly income of $2,638.51, which included both SSA and FECA benefits. Appellant’s
reported monthly expenses also totaled $2,638.51.8 Lastly, her reported assets, including cash,
checking, and savings accounts totaled $261.00.

7

OWCP did not request, nor has SSA provided, a complete payment history of the SSA age-related benefits
appellant reportedly received beginning June 2011.
8

The monthly income and expenses matched exactly because appellant only reported $0.32 per month for food.

3

By decision dated October 22, 2015, OWCP finalized its preliminary determination
regarding the fact and amount of the overpayment, as well as its finding that appellant was not at
fault. Regarding her request for waiver of recovery, it determined that her monthly income
exceeded her monthly expenses by $91.91, and the surplus was sufficient to warrant recovery of
the overpayment.9 OWCP also imposed a 28-day repayment of $75.00 to be deducted for
appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement or survivor annuity.10 To avoid payment of a dual benefit, FECA wage-loss
compensation benefits shall be reduced by the amount of Social Security Act benefits
attributable to the employee’s federal (FERS-based) service.11 However, an offset is not
required where the employee-beneficiary is covered under the Civil Service Retirement System
and her SSA age-related benefits are attributable to private sector employment.12
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision with respect to the amount of
the overpayment. The current record establishes that appellant was covered under FERS. The
record also establishes that she received age-related social security retirement benefits. As
appellant received a dual benefit, fact of overpayment is established.13
However, the portion of her monthly SSA benefits attributable to her FERS-based
contributions is unclear. The current record includes two different sets of figures from SSA
regarding appellant’s FERS offset. The reason for this discrepancy is unclear from the record. It
is also unclear why OWCP relied on the July 20, 2015 figures, which resulted in a significantly
larger overpayment than would have been the case if it had utilized the July 31, 2014 figures.
Because of the unexplained discrepancy, the Board is not in a position to determine whether
OWCP’s finding regarding the amount of overpayment ($10,636.63) is accurate. Accordingly,
the case shall be remanded to OWCP for further development regarding the appropriate FERS
offset. On remand, OWCP should seek clarification from SSA regarding the conflicting FERS
offset information provided. It should also obtain a complete payment history from SSA
regarding the age-related benefits appellant reportedly received beginning in June 2011.14

9

OWCP adjusted appellant’s income upward by converting her 28-day FECA benefits ($1,358.51) to a monthly
figure ($1,471.72).
10

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

11

Id. at § 8116(d)(2); Id. at § 10.421(d).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter
2.812.9c (May 2012); and Dual Benefits, Chapter 2.1000.4e(2) (January 1997).
13

Supra note 10.

14

In light of the disposition of issue 1, the Board finds issues 2 and 3 are premature.

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After OWCP has developed the case record consistent with the Board’s opinion regarding
appropriate FERS offset, and any necessary further development, a de novo decision shall be
issued.
CONCLUSION
The Board finds fact of overpayment, but that the case is not in posture for decision,
regarding the amount of overpayment and other remaining issues.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside. The case is remanded for
further action consistent with this decision.
Issued: June 21, 2016
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, CASUAL FIREFIGHTERS,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 15-0931
Issued: December 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 23, 2015 appellant filed a timely appeal from a December 1, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from August 1, 2013, the date of the most recent OWCP merit decision, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument. By order dated October 16, 2015 the Board, after exercising
its discretion, denied his request, finding that his arguments could be adequately addressed in a decision based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0931 (issued
October 16, 2015).

FACTUAL HISTORY
On June 19, 2013 appellant, then a 51-year-old forestry technician, filed a Form CA-1,
traumatic injury claim, alleging that on June 16, 2013 he sustained cardiac arrest due to physical
exertion and possible high altitude while hiking to a fire at Rocky Mountain National Park. He
stopped work on June 16, 2013.
By letter dated June 20, 2013, OWCP advised appellant of the type of factual and
medical evidence needed to establish his claim and requested that he submit such evidence,
particularly requesting that he submit a physician’s reasoned opinion addressing the relationship
of his claimed condition and specific employment factors.
Appellant submitted witness statements from Tim Murphy and Jose Gonzales, fellow
firefighters, who noted on June 16, 2013 their crew was hiking to a fire at Rocky Mountain
National Park at an elevation of 10,000 feet. During this hike appellant had several seizures and
was slouched against a tree. Mr. Murphy and Mr. Gonzales performed coronary pulmonary
resuscitation until the medics arrived. Appellant was subsequently transported to a hospital.
Appellant submitted hospitalization records where he was treated by Dr. Peter Dixon
Riley, a Board-certified internist, from June 16 to July 3, 2013, for cardiac arrest. Dr. Dixon
noted that appellant was a firefighter in Estes Park and experienced mild shortness of breath
which he attributed to the altitude. Appellant reported hiking to a worksite on June 16, 2013 and
then he slumped over and had minor convulsions. Dr. Riley noted that appellant was found to
have no pulse and was shocked, intubated, and then transferred to the hospital. He diagnosed
cardiac arrest at Rocky Mountain Park, possible seizure activity, acute respiratory failure,
encephalopathy, anoxic, elevated liver function tests with a normal echocardiogram. On
June 27, 2013 appellant underwent an urgent coronary artery bypass performed by Dr. Allan
Brants, a Board-certified thoracic surgeon, who diagnosed severe coronary artery disease, left
ventricle ejection fraction measured at 40 percent, no significant valvular heart disease pursuant
to an echocardiogram, presentation with myocardial infarction and cardiac arrest suffered out of
hospital and hypertension. A discharge summary prepared by Dr. Barry Ray Smith, a Boardcertified cardiologist, dated July 3, 2013, diagnosed cardiac arrest and three vessel coronary
artery disease. Dr. Smith noted that appellant underwent a multi-vessel bypass surgery after
cardiac catheterization and implantation of an implantable cardioverter-defibrillator (ICD).
In a decision dated August 1, 2013, OWCP denied appellant’s claim, finding that he had
failed to submit sufficient medical evidence establishing that the medical condition was causally
related to the work event.
In an appeal request form dated July 25, 2014, but received by OWCP on September 5,
2014, appellant requested reconsideration.3
Appellant submitted duplicate copies of his hospital admission reports from June 16 to
July 3, 2013. He came under the treatment of Dr. Thampi K. John, a Board-certified
cardiologist, on July 31, 2013, for coronary artery disease, cardiac arrest, and history of ICD
3

Appellant initially faxed the appeal request form to his employing establishment on July 25, 2014, but did not
send it to OWCP at that time.

2

implantation. Dr. John noted that appellant had recently been treated for cardiac arrest.
Appellant reported being a firefighter who worked in the Rocky Mountain National Park where
he had a cardiac arrest. He subsequently underwent a cardiac workup which included cardiac
catheterization and coronary artery bypass surgery. Dr. John diagnosed coronary artery disease
status post bypass surgery, ventricular tachyarrhythmia and hypertension. In a July 9, 2014
report, he diagnosed coronary artery disease status post bypass surgery and cardiac arrest.
Dr. John noted that appellant had cardiac arrest when he was working as a firefighter. He noted
that appellant’s cardiac arrest and myocardial infarction was most probably precipitated by
strenuous activity in which he was engaged as a firefighter.
By decision dated December 1, 2014, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”4
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.5 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and
explicit and must be manifest on its face that OWCP committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.7 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

7

Annie L. Billingsley, 50 ECAB 210 (1998).

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establish clear evidence of error.8 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.9 This entails a limited review by OWCP of the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of OWCP.10 The Board makes an independent determination as to whether a claimant has
submitted clear evidence of error on the part of OWCP.11
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted, an application for reconsideration must be received by OWCP
within one year of the date of OWCP’s decision for which review is sought.12 As appellant’s
request for reconsideration was not received by OWCP until September 5, 2014, more than one
year after issuance of the August 1, 2013 merit decision, it was untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in its August 1, 2013 decision denying his claim
for compensation.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. In his September 15, 2014 reconsideration request, appellant disagreed with OWCP’s
decision denying his claim for compensation.
In support of his reconsideration request, appellant resubmitted copies of reports from his
hospital admission from June 16 to July 2, 2013. OWCP had previously considered this
evidence and in submitting these documents appellant did not explain how this evidence was
positive, precise, and explicit in manifesting on its face that OWCP committed an error in
denying his claim for compensation. It is not apparent how resubmission of this evidence is
sufficient to raise a substantial question as to the correctness of OWCP’s decision. Thus, these
reports are insufficient to establish clear evidence of error.
Appellant submitted a July 31, 2013 report from Dr. John who treated him for cardiac
arrest. He reported being a firefighter who worked in Rocky Mountain National Park when he
suffered cardiac arrest. Dr. John diagnosed coronary artery disease status post bypass surgery,
ventricular tachyarrhythmia and hypertension. On July 9, 2014 he noted that appellant had
cardiac arrest when he was working as a firefighter. Dr. John noted that appellant’s cardiac
arrest and myocardial infarction were most probably precipitated by the strenuous activity he
engaged in as a firefighter at that time. He diagnosed coronary artery disease status post bypass
surgery and history of cardiac arrest. While this evidence does support appellant’s claim, it is
not enough to raise a substantial question as to the correctness of OWCP’s August 1, 2013
decision. This evidence is not so positive, precise, and explicit that it manifests on its face that
OWCP committed an error. The Board notes that clear evidence of error is intended to represent
8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

20 C.F.R. § 10.607(a).

4

a difficult standard. The Board has found that the submission of a detailed well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in
medical opinion requiring further development, is not sufficient to establish clear evidence of
error.13
Thus, the Board finds that appellant has not established clear evidence of error by OWCP
in its August 1, 2013 decision.
On appeal, appellant reiterates assertions that he made before OWCP indicating that he
had submitted sufficient medical evidence to support that his myocardial infarction was causally
related to the work incident of June 16, 2013. He also asserted that OWCP erred in not finding
clear evidence of error as he submitted critical information from his cardiologist concerning
causal relationship. However, as noted, the Board does not have jurisdiction over the merits of
the claim. As explained, appellant has not established clear evidence of error by OWCP.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
13

D.G., 59 ECAB 455 (2008).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE NAVY,
MARINE CORPS LOGISTICS BASE,
Barstow, CA, Employer
__________________________________________

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

Docket No. 10-1988
Issued: June 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 22, 2010 appellant filed a timely appeal from a nonmerit January 29, 2010
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. The final merit decision of record is dated October 7, 2009. There is no merit
decision within 180 days of July 22, 2010, the date appellant filed his appeal with the Board.
Therefore, pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board does not have jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

Accompanying his request for appeal, appellant submitted additional evidence. The Board may not consider
new evidence for the first time on appeal that was not before the Office at the time it issued the final decision in the
case. 20 C.F.R. § 501.2(c). Appellant may submit such evidence to the Office accompanying a valid request for
reconsideration.

ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
pursuant to section 8128(a).
On appeal, appellant asserts that the Office erred in denying his request for
reconsideration as he submitted relevant, pertinent new evidence supporting his request. He also
contends that the Office wrongfully failed to expand the claim to include a herniated lumbar disc,
lumbar surgery and right great toe injuries.
FACTUAL HISTORY
The Office accepted that on June 16, 2007 appellant, then a 61-year-old heavy mobile
equipment mechanic leader, sustained a lumbosacral sprain and right shoulder impingement
syndrome3 when he became caught in the inverted track of an amphibious assault vehicle and
grabbed a pole to brace himself. Appellant also claimed that the June 16, 2007 incident caused
injuries to his right leg, right hand and wrist and right great toe.
Appellant sought treatment immediately after the injury at the employing establishment
dispensary. In June 16 and 18, 2007 reports, Dr. Bernhard Stepke, a Board-certified family
practitioner, diagnosed a low back strain, lumbar radiculopathy and a right toe injury. Lumbar
x-rays showed an L4-5 disc herniation and L5-S1 degenerative disc disease. X-rays of the right
foot were negative.4
Dr. Gail Hopkins, an attending Board-certified orthopedic surgeon, submitted reports
from July 2007 to March 2008 noting the June 16, 2007 incident and appellant’s complaints of
right-sided radiculopathy and lumbar pain due to degenerative disc disease. Appellant
underwent caudal epidural steroid injections on January 14, 28 and February 11, 2008. As the
injections did not relieve his symptoms, Dr. Hopkins recommended an anterior lumbar fusion
and requested that the Office approve the procedure.
By decision dated April 9, 2008, the Office denied approval of the proposed lumbar
fusion on the grounds that the medical evidence did not establish a causal relationship between
the accepted lumbosacral sprain and the requested surgery.

3

The Office initially denied the claim for a right shoulder injury by decision dated May 8, 2008. Following
additional development, it obtained a second opinion from Dr. Bunsri Sophon, a Board-certified orthopedic surgeon,
who submitted an October 3, 2008 report supporting causal relationship. The Office accepted right shoulder
impingement syndrome on October 16, 2008.
4

A July 31, 2007 magnetic resonance imaging (MRI) scan showed L4-5 and L5-S1 disc herniations with
degenerative changes from L1 through S1 and compromised L5 and S1 nerve roots.

2

In an April 14, 2008 letter, appellant requested an oral hearing.5 He submitted documents
related to December 9, 1974 and July 20, 1976 occupational lumbar injuries and a subsequent
L5-S1 laminectomy.
On May 14, 2008 Dr. Hopkins performed an anterior L5-S1 fusion with iliac crest bone
graft and cage fixation. Appellant retired from the employing establishment on June 3, 2008.
Dr. Hopkins submitted progress reports through September 2008.
By decision dated and finalized November 18, 2008, an Office hearing representative
affirmed the April 9, 2008 decision denying an L5-S1 fusion on the grounds that the medical
evidence was insufficient to establish causal relationship.
In a January 26, 2009 report, Dr. Mary Ann Shannon, an attending Board-certified
orthopedic surgeon, diagnosed right shoulder impingement syndrome with rotator cuff and labral
tears. On April 16, 2009 she performed an open biceps tendonesis of the rights shoulder and
complete rotator cuff repair, authorized by the Office. Appellant participated in physical therapy
through August 2009.
In an undated letter, Audrey Lloyd-Davies, a physical therapist, noted administering
therapy for right carpal tunnel syndrome beginning on May 26, 2009.6 She submitted therapy
notes through September 2009.
By decision dated October 7, 2009, the Office denied appellant’s claim for right hand and
arm conditions on the grounds that causal relationship was not established.
In an October 25, 2009 letter, appellant requested reconsideration from the October 7,
2009 decision. He submitted new evidence and a duplicate copy of a report previously of record.
On November 10, 2009 Dr. Shannon prescribed physical therapy for the right upper
extremity to address carpal tunnel syndrome, a wrist strain, bicipital tenosynovitis and a labral
tear. Appellant provided physical therapy notes from November 2009 sessions.
In a November 16, 2009 report, Dr. Shannon opined that appellant needed to stabilize his
diabetes before undergoing further orthopedic treatment. She noted that the June 16, 2007 injury
may have caused a traumatic aggravation of the cervical spine with subsequent foraminal
narrowing. Dr. Shannon diagnosed a wrist strain and carpal tunnel syndrome.
By decision dated January 29, 2010, the Office denied appellant’s October 25, 2009
request for reconsideration on the grounds that his request did not raise substantive legal
questions or include new, relevant evidence. It found that, as physical therapists were not
physicians for purposes of the Act, the physical therapy notes were of no probative value.

5

The Office apparently treated appellant’s request as one for a review of the written record. This issue is not
before the Board on the present appeal.
6

June 2, 2009 electromyogram and nerve conduction velocity studies of the right upper extremity were negative
for radiculopathy.

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Dr. Shannon’s reports were not relevant as they did not contain medical rationale addressing the
crucial issue of causal relationship.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that 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.8 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.9
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.10 He or she need only
submit relevant, pertinent evidence not previously considered by the Office.11 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.12
ANALYSIS
The Office denied appellant’s claim for a right carpal tunnel syndrome by October 7,
2009 decision as the medical evidence was insufficient to establish causal relationship.
Accompanying his October 25, 2009 request for reconsideration, appellant submitted
November 10 and 16, 2009 reports from Dr. Shannon, an attending Board-certified orthopedic
surgeon, physical therapy notes and a duplicate medical report. On appeal, he asserts that these
documents were sufficiently relevant to require the Office to perform a merit review.
To be considered relevant evidence, these documents must address the causal relationship
of the claimed right carpal tunnel syndrome to the accepted June 16, 2007 injuries. This was the
critical issue in the case at the time the final merit decision was issued.
Appellant’s October 25, 2009 request for reconsideration does not contain relevant
evidence or argument. In her November 10 and 16, 2009 reports, Dr. Shannon diagnosed right
carpal tunnel syndrome and a right wrist strain. She prescribed physical therapy. However,
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

10

Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

12

Annette Louise, 54 ECAB 783 (2003).

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Dr. Shannon did not address the critical issue of causal relationship. Therefore, her reports are
irrelevant to the claim.13 The physical therapy notes are not considered medical evidence as
physical therapists are not physicians for the purposes of the Act.14 The duplicate medical report
is cumulative or previously considered evidence. The Board has held that evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.15
Appellant has not established that the Office improperly refused to reopen his claim for a
review of the merits under section 8128(a) of the Act. He did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or submit relevant and pertinent new evidence not
previously considered by the Office. As set forth above, the evidence appellant submitted on
reconsideration was not relevant to the critical issue in the case at the time of the final merit
decision. Therefore, the Office’s January 29, 2010 decision was proper under the law and facts
of the case.
On appeal, appellant asserts that the Office erred in denying his request for
reconsideration as he submitted relevant, pertinent new evidence supporting his request. As set
forth above, the evidence submitted in support of his October 25, 2009 request for
reconsideration was not relevant to the critical issue of causal relationship. Appellant also
contends that the Office wrongfully failed to expand the claim to include a herniated lumbar disc,
lumbar surgery and a right great toe injury. However, the Board does not have jurisdiction over
the merits of the claim on the present appeal.16

13

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

14

James Robinson, Jr., 53 ECAB 417 (2002); Vickey C. Randall, 51 ECAB 357 (2000); R.C., Docket No. 092095 (issued August 4, 2010).
15

Shirley Rhynes, 55 ECAB 703 (2004).

16

Appellant may submit new evidence or argument with a written request for reconsideration to the Office 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.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2010 is affirmed.
Issued: June 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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