United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cheyenne, WY, Employer
__________________________________________

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

Docket No. 13-1184
Issued: September 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 17, 2013 appellant timely appealed the March 14, 2013 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 the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
January 15, 2013.
FACTUAL HISTORY
On February 1, 2013 appellant, a 65-year-old program support assistant, filed a claim for
a traumatic injury -- “breathing problems” -- that allegedly occurred on January 15, 2013. She
reportedly suffered an asthma attack from exposure to patient odor. Appellant claimed that her
1

5 U.S.C. §§ 8101-8193.

asthma subsequently developed into pneumonia. Her February 1, 2013 claims (Form CA-1) did
not include any supporting medical evidence or factual evidence substantiating her alleged
occupational exposure on January 15, 2013. Appellant has an accepted claim (xxxxxx401) for
aggravation of extrinsic asthma which arose on or about April 9, 1999.
On February 8, 2013 OWCP wrote to both appellant and the employing establishment
regarding the need for factual and medical evidence with respect to the claimed injury arising on
January 15, 2013.It advised her of the five basic elements to establishing entitlement under
FECA. Appellant also received a questionnaire regarding her claimed occupational exposure
and possible exposure to irritants outside the workplace. OWCP specifically inquired about any
prior history of pulmonary conditions, including asthma, bronchitis and all known allergies.
Additionally, it described the type of medical evidence necessary to establish appellant’s claim,
including the need for a physician’s opinion.
In a February 21, 2013 response, the employing establishment indicated that on
January 15, 2013 appellant was exposed to a veteran “with a very strong smell of marijuana
about him.” This exposure was reportedly the cause of appellant’s asthma reaction. The
employing establishment explained that she worked in an open area where veterans, family and
others checkin for care. The employing establishment noted its plans to construct a glassenclosed receiving area which might reduce the possibility of similar reactions in the future.
Appellant submitted a March 1, 2013 response to OWCP’s February 8, 2013
questionnaire. She described the January 15, 2013 patient odor as a combination of “body odor”
and a “strong cigarette (sic) smell.” The exposure lasted only “seconds.” Appellant also noted a
prior history of asthma dating back to 1999.She was reportedly a nonsmoker. Following the
January 15, 2013 employment incident, appellant was first seen by Shannon L. Cook, a certified
family nurse practitioner (FNP-C).
OWCP received medical records dating back to November 2006 pertaining to appellant’s
asthma-related treatment, as well as other nonrespiratory/pulmonary conditions such as
gastroesophageal reflex, sleep apnea, hiatal hernia, hypertension, anxiety, various upper and
lower extremity orthopedic injuries, breast cancer with bilateral mastectomy and reconstructive
surgery and a six-day psychiatric care hospitalization in February 2013.
With respect to her claimed January 15, 2013 asthma attack, appellant was seen that
afternoon by Ms. Cook, a nurse practitioner, who diagnosed asthma exacerbation from tobacco
exposure by a patient. She reported that a patient had come in smelling of cigarette smoke and
suddenly she could not breathe. The incident happened so quickly that it scared appellant. Prior
to seeing Ms. Cook, appellant took two doses of DuoNeb while at work. The medication
relieved her wheezing.
Appellant saw Ms. Cook again on January 24, 2013. Her symptoms had reportedly
worsened. Appellant had a fever, was wheezing and had been coughing up thick green-yellow
secretions. She recently returned from a weekend visit to see her two-month-old grandchild.
Appellant reported there were a lot of fans and people. Ms. Cook again diagnosed asthma
exacerbation.

2

Appellant next saw Ms. Cook on January 31, 2013. She was reportedly doing a lot better
since her last visit. Ms. Cook diagnosed exacerbation of asthma and noted that appellant
identified marijuana smoke as an asthma trigger. Appellant told Ms. Cook that she worked in the
ambulatory care department and everytime someone came in smelling of marijuana smoke her
lungs would tighten right up. She now kept an air freshener close to her desk and was using her
rescue inhaler once or twice daily.
In addition to the January 2013 treatment notes, Ms. Cook provided contemporaneous
work excuses for January 16, 24, 25 and 31, 2013.2
By decision dated March 14, 2013, OWCP denied appellant’s traumatic injury claim.
The record lacked probative medical evidence containing a diagnosis related to the January 15,
2013 employment incident. OWCP noted that all of the evidence relevant to the claimed injury
was provided by a nurse practitioner who was not considered a physician under FECA.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a
personal injury.5
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists and social workers are not considered “physician[s]” as defined under

2

Ms. Cook also excused appellant from work for 14 days beginning February 21, 2013.However, it is unclear
whether this 14-day work excuse due to “medical illness” is related to appellant’s asthma exacerbation. On
February 14, 2013 Ms. Cook diagnosed anxiety and the record indicates that appellant was hospitalized for
psychiatric care from February 14 to19, 2013.Her February 21, 2013 work excuse does not specifically mention
appellant’s asthma or her anxiety as the reason(s) for her excused absence. Thus, it is unclear for what “medical
illness” appellant was excused beginning February 21, 2013.
3
4

20 C.F.R. § 10.115(e), (f); seeJacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).
Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question which generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background.Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s).Id.

3

FECA.6Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to FECA benefits.7 However, a report from a physician assistant or
certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician.8
ANALYSIS
Appellant submitted various treatment records documenting her prior history of asthma.
The record also indicates that OWCP previously accepted a claim for aggravation of extrinsic
asthma which arose on or about April 9, 1999. With respect to the current claim for injury
arising on January 15, 2013, OWCP has accepted that the employment incident occurred as
alleged. Thus, appellant has established the first component of fact of injury. However, OWCP
denied her traumatic injury claim because she did not satisfy the second component of fact of
injury. Appellant failed to demonstrate that the January 15, 2013 employment incident caused a
personal injury.
Nurse PractitionerCook saw appellant on January 15, 2013 and diagnosed asthma
exacerbation. She noted that appellant had a reaction at work to a patient who smelled of
cigarette smoke. Ms. Cook saw appellant again on January 24 and 31, 2013 and similarly
diagnosed asthma exacerbation. Her latest report also referenced marijuana smoke as an asthma
trigger. Ms. Cook is not a “physician” as that term is defined under FECA. Also, her
January 2013 treatment records were not countersigned by a qualified physician.
OWCP’s February 8, 2013 development letter advised appellant of the necessity of
submitting a narrative report from a qualified physician. The letter specifically noted, “[n]urse
practitioners and physician assistants are not considered qualified physicians under FECA unless
the medical report is countersigned by a physician.” OWCP left appellant a similar message via
voicemail on March 8, 2013. Despite OWCP’s clear instructions, the only medical evidence
appellant submitted relevant to the claimed injury of January 15, 2013 was Ms. Cook’s
January 2013 treatment records.
In her April 17, 2013 application for review (AB-1), appellant acknowledged that she had
been told that she needed a physician’s signature on her progress notes. She also acknowledged
that Ms. Cook was not a practicing physician. Appellant noted that she asked Ms. Cook to have
the physicians she worked under cosign the notes and submit them to OWCP. When she
checked back, it had reportedly already been done. The Board notes that the record on appeal
does not include any additional copies of Ms. Cook’s January 2013 treatment notes that have
been countersigned by a qualified physician.9

6

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

7

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)(January 2013).

9

The current record does not include any new evidence received after the March 14, 2013 decision. But even if
new evidence had been submitted, the Board is precluded from considering such evidence for the first time on
appeal. 20 C.F.R. § 501.2(c)(1).

4

Appellant has not submitted probative medical evidence demonstrating that her accepted
January 15, 2013 employment exposure caused a personal injury. Accordingly, OWCP properly
denied her traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.Pursuit to 5 U.S.C. §8128(a) and
20 C.F.R. §§ 10.605 through 10.601.
CONCLUSION
Appellant has not established that she sustained an injury in the performance of duty on
January 15, 2013.
ORDER
IT IS HEREBY ORDERED THATthe March 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Nashville, TN, Employer
__________________________________________

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

Docket No. 14-61
Issued: April 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 17, 2013 appellant timely appealed the September 25, 2013 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 the claim.2
ISSUE
The issue is whether appellant sustained an injury-related right foot drop.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its September 25, 2013 decision. The
Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its final
decision. 20 C.F.R. § 501.2(c)(1) (2012).

FACTUAL HISTORY
This case was previously before the Board.3 Appellant, a 64-year-old former
transportation security screener, has an accepted occupational disease claim for lumbar spinal
stenosis and bilateral leg sprains which arose on or about March 2, 2006.4 He attributed his
injury to lifting baggage at a checkpoint area over a 12-week period. OWCP approved a
March 15, 2007 laminectomy at L4-5 and an April 2, 2007 L4-5 anterior lumbar interbody
fusion. On August 20, 2007 appellant underwent a right knee arthroscopic procedure, which
OWCP authorized under claim number xxxxxx871.5 He resumed work on August 28, 2007 as a
driver’s license examiner for the Tennessee Department of Safety, a position he had held since
August 2006. When he returned to work in August 2007, appellant accepted a 90-day modified
assignment which was scheduled to expire on November 28, 2007. Once the 90-day period
ended, the employing establishment decided against retaining his services. Appellant, therefore,
filed a claim for wage-loss compensation (Form CA-7) with respect to his March 2, 2006
employment injury.6 He also filed a claim for a schedule award.
By decision dated March 12, 2008, OWCP denied appellant’s claim for temporary total
disability (TTD) on or after November 28, 2007. On March 25, 2008 it issued a decision
denying his claim for a schedule award. When the case was last on appeal, the Board affirmed
both decisions.7 OWCP has since expanded appellant’s claim to include acute respiratory failure
as an accepted condition.8 Also, it paid wage-loss compensation for TTD beginning
November 14, 2008 and placed him on the periodic compensation rolls effective
March 15, 2009.
OWCP authorized additional lumbar surgery, which was performed on May 11, 2009.9
Following his latest surgery, appellant continued to experience low back and right lower
extremity pain. In September 2009, his surgeon referred him to Dr. William H. Leone, a Board3

Docket Nos. 08-1351 & 08-1355 (issued November 7, 2008).

4

Appellant previously sustained an employment-related right knee strain on February 3, 2004 claim number
(xxxxxx815). He also injured his right knee on July 29, 2005, which OWCP accepted for right medial meniscus tear
claim number (xxxxxx871). Additionally, OWCP authorized right knee arthroscopic surgery which was performed
on September 29, 2005.
5

OWCP subsequently closed appellant’s July 29, 2005 right knee claim number (xxxxxx871) and included the
previously accepted right medial meniscus tear under the current claim number (xxxxxx368).
6

Appellant was already receiving compensation for a loss of wage-earning capacity due to his July 29, 2005 right
knee injury claim number (xxxxxx871).
7

The Board’s October 7, 2008 decision is incorporated herein by reference.

8

On November 14, 2008 appellant was being treated in the emergency room (ER) for extreme back pain. While
in the ER, he stopped breathing and was placed on a respirator. Appellant’s acute respiratory failure was attributed
to Ativan (benzodiazepine) he received in the ER and central alveolar hypoventilation.
9

Dr. Richard A. Berkman, a Board-certified neurosurgeon, performed a laminectomy and facetectomy at L2-3
and L3-4 with removal of previous scar cicatrix. Additionally, he removed pedicle screws at L4-5. Dr. Berkman
was also responsible for appellant’s two prior lumbar surgeries in March and April 2007.

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certified anesthesiologist specializing in pain management. Dr. Leone treated appellant from
October 2009 through February 2011, at which time appellant relocated from Tennessee to
Arkansas. Dr. Leone’s latest diagnosis was lumbar radiculopathy and lumbar postlaminectomy
syndrome.
Dr. Michael R. Stone, a Board-certified anesthesiologist with a subspecialty in pain
medicine, began treating appellant on May 6, 2011. He noted that appellant was initially injured
on March 2, 2006 while working for the employing establishment. Dr. Stone examined appellant
and reviewed previous medical records, which included various operative reports and magnetic
resonance imaging (MRI) scans of the cervical and lumbar spine. His initial diagnosis was
lumbar radiculopathy, failed back syndrome and lumbar neuropathy. Appellant saw Dr. Stone
again on June 10, 2011 and had another follow-up appointment on September 23, 2011.
Dr. Stone’s September 23, 2011 physical examination findings included, inter alia, right foot
drop with some numbness of the right leg. He continued to diagnose lumbar radiculopathy,
failed back syndrome and lumbar neuropathy. Dr. Stone advised appellant to return in four
months. When he next saw appellant on January 6, 2012, he reported that appellant was using a
cane and had right foot drop. Physical examination also revealed that appellant was unstable
with his walking and was tender at L4-5 and L5-S1. Dr. Stone again diagnosed lumbar
radiculopathy, failed back syndrome and lumbar neuropathy. Appellant was to continue his
current medications, which included hydrocodone, Lyrica and Ambien.
Appellant continued to see Dr. Stone every three to four months. Dr. Stone’s March 2,
June 22 and September 28, 2012 treatment notes consistently reported findings of right foot drop
on physical examination. He continued to diagnose lumbar radiculopathy, failed back syndrome
and lumbar neuropathy.
When appellant returned on December 28, 2012, he continued to complain of low back
and right leg pain. Dr. Stone noted that appellant previously had right leg bracing, which
recently broke. On physical examination, he noted that appellant’s right foot drop was
prominent and that he walked with a cane. Dr. Stone also noted that appellant was having
difficulty with stumbling. Appellant’s lumbar area was mostly nontender and he had positive
straight leg raise at about 10 degrees on the right. Dr. Stone diagnosed lumbar radiculopathy,
failed back syndrome, lumbar neuropathy and foot drop, with dragging foot on the right. He
increased appellant’s hydrocodone dosage to help with his pain and recommended bracing to
help with his foot drop. Dr. Stone explained that appellant had a dragging foot that made him
unstable and more apt to fall. He reported similar findings on March 8, 2013. Dr. Stone added
that he was having difficulty contacting OWCP regarding the recommended bracing to help with
appellant’s foot drop, noting that he continued to walk with instability.
On March 13, 2013 OWCP advised appellant that it received notification of a possible
consequential condition of right foot drop in relation to his March 2, 2006 employment injury. It
further advised that Dr. Stone’s December 28, 2012 report was insufficient to establish that the
condition was causally related to the accepted injury, treatment received or any of the accepted
medical conditions. The letter included instructions for Dr. Stone regarding the required medical
evidence, as well as a statement of accepted facts. OWCP afforded appellant 30 days to submit
the requested information.

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In a March 23, 2013 response, Dr. Stone explained that he treated appellant for lumbar
spine and leg pain, as wells as right foot drop. While he started seeing appellant in 2011, he
noted that the initial injury occurred five years earlier in 2006. Dr. Stone also reported that
appellant continued to have right foot drop. Additionally, he indicated that appellant’s brace was
broken and that he continued to try to get a new leg bracing system for him. Dr. Stone further
noted that foot drop had been present for several years before he first saw appellant. He stated
that the condition was related to appellant’s back pathology as evident on MRI scan. However,
Dr. Stone indicated that this occurred years before appellant became his patient. He reiterated
his diagnoses of lumbar radiculopathy, failed back syndrome, foot drop and lumbar neuropathy.
In an April 17, 2013 report, the district medical adviser (DMA) noted his disagreement
with appellant’s treating physician regarding the diagnosis of right foot drop. He noted that
Dr. Stone had not done any muscle testing of the right or left toes, foot or ankle and had not
measured the girth of appellant’s right leg in comparison to his left. The DMA also reviewed
other medical reports and commented that the medical records did not show on a clinical basis
that appellant had right foot drop. He found that there was no medical basis to accept right foot
drop as being consequential to the conditions already accepted by OWCP.
In follow-up treatment notes dated June 7 and August 16, 2013, Dr. Stone continued to
diagnose lumbar radiculopathy, failed back syndrome, lumbar neuropathy and foot drop.
OWCP referred appellant to Dr. William F. Blankenship, a Board-certified orthopedic
surgeon, to determine whether he had right foot drop.10 Dr. Blankenship examined appellant on
August 20, 2013 and reviewed various medical records. He noted a history of injury lifting bags
on March 2, 2006. Dr. Blankenship also noted that appellant had undergone two lumbar
surgeries in 2007 and another surgical procedure in April 2009. Appellant reportedly advised
Dr. Blankenship that he had right foot drop problems since the original onset in 2006. On
physical examination Dr. Blankenship noted that appellant had a tremor while sitting in the
examination room. Appellant’s right foot was in inversion and plantar flexion. Examination of
the right foot revealed some decreased skin temperature and hyperemia. Dr. Blankenship noted
that he did not see any skin distribution changes in the right foot as compared to the left foot, nor
in hair or nail. Appellant reportedly commented that the hair on his left leg grew faster than on
the right. Dr. Blankenship also noted that, as appellant stood in an unknown position, his right
foot went out of the inverted position and became more plantar grade. He further commented
that examination of the right foot revealed no excessive callus formation in relation to the left
foot. Additionally, Dr. Blankenship noted that there was no muscle activity whatsoever to
attempt to move the right foot from the held inverted plantar flexed position. Knee jerks were
10

OWCP previously referred appellant to Dr. Thomas P. Rooney and Dr. Kenneth M. Rosenzweig, both of whom
are Board-certified orthopedic surgeons. Dr. Rooney examined appellant on August 31, 2011 and recommended
additional testing, which included electromyography and nerve conduction studies, a whole body bone scan and
computerized tomography angiography of the abdomen and lower extremities. Dr. Rosenzweig subsequently
examined appellant on August 24, 2012. Although their respective reports included findings regarding appellant’s
lower extremities, at the time OWCP focused its inquiry on his ability to return to work and had not specifically
requested that either physician address the cause and/or extent of appellant’s claimed right foot drop. In fact,
OWCP’s referral to Dr. Rooney predated Dr. Stone’s initial September 23, 2011 finding of right foot drop. Because
OWCP’s prior development did not focus on the issue of right foot drop, OWCP subsequently referred appellant to
Dr. Blankenship to address this particular condition.

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normoactive and equal bilaterally. There was an ankle jerk on the left, but Dr. Blankenship
reportedly could not get an ankle jerk on the right. He attributed this in part to the positioning of
appellant’s right foot and ankle. Dr. Blankenship also noted that there were pulses in both feet.
Appellant’s left and right thigh both measured 40 centimeter (cm). His left calf measured 43 cm,
whereas his right calf measured only 40 cm. Dr. Blankenship commented that appellant had two
knee surgeries on the right side. He further noted that examination of the lumbar spine revealed
a well-healed incisional scar in the lower portion of the spine. Flexion was approximately 65
degrees and hyperextension was neutral.
After describing his own examination findings, Dr. Blankenship provided a synopsis of
the various medical reports and records he reviewed. He then diagnosed lumbar stenosis/spinal
stenosis and status post three surgical procedures. In response to OWCP’s question of whether
appellant had a consequential work-related right foot drop condition, Dr. Blankenship stated that
there was no objective evidence that appellant had drop foot as a result of his work-related
injury.
In a September 25, 2013 decision, OWCP found that appellant had not established that
his claimed right foot drop was causally related to the March 2, 2006 employment injury, the
accepted medical condition(s) or any authorized medical treatment, including OWCP-approved
lumbar surgeries.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.11
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to claimant’s own intentional misconduct.12 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.13
ANALYSIS
The Board finds that the case is not in posture for decision.
11

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
12

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law 10-1 (2006).
13

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

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Appellant’s physician, Dr. Stone, consistently reported findings of right foot drop on
physical examination dating back to September 23, 2011. In his March 23, 2013 report,
Dr. Stone attributed appellant’s right foot drop to his employment-related back pathology. He
noted that foot drop had been present for several years before he first saw appellant in May 2011.
In an April 17, 2013 report, the DMA disagreed with Dr. Stone regarding the diagnosis of right
foot drop. OWCP then referred the case to Dr. Blankenship for a second opinion evaluation.
Dr. Blankenship examined appellant on August 20, 2013 and also reviewed various medical
records. His report included, a four-page synopsis of the medical records he reviewed. Based on
his examination and review, Dr. Blankenship diagnosed lumbar stenosis/spinal stenosis and
status post three surgical procedures and found no objective evidence that appellant had drop
foot as a result of his work-related injury.
In its September 25, 2013 decision, OWCP did not specifically rely on Dr. Blankenship’s
August 20, 2013 report, but instead noted the absence of any well-reasoned medical opinion
establishing that a right foot drop condition was causally related to appellant’s March 2, 2006
employment injury.
While the burden lies with appellant to establish entitlement to benefits, once OWCP
undertakes development of the record, it must do a complete job in procuring medical evidence
that resolves the relevant issues in the case.14 Dr. Stone’s various reports did not satisfy
appellant’s burden. Dr. Blankenship performed a second opinion examination for OWCP.
However, his report did not adequately explain how he arrived at his findings. Dr. Blankenship
provided a brief description of his physical examination findings and a four-page synopsis of
appellant’s medical records.15 The Board finds that Dr. Blankenship’s report is insufficient.
Dr. Blankenship does not explain how the medical records and physical examination
demonstrate the absence of right-sided foot drop, which is causally related to appellant’s
accident. OWCP should seek further information and clarification from Dr. Blankenship.16
Accordingly, the case is remanded for further development. After OWCP has developed the
record to the extent it deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

Richard F. Williams, 55 ECAB 343, 346 (2004).

15

Noticeably absent from this synopsis was any reference to Dr. Stone’s March 23, 2013 opinion.

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3f(2)(a) (July 2011).

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ORDER
IT IS HEREBY ORDERED THAT the September 25, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: April 17, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 16-0750
Issued: June 28, 2016

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a December 22, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated June 26, 2015 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for an
oral hearing pursuant to 5 U.S.C. § 8124(b)(1).
FACTUAL HISTORY
Appellant, a 58-year-old letter carrier, filed a traumatic injury claim (Form CA-1) for
benefits on August 18, 2014, alleging that he injured his left knee, left ankle, right wrist, right
1

5 U.S.C. § 8101 et seq.

elbow, and shoulder on September 24, 2012 when he slipped and fell on seeds while walking on
a sidewalk. On December 4, 2014 OWCP accepted the claim for left knee sprain, right shoulder
sprain, and right wrist sprain.
By letter dated February 19, 2015, OWCP advised appellant that requests for
authorization of medical treatment had been received for left knee endstage osteoarthritis with
degenerative meniscal tear and cervical radiculitis. It noted, however, that these conditions were
not accepted as causally related to the August 18, 2014 employment injury. Appellant was
afforded 30 days to submit medical documentation that his claim should be expanded.
In a report dated April 30, 2015, Dr. John W. Miles, a Board-certified orthopedic
surgeon, related that he was treating appellant for his left knee condition, but that Dr. Lester
Deguzman, a family practitioner, was the treating physician for appellant’s cervical condition.
He explained that appellant had a preexisting left knee condition, but that his medial
compartment complaints increased substantially since his fall at work. Dr. Miles related that a
magnetic resonance imaging (MRI) scan revealed advanced tricompartmental arthritis and tear of
the medial meniscus. He concluded that, while appellant did have a preexisting condition, it was
aggravated by the employment injury.
In a report dated May 5, 2015, Dr. Deguzman noted diagnoses of neck strain, right
shoulder strain, left knee contusion, left knee severe osteoarthritis, and left knee degenerative
meniscal tear. He related that appellant had failed conservative treatment of his neck and right
shoulder conditions.
By decision dated June 26, 2015, OWCP denied expansion of appellant’s claim, finding
that he failed to submit sufficient medical evidence to expand his claim to include additional
diagnoses of cervical radiculitis and left knee endstage medial compartment osteoarthritis with
degenerative meniscal tear.
On October 16, 2015 appellant requested an oral hearing before an OWCP hearing
representative.
In a decision dated December 22, 2015, OWCP denied appellant’s request for a hearing
as untimely filed pursuant to 5 U.S.C. § 8124. It informed appellant that his case had been
considered in relation to the issues involved and that the request was further denied for the
reason that the issue in this case could be addressed by requesting reconsideration from the
district office and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.2
Section 10.615 of the federal regulations implementing this section of FECA provides that a
hearing is a review of an adverse decision by an OWCP hearing representative. Initially, the
2

Id. at § 8124(b)(1).

2

claimant can choose between two formats: an oral hearing or a review of the written record. In
addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.3 A request for either an oral hearing or a review of the written record must be
submitted, in writing, within 30 days of the date of the decision for which the hearing is sought.4
A claimant is not entitled to a hearing if the request is not made within 30 days of the date of the
decision.5 OWCP has discretion, however, to grant or deny a request that is made after this 30day period.6 In such a case, it will determine whether a discretionary hearing should be granted
and, if not, will so advise the claimant with reasons.7
While a claimant may not be entitled to a hearing as a matter of right if the request is
untimely, OWCP has the discretionary authority to grant the request and must properly exercise
such discretion.8
ANALYSIS
On October 16, 2015 appellant requested an oral hearing. Because he did not request the
hearing within 30 days of the June 26, 2015 decision, he was not entitled to a hearing as a matter
of right under section 8124(b)(1).
OWCP has the discretionary authority to grant the request and it must exercise such
discretion. In its December 22, 2015 decision, it properly exercised its discretion by notifying
appellant that it had considered the matter in relation to the issue involved and that additional
evidence and argument could be submitted with a request for reconsideration. The Board has
held that the only limitation on OWCP’s authority is reasonableness. An abuse of discretion is
generally shown through proof of manifest error, a clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts.9
In this case, there is no evidence of record that OWCP abused its discretion by denying
appellant’s hearing request.
Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral
hearing.

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

James Smith, 53 ECAB 188 (2001).

6

20 C.F.R. § 10.616(b).

7

Supra note 5.

8

See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26
ECAB 354 (1975).
9

See R.P., Docket No. 16-0477 (issued April 18, 2016).

3

CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for an oral hearing pursuant to 5 U.S.C. § 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 28, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Terre Haute, IN, Employer
__________________________________________

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

Docket No. 19-0555
Issued: March 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 9, 2018 appellant filed a timely appeal from a May 25, 2018 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated March 13, 2018, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s May 4, 2018 request for an oral
hearing as untimely filed.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

FACTUAL HISTORY
On January 30, 2018 appellant, then a 37-year-old secretary, filed a traumatic injury claim
(Form CA-1) alleging that she sustained an emotional condition on January 29, 2018 as a result of
witnessing a contraband search of an inmate. She alleged that, while sitting at her desk reviewing
daily paperwork, another staff member brought three inmates into the lieutenant’s office to conduct
visual searches. While the staff member was conducting a visual search on one of the inmates in
the holding cell, one of the inmates sitting on the bench reached into his shoe and had something
in his hand. Appellant claimed that she began to have heart palpitations, severe tremors, and
dizziness as a result of exposure to the contraband found on the inmate. She did not stop work.
In a report dated January 29, 2018, Dr. Anita Toussi, an emergency medicine specialist,
reported that appellant presented to the emergency department with possible drug exposure at work
and diagnosed accidental work exposure with opiate substances, palpitation, and tremor. She
related that appellant was working at a federal prison that day when she accidentally touched a
piece of paper that was soaked in K2. Appellant reportedly began shaking and immediately used
hand sanitizer on her hands.
By development letter dated February 12, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish her occupational disease claim. It noted that she
had not submitted evidence sufficient to establish that she actually experienced the employment
factors alleged to have caused her injury. OWCP advised her of the type of medical and factual
evidence needed and provided a questionnaire for her completion. It afforded appellant 30 days
to submit the necessary evidence. Appellant did not submit a response.
By decision dated March 13, 2018, OWCP denied appellant’s claim, finding that she had
not submitted sufficient factual evidence to establish her claim.
On May 8, 2018 OWCP received appellant’s request for a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review, accompanied by a copy of OWCP’s
March 13, 2018 decision. The request was dated April 30, 2018 and postmarked on May 4, 2018.
In an April 30, 2018 memorandum addressed to OWCP’s Branch of Hearings and Review,
appellant reiterated that she had experienced accidental exposure to drugs when she handled
contraband discovered on an inmate without the use of gloves while in the performance of duty.
She asserted that, upon exposure, she became ill, experiencing symptoms of aggressive shaking
and could not continue to work. Appellant further noted that subsequent tests on the contraband
revealed that it was contaminated with Morphine and she continues to have symptoms of loss of
concentration and focus. She noted that April 30, 2018 was the first date that she had been
provided with a copy of the March 13, 2018 decision by the safety specialist at the employing
establishment and she also requested that all future correspondence be sent to her home address.
By decision dated May 25, 2018, OWCP denied appellant’s request for an oral hearing. It
found that her request was not made within 30 days of OWCP’s March 13, 2018 decision. As
such, appellant was not entitled to a hearing as a matter of right. OWCP exercised its discretion
and determined that it would not grant a hearing for the reason that the issue in the case could
equally well be addressed by requesting reconsideration and submit new evidence establishing an
employment-related injury.
2

LEGAL PRECEDENT
Section 8124 of FECA provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made within 30 days after issuance of an OWCP final decision.3
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”4
Under section 10.616(a), “[a] claimant injured on or after July 4, 1966, who had received
a final adverse decision by the district OWCP may obtain a hearing by writing to the address
specified in the decision. The hearing request must be sent within 30 days (as determined by
postmark or other carrier’s date marking) of the date of the decision for which a hearing is sought.”5
OWCP’s regulations further provide that a request received more than 30 days after
OWCP’s decision is subject to OWCP’s discretion6 and the Board has held that OWCP must
exercise this discretion when a hearing request is untimely.7
ANALYSIS
Appellant requested an oral hearing utilizing the appeal request form that accompanied
OWCP’s March 13, 2018 merit decision. OWCP noted that appellant’s request was postmarked
May 4, 2018, which was more than 30 days after OWCP’s March 13, 2018 decision.8 Section
8124(b)(1) is unequivocal on the time limitation for requesting a hearing.9 For this reason, the
Board finds that the request was untimely and appellant was not entitled to an oral hearing as a
matter of right.
Although appellant was not entitled to a hearing, OWCP may exercise its discretion to
either grant or deny an oral hearing even if appellant is not entitled to a review as a matter of
right.10 The Board finds that OWCP, in its May 25, 2018 decision, properly exercised its
discretionary authority by noting that it had carefully considered the matter and denied appellant’s
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

Id. at § 10.616(b).

7

D.W., Docket No. 17-1413 (issued December 18, 2018); Samuel R. Johnson, 51 ECAB 612, 613-14 (2000).

8

Under OWCP regulations and procedures, the timeliness of a request for a hearing is determined on the basis of
the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is not legible, the request
will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
9

William F. Osborne, 46 ECAB 198 (1994).

10

D.E., 59 ECAB 438, 442-43 (2008); J.C., 59 ECAB 206, 210-11 (2007).

3

request for an oral hearing as her claim could be equally well addressed through a reconsideration
application.11 The Board has held that the only limitation on OWCP’s authority is reasonableness.
An 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 deduction
from established facts.12 Herein, the evidence of record does not indicate that OWCP committed
an abuse of discretion in connection with its denial of appellant’s request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly denied appellant’s May 4, 2018 request for an oral
hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 14, 2019
Washington, DC

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

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

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

11

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 known facts. See André Thyratron,
54 ECAB 257, 261 (2002).
12

See Daniel J. Perea, 42 ECAB 214, 221 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND -- ATLANTIC,
Bayonne, NJ, Employer
__________________________________________

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

Docket No. 15-0672
Issued: September 23, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 9, 2015 appellant filed a timely appeal from the October 21, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective November 22, 2013.

1

5 U.S.C. § 8101 et seq.

On appeal appellant challenges the date of the employment incident and alleges
numerous intentional actions by several government agencies to harm him and to falsify his case
record.2
FACTUAL HISTORY
On November 21, 1991 appellant, then a 39-year-old wiper, filed an occupational disease
claim (Form CA-2) alleging that on August 31, 1990, while on duty on the USNS Comfort which
was sailing to Bahrain, there was an altercation and he was taken to the hospital where they tied
him down and gave him an injection. He listed his disease as schizophrenia.3
In a September 4, 1990 attending physician’s report, Dr. Michael P. Dinneen, the ship’s
Board-certified psychiatrist, noted that appellant became fearful that others on the ship were
attempting to harm him. The date of injury was recorded as August 31, 1990. Dr. Dinneen
noted that when he evaluated appellant on that date, he was acutely psychotic, paranoid, and
delusional. He diagnosed schizophrenia and checked a box indicating that he believed that the
disease was related to appellant’s history of injury. Dr. Dinneen opined that appellant should
work in an environment that had less stress and more regular hours with opportunities for
privacy and availability of medical treatment. He placed appellant on medication.
In a January 19, 1992 statement a colleague stated that on the date of the incident,
appellant was assigned to cleaning and some employees kept messing the area just cleaned and
that resulted in arguments with his coworkers.
In an October 30, 1991 report, Dr. Theodore R. Kessler, a psychiatrist, noted that he had
appointments with appellant on October 10 and 12 and November 2, 1991. He diagnosed
adjustment reaction with mixed emotional features, major depressive disorder, and generalized
anxiety disorder. Dr. Kessler noted that appellant attributed his illness to employment-related
difficulties. He stated that appellant’s complaints were consistent with a decreased tolerance for
stress on the job. Dr. Kessler felt that appellant should be granted a leave of absence until his
functioning and diagnosis can be further stabilized. He found appellant’s prognosis to be
guarded.
On May 5, 1992 OWCP accepted appellant’s claim for adjustment reaction with mixed
emotional features, and commenced compensation payments.
Appellant continued to submit medical evidence on a sporadic basis. On or about
September 13, 2006, Dr. Federico Dumenigo, a nephrologist, provided handwritten responses to
questions OWCP sent to appellant. He indicated that appellant had severe depression, that the
accepted employment injury was still present, that appellant suffered from delusions and
hallucinations, that appellant’s disability appeared to be permanent, and that appellant was
disabled. Appellant remained on disability compensation.
2

On February 9, 2015 appellant submitted a timely request for oral argument in connection with OWCP’s
October 21, 2014 decision. After exercising its discretion, the Board, in an order issued on July 24, 2015, denied her
request for oral argument, finding that the arguments on appeal could be adequately addressed in a decision based on
a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0672 (issued July 24, 2015).
3

The form is unclear as to whether the injury allegedly occurred on August 31, 1990 or 1991.

2

On October 2, 2008 OWCP referred appellant to Dr. David Tobolowsky, a Boardcertified psychiatrist, for a second opinion to assess appellant’s current medical condition and
continuing disability and to determine limitations due to his employment-related injury of
August 31, 1990. In an October 17, 2008 report, Dr. Tobolowsky diagnosed schizophrenia,
paranoid, chronic. He also noted that appellant had paranoid and schizoid personality traits
likely of long duration. Dr. Tobolowsky indicated that appellant first suffered a psychotic
episode coincidentally with starting to work for the employing establishment, and that, since then
he has been on disability, has not returned to work, and lived an isolated existence. He opined
that the diagnosed psychological disorder, in retrospect, may have developed regardless of what
appellant might have been doing at the time. In further explanation Dr. Tobolowsky related that
most people develop schizophrenia in late teens or twenties, and appellant was significantly older
at the time of onset. Therefore he opined that it was likely that appellant’s work triggered the
onset of the disease in a vulnerable individual of what has become a lifetime psychotic illness.
Dr. Tobolowsky concluded that appellant was unable to perform any work at present as he was
isolated and delusional and likely unable to relate to supervisors or peers in a work setting. In
addressing causal relationship, he noted that no restrictions were attributable to preexisting
conditions, and that appellant’s condition was not an aggravation of a nonwork-related condition.
Appellant remained on compensation.
In a November 3, 2009 progress note and bill, Dr. Rigoberto Rodriguez, a Board-certified
psychiatrist, listed appellant’s diagnosis as schizoaffective disorder and noted that he was
providing pharmacologic management.
On September 8, 2010 OWCP referred appellant to Dr. Henry Storper, a Board-certified
psychiatrist, for another second opinion to determine appellant’s current work status. In an
October 8, 2010 opinion, Dr. Storper diagnosed schizophrenia, schizoaffective type. He noted
severe work difficulties and severe interpersonal difficulty. Dr. Storper related that appellant
showed a paranoid delusional system and active auditory hallucinations as well as problems with
attention span concentration, focus, task completion, and marked impairment in relationships
with peers and family. He opined that appellant was a severely impaired individual who was
totally and completed disabled from work. Regarding diagnosis, Dr. Storper noted that
appellant’s psychiatric illness was far more severe than prolonged depressive reaction, and there
were still affective components to his current symptomatology. He concluded that appellant’s
illness, which began while he was on duty with the employing establishment and disabled him, is
the same illness that he was diagnosing as schizophrenia, and it was still present and disabling.
In a statement of accepted facts (SOAF) dated November 10, 2010, OWCP noted that
appellant’s claim was accepted for adjustment reaction with mixed emotional features. It also
noted an accepted factor of employment that appellant had to reclean areas of the ship because
workers dropped cigarette butts in areas that he recently cleaned. Appellant remained on the
periodic rolls.
On August 20, 2012 OWCP referred appellant to Dr. Antonio DeFilippo, a Boardcertified psychiatrist, for a second opinion as to appellant’s work capacity. In a November 9,
2012 report, Dr. DeFilippo diagnosed schizoaffective disorder, bipolar type. He did not believe
this was due to the employment injury of August 31, 1991, but believed they were just related in
time in that appellant was working while he had a psychotic breakdown aboard the ship.
Dr. DeFilippo noted that at times severe stress may cause a psychotic break to happen, that
3

appellant did not have any history of extreme distress while working on the ship. He noted that
appellant did have some traits of paranoid personality disorder, and that he did not appear to be
malingering. Regarding causal relationship, Dr. DeFilippo concluded that schizophrenia is not
causally related to any type of employment injury. He did note that due to appellant’s severe
paranoia appellant was unable to work in any capacity at this time. Dr. DeFilippo opined that
appellant has reached maximum recovery and that his delusions are fixed and have been stable
for many years.
In a January 9, 2013 supplemental report, Dr. DeFilippo noted that Dr. Gary Traub, a
psychologist, conducted testing and opined that Dr. Traub’s testing did not change his prior
report.
OWCP determined that a conflict existed between Dr. DeFilippo and Dr. Storper.
Therefore, on April 15, 2013 it referred appellant to Dr. Juan Espinosa, a Board-certified
psychiatrist, to resolve a conflict regarding the causal relationship between appellant’s
schizophrenia disorder and that of the employment injury, extent of remaining injury-related
disability, current work capacity, and recommendations for future treatment. In a May 31, 2013
report, Dr. Espinosa diagnosed paranoid-type schizophrenia unspecified state. He opined that
appellant’s condition was not due to employment injury, noting that schizophrenia may be
triggered by stress but is not caused by it. Dr. Espinosa noted no signs of malingering.
Regarding causal relationship, he stated that he did not believe that there was a causal
relationship between appellant’s condition and the accepted events. Dr. Espinosa noted that
appellant had limitations that were secondary to his illness and not to the accepted events of his
injury and that because of his psychosis he was not able to hold a job. He concluded that he did
not believe that appellant’s psychotic disorder was a consequence of his employment injury, and
did believe that appellant had reached maximum medical improvement.
In a September 17, 2013 statement, an OWCP medical adviser stated that on October 8,
2012 appellant was diagnosed with schizoaffective disorder, bipolar type. On December 4, 2012
his diagnosis was schizoaffective disorder versus bipolar disorder with psychotic features, and on
May 22, 2013 he was said to be suffering from paranoid schizophrenia.
On September 18, 2013 OWCP issued a “notice of proposed decision” termination of
medical and wage-loss compensation based on appellant’s adjustment/prolonged depressive
reaction because the evidence established that he no longer had residual or disability due to the
accepted employment injury. In reaching this conclusion, it determined that the weight of the
medical evidence was represented by Dr. Espinosa as the impartial medical examiner, and that
both Dr. DeFilippo and Dr. Espinosa established that appellant’s accepted medical condition of
adjustment/prolonged depressive reaction had ceased or was no longer injury related.
By decision dated November 22, 2013, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits effective that date.
On December 20, 2013 appellant requested an oral hearing and/or review of the written
record before the Branch of Hearings and Review.
A hearing was held before an OWCP hearing representative on August 5, 2014. At the
hearing, appellant contended that all the information in his case record was wrong. He

4

contended that he was not injured on August 31, “1991” as he was not hired by the employing
establishment until September 1997, and alleged that his injury occurred on July 16, 1999.
Appellant alleged that he was doing his job and was arrested for no reason, that he was given an
injection at his “capture” which provoked him, and resulted in him being placed under restraints.
He advised that he is homeless. The hearing representative advised appellant that it had been
years since appellant had submitted medical evidence and asked him for a current medical report.
In an October 21, 2014 decision, the hearing representative affirmed the November 22,
2013 decision of OWCP. She noted that, although OWCP erroneously found Dr. Espinosa to be
an impartial medical examiner, the weight of the medical evidence established that appellant no
longer had residuals from his employment-related condition.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 Following a
proper termination of compensation benefits, the burden of proof shifts back to claimant to
establish continuing employment-related disability.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which requires further medical treatment.7
ANALYSIS
OWCP accepted appellant’s claim for adjustment reaction with mixed emotional features
as a result of an incident that occurred while appellant was aboard a ship working for the
employing establishment on August 31, 1990. This acceptance was based, at least in part, on the
October 30, 1991 report wherein Dr. Kessler diagnosed appellant with adjustment reaction with
mixed emotional features, major depressive disorder, and generalized anxiety disorder. OWCP
terminated appellant’s compensation and medical benefits effective November 22, 2013, as it
determined that the accepted medical condition had resolved.
Initially, the Board is not persuaded by appellant’s argument that the date of injury was
actually July 16, 1999. Appellant’s allegation of an incorrect date of injury is belied by the fact
that OWCP received his claim form on November 25, 1991 and accepted appellant’s claim on
May 5, 1992. In a September 4, 1990 medical report, Dr. Dinneen noted his treatment of
appellant for schizophrenia and discussed appellant’s employment on the ship. The record
contains a plethora of evidence prior to July 16, 1999, including multiple medical reports and
evidence that appellant received compensation payments starting in 1992. Therefore, appellant’s
4

Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013).

5

John F. Glynn, 53 ECAB 155 (2001).

6

See T.P., 58 ECAB 524 (2007).

7

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

argument with regard to the date of his injury being incorrect has no merit. The Board further
finds that there is no evidence that appellant’s record was falsified.
The termination of benefits was based on the medical report of Drs. DeFilippo and
Espinosa. The Board notes that the hearing representative properly determined that OWCP
erroneously characterized Dr. Espinosa as an impartial medical examiner. OWCP determined
that a conflict existed between Dr. DeFilippo and Dr. Storper. However, both Dr. DeFilippo and
Dr. Storper were physicians retained by OWCP for the purpose of conducting a second opinion.
The Board has held that a conflict in medical evidence is created between the medical opinion of
an employee’s physician and the medical opinion of either a second opinion physician or an
OWCP medical adviser, not between two OWCP physicians.8 Since this conflict was created
between two physicians who conducted second opinions for OWCP, Dr. Espinosa cannot serve
as a referee physician. His opinion cannot be accorded the special weight accorded an impartial
examiner.9 Dr. Espinosa’s report can still be considered for its own intrinsic value.10
Dr. DeFilippo, in his November 9, 2012 report, noted that he did not believe that appellant’s
diagnosis of schizophrenia was caused by any events in his work. He noted that stressful
situations may bring on a psychotic episode; however, they do not cause the psychosis.
Dr. DeFilippo noted that schizophrenia is not causally related to any type of work injury, and
opined that appellant’s symptoms of paranoia and fearfulness are all related to his underlying
schizophrenia. Dr. Espinosa did not believe that appellant’s psychotic disorder was a
consequence of his employment injury. He specifically noted that appellant’s schizophrenia may
have been triggered by stress but was not caused by it. Dr. Espinosa noted that schizophrenia
may be precipitated by normal stress or may happen spontaneously. He noted that appellant was
having paranoid delusions and symptoms of psychosis that are very specific to schizophrenia.
Both Dr. DeFilippo and Dr. Espinosa are of the opinion that appellant still suffers from a
disabling case of schizophrenia. However, both physicians believe that this was not caused by
the accepted employment injury. The Board notes that appellant’s claim was not accepted for
schizophrenia. Rather, appellant’s claim was accepted for adjustment reaction, with mixed
emotional features. In order to terminate appellant’s compensation and medical benefits, the
physicians must opine that appellant no longer had residuals from the accepted condition of
adjustment reaction.11 Neither Dr. DeFilippo nor Dr. Espinosa addressed any opinion regarding
the accepted condition.
Furthermore, the Board finds that the opinions of Drs. DeFilippo and Espinosa are
inconsistent with the SOAF, and thus, insufficient to satisfy OWCP’s burden to terminate
compensation and medical benefits.12 As noted in the SOAF, OWCP accepted appellant’s claim
8

R.H., Docket No. 14-0737 (issued September 4, 2015).

9

See, e.g., Delphia Y. Jackson, 55 ECAB 373 (2004) (where the Board found that OWCP improperly found a
conflict under 5 U.S.C. § 8123 between two physicians, neither of whom was appellant’s physician; the physician
selected to resolve the assumed conflict was not considered an impartial medical specialist and his report was not
entitled to special weight).
10

See Cleopatra McDougal Saddler, 47 ECAB 480 (1996).

11

See J.W., Docket No. 14-250 (issued May 28, 2014).

12

B.G., Docket No. 11-1088 (issued November 3, 2011).

6

for adjustment reaction with mixed emotional features. Drs. DeFilippo and Espinosa do not
reference the accepted condition in their respective reports; however, they questioned whether
the diagnosis of schizophrenia was appropriate. They may not disregard the accepted facts of the
case. Therefore, the Board finds that the opinions of Drs. DeFilippo and Espinosa lack a proper
factual background and are not rationalized. OWCP bears the burden of proof to terminate
benefits, not appellant.13 Accordingly, the Board finds that the reports of Drs. DeFilippo and
Espinosa are insufficient to meet OWCP’s burden to terminate benefits.
Consequently, OWCP did not meet its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective November 22, 2013.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective November 22, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 21, 2014 is reversed.
Issued: September 23, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Ana, CA, Employer
__________________________________________

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)
)
)

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

Docket No. 12-171
Issued: July 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 7, 2011 appellant filed a timely appeal from a May 11, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration without a merit review. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision.
Because more than 180 days elapsed from September 30, 2010, the date of the most recent
OWCP merit decision, to the filing of this appeal, the Board lacks jurisdiction to review the
merits of the case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with her appeal request. The Board may not consider new evidence for
the first time on appeal. See 20 C.F.R. § 501.2(c); 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).

FACTUAL HISTORY
On July 11, 2006 appellant, then a 46-year-old letter carrier, filed a traumatic injury claim
alleging that, as she was getting mail out of the back of the vehicle on July 10, 2006, the vehicle
door came down on the top of her head. She claimed injuries to her head, neck and shoulder
areas. OWCP accepted the claim for head contusion and neck strain/sprain. Appellant received
medical treatment on July 11, 2006 and was released to modified work. On June 26, 2008 she
was declared permanent and stationary and at a baseline for her underlying condition with no
objective evidence that the July 10, 2006 work-related incident materially altered her underlying
degenerative disease process of the cervical spine.
On April 24 and 28, 2009 appellant filed a claim for compensation (Form CA-7) for
compensation beginning April 2, 2009 because no work was available. In a May 7, 2009 letter,
OWCP advised her of the deficiencies in her claim and requested additional evidence.
By decision dated September 10, 2009, OWCP denied the claimed recurrent disability for
work beginning April 2, 2009 and continuing on the grounds that the evidence did not establish
that the disability was causally related to the accepted July 10, 2006 injury.
In a June 25, 2010 letter, appellant requested reconsideration and submitted additional
evidence. By decision dated September 30, 2010, OWCP denied modification of the prior
decision. It found that appellant submitted insufficient medical evidence on causal relationship.
On February 10, 2011 appellant requested reconsideration. She submitted a photograph
of her vehicle with the back door up in the same manner as on the date of injury, a picture of her
swollen neck after the door hit her head and 19 pages of internet information from
“emedicinehealth” on neck strains and spinal stenosis. While appellant stated a November 18,
2010 medical report from Dr. Michael P. Acord was enclosed, this report was not received with
her February 10, 2011 request.
By decision dated May 11, 2011, OWCP denied appellant’s request for reconsideration
on the grounds that her request neither raised substantive legal arguments nor included new and
relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4 The Board has held that
3

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141 (2007).

4

Id. at § 10.608(b); K.H., 59 ECAB 495 (2008).

2

the submission of evidence or argument which does not address the particular issue involved
does not constitute a basis for reopening a case.5
ANALYSIS
On February 10, 2011 appellant requested reconsideration of the September 30, 2010
decision which denied her claim of recurrence of disability commencing April 2, 2009. Her
request for reconsideration neither alleged nor demonstrated that OWCP erroneously applied or
interpreted a specific point of law. Appellant did not advance a relevant legal argument not
previously considered by OWCP. She is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. The underlying issue is medical in nature. As noted, the November 18,
2010 medical report from Dr. Acord was not of record at the time of the May 11, 2011 decision.
The photographs of appellant’s neck allegedly taken after the injury occurred, 19 pages of
internet information on neck strains and spinal stenosis and the photograph of her vehicle are not
relevant to the medical issue of whether she sustained a recurrence of disability commencing
April 2, 2009. The submission of evidence that does not address the particular issue involved in
the case does not constitute a basis for reopening the claim.6
The evidence submitted by appellant did not show that OWCP erroneously applied or
interpreted a specific point of law; advance a relevant legal argument not previously considered
or constitute relevant and pertinent new evidence not previously considered by OWCP. As
appellant did not meet any of the necessary regulatory requirements, the Board finds that she is
not entitled to further merit review.7
On appeal, appellant described how the work-related injury completely changed her life.
The Board does not have jurisdiction over the merits of this case. Appellant’s argument on
appeal does not show that she met one of the three regulatory criteria for reopening her claim for
a merit review, which is the only issue the Board may consider on this appeal. For the reasons
noted above, the Board finds that the evidence submitted in support of her request for
reconsideration is insufficient to warrant further merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

5
6

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
See D. Wayne Avila, 57 ECAB 642 (2006).

7

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

3

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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)

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

Docket No. 13-645
Issued: July 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 28, 2013 appellant filed a timely appeal from the January 2, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which determined his loss
of wage-earning capacity. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant had the capacity to earn
wages in the selected position of telephone solicitor.
FACTUAL HISTORY
Appellant, born April 10, 1949, was employed as a city letter carrier. He had three work
injuries that have been combined and managed under one active claim number. On May 1, 1989
appellant sustained a traumatic injury in the performance of duty when he slipped in mud while
1

5 U.S.C. § 8101 et seq.

delivering mail. OWCP accepted his claim for left knee sprain, lumbosacral strain and
depression. It authorized psychotherapy. On July 20, 1990 appellant received a schedule award
for an 18 percent impairment of his left lower extremity. On March 14, 1996 OWCP found that
he was entitled to an additional schedule award of 7 percent, for a total impairment of 25 percent.
On August 19, 1998 the Board affirmed.2
Appellant filed an occupational disease claim for an injury on or before
November 9, 1992. OWCP accepted this claim for depressive disorder. On April 7, 1994
appellant, now a modified carrier, sustained a traumatic injury in the performance of duty when
he fell over backward in his chair. It accepted his claim for right shoulder contusion, lumbar
strain and right rotator cuff tear.3 OWCP authorized arthroscopic right shoulder surgery.
On May 9, 1995 OWCP found that appellant’s employment four hours a day as a limitedduty letter carrier with wages of $324.20 per week effective August 21, 1994 fairly and
reasonably represented his wage-earning capacity.
On April 16, 1998 appellant was placed on administrative leave for four hours a day
while receiving compensation for four hours a day. He claimed compensation for total disability.
OWCP denied his claim on May 17, 1999 because he failed to establish a recurrence of total
disability.
On June 29, 1999 OWCP denied appellant’s request for reconsideration because the
evidence submitted was considered repetitious and insufficient to warrant a merit review of the
prior decision.
On May 3, 2001 the Board found conflicts in the various medical opinions and remanded
the case for further development.4 OWCP referred appellant to Dr. Arthur L. Sarris, a Boardcertified orthopedic surgeon, and Dr. Cherye Callegan, a Board-certified psychologist, to resolve
the conflicts. Dr. Sarris determined that appellant had not sustained a recurrence of total
disability in 1998. He found that appellant could work eight hours a day and could return to his
modified job. Dr. Callegan found that appellant had not sustained a recurrence of disability in
1998. She found that his condition was no worse in 1998 than it was in 1992.
On October 4, 2001 OWCP denied appellant’s claim that he sustained a recurrence of
total disability in 1998.
On April 28, 2003 OWCP found that appellant’s employment as a modified city carrier
with wages of $423.48 per week effective January 6, 2003 fairly and reasonably represented his
wage-earning capacity. An OWCP hearing representative reversed, however, finding that
OWCP improperly modified its previous loss of wage-earning capacity decision of May 9, 1995.
There was no evidence that appellant had been retrained or otherwise vocationally rehabilitated
following his original injury. There was no indication that the May 9, 1995 determination was
2

Docket No. 96-1388 (issued August 19, 1998).

3

It appears OWCP later expanded its acceptance to include headache.

4

Docket No. 99-2241 (issued May 3, 2001).

2

erroneous. OWCP had not demonstrated a change in the nature and extent of appellant’s injuryrelated condition. The hearing representative explained that the fact that the employing
establishment made a new job offer and brought him back to work after removing him from his
position in April 1998 was not sufficient, by itself, to modify the previous determination.
On June 2, 2010 the employing establishment notified appellant that there was no work
available for him within the operational needs of the service. The employing establishment
placed him on administrative leave effective immediately.
Appellant filed claims for wage-loss compensation beginning September 14, 2010.
Having received written confirmation that no work was available, OWCP paid him
compensation for temporary total disability on the periodic rolls.5
On October 18, 2010 Dr. James D. Cable, the attending specialist in occupational
medicine, completed a duty status report outlining appellant’s work restrictions. He advised that
it would be necessary for appellant to take time off work due to stress, weather and pain and
intermittently as needed to take medications. Dr. Cable added that it would be necessary for
appellant to change positions frequently. He stated: “[Appellant] cannot maintain sitting,
walking or standing for the full four hours and will need to change from sitting, to walking, to
standing frequently according to pain, in order of [10] to [30] minutes.” Further, Dr. Cable
restricted appellant to working from 6:00 a.m. to 10:00 a.m. only, with a 15-minute break every
hour, which should not be changed. He explained that appellant had been doing the same job for
several years and attempts to change or modify this position had resulted in stress and physical
harm. “I strongly recommend that he be left in his current position!”
In January 2011, OWCP referred appellant to a rehabilitation counselor for development
of a vocational rehabilitation program to assist him in returning to work. On March 7, 2011 the
rehabilitation counselor recommended that appellant be given “medically not feasible status.”
He noted that appellant had been working modified duty four hours a day for several years.
Dr. Cable had limited all activities to a four-hour workday, including zero hours for “simple
grasping,” which significantly eroded the occupational base. Based on Dr. Cable’s work
restrictions, the rehabilitation counselor found that appellant’s physical functioning “would fall
below the sedentary level, which most if not all employers would not be able to accommodate
and which would not be feasible for vocational rehabilitation services.”
On April 18, 2011 Dr. Cable clarified that appellant could do simple grasping
occasionally or intermittently. He explained that, when he indicated zero hours simple grasping,
he did not mean that appellant could not even pick up a pen. Dr. Cable just did not want
appellant to do constant grasping.
The rehabilitation counselor identified occupations that were within appellant’s revised
physical capabilities, including the position of telephone solicitor. The position of telephone
solicitor was sedentary and required only occasional reaching and handling and frequent
fingering. He found that there were a sufficient number of job openings for this occupation in
5

On September 15, 2010 OWCP changed appellant’s compensation rate from three-fourths to two-thirds
effective August 6, 2006. On February 15, 2011 an OWCP hearing representative affirmed.

3

the Dallas-Fort Worth area so as to make it reasonably available to appellant within his
commuting area. The rehabilitation counselor also found that the position paid $378.00 per
week, according to the Texas Workforce Commission and a labor market survey. Based upon
the medically determinable residuals of appellant’s injuries and taking into consideration all
significant preexisting impairments and pertinent nonmedical factors, the rehabilitation counselor
concluded that appellant was able to perform the selected job of telephone solicitor.
On May 23, 2011 Dr. Cable reviewed the position description and physical requirements
for the selected position of telephone solicitor and confirmed that appellant was capable of
performing the required duties.6
Effective June 14, 2011, appellant’s rehabilitation status changed to “placement with new
employers.” The rehabilitation specialist instructed the rehabilitation counselor to provide 90
days of job placement assistance. OWCP notified appellant that, at the end of this 90-day period,
FECA required that his compensation be reduced based on a wage-earning capacity of $378.00,
even if he were unemployed at the time.
On June 21, 2011 Dr. Cable addressed the job description he had approved:
“What was not clear from that, what [was] not apparent to them is that [appellant]
has been working [four] hours a day since 1994. His restrictions were for a total
workday of [four] hours a day and he has been doing that for a longtime.
Nowhere on the [Form] CA-17 does it [explicitly] say that nor did this job
description say that [explicitly]. This is to clarify my previous letter and the CA17 [form] that he is limited to [four] hours a day and has been doing that for a
longtime.”
In the meantime, Dr. Cable noted, appellant had been having increased neck and left arm
pain. He stated that appellant had at least two- or three-level disease in his neck.
The rehabilitation counselor searched the availability of part-time work for the selected
position of telephone solicitor and found that, although the number of jobs was naturally
reduced, there were a sufficient number of openings. Part-time wages for the position of
telephone solicitor/telemarketer averaged $220.00 per week.
At the end of the 90-day period for placement, appellant was not able to secure a job. His
rehabilitation file was closed. The rehabilitation counselor updated the average weekly wage for
a part-time telephone solicitor to $185.00.
On July 11, 2011 Dr. Cable advised that a magnetic resonance imaging scan of
appellant’s cervical spine showed multiple level disease: a three-millimeter (mm) protrusion at
C3-4, more on the left; spurring at C4-5, more severely on the left; a three- to four-mm left
paracentral protrusion at C5-6 causing severe left neural foraminal stenosis; and a two-mm bulge

6

OWCP informed Dr. Cable to please notify if he determined that additional work hardening programs, physical
therapy or psychological/psychiatric testing was needed.

4

on the right at C6-7.
symptomatology.”

“The 5-6 is probably the biggest problem in view of his current

Appellant retired effective October 31, 2011.
On June 19, 2012 OWCP proposed to reduce appellant’s compensation for wage loss
because the medical and factual evidence established that he was not totally disabled for work
but was partially disabled. It found that he had the capacity to earn wages as a telephone
solicitor at the rate of $185.00 per week working 4 hours a day.
On March 25, 2012 Dr. Tom G. Mayer, a Board-certified orthopedic surgeon, performed
a periodic medical review. He diagnosed chronic right shoulder pain, chronic left knee pain and
chronic low back pain. Dr. Mayer indicated that effects of appellant’s 1994 injury had not
ceased; appellant continued to have chronic low back pain and chronic depression related to his
injury. “These are keeping [appellant] from working at this point.” Dr. Mayer stated that the
work injury had been limiting his activity and limiting his ability to return to work. He stated
that appellant was currently not working related to his injury.
On August 8, 2012 OWCP reduced appellant’s compensation for wage loss under
5 U.S.C. §§ 8106 and 8115 effective July 29, 2012. It found that he was capable of performing
the duties of a telephone solicitor and therefore had a wage-earning capacity of 18 percent.
In September and December 2012, Dr. Howard M. Cohen, the attending Board-certified
psychiatrist with a subspecialty in pain management, related that appellant’s mood was euthymic
and that he was stable on medication.
Appellant’s main concern was that OWCP did not consider his restrictions in making its
decision to reduce his compensation. He also wanted to know why his neck condition was not
being included as an accepted injury. Appellant requested a telephonic hearing, which was held
on October 23, 2012.
In a January 2, 2013 decision, an OWCP hearing representative affirmed the reduction of
appellant’s wage-loss compensation. The hearing representative found no medical evidence to
support appellant’s contention that his neck condition prevented him from performing the
selected position. Going further, he found that the Dr. Cable’s review of the early medical
evidence was insufficient to establish that the April 7, 1994 work injury caused appellant’s
current neck condition.
Appellant argues that his neck condition is causally related to the April 7, 1994 work
injury. He argues that OWCP did not base the reduction of his compensation on his restrictions.
Further, appellant argues that OWCP did not take into account his mental health.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.7 “Disability” means the incapacity,
7

5 U.S.C. § 8102(a).

5

because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.8
Section 8115(a) of FECA provides that in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his or her actual earnings,
if his or her actual earnings fairly and reasonably represent his or her wage-earning capacity. If
the actual earnings of the employee do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity as
appears reasonable under the circumstances is determined with due regard to the nature of his or
her injury, the degree of physical impairment, his or her usual employment, his or her age, his or
her qualifications for other employment, the availability of suitable employment and other
factors or circumstances which may affect his or her wage-earning capacity in his or her disabled
condition.9
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.10 When it makes a medical determination of partial
disability and of the specific work restrictions, it may refer the employee’s case to an OWCP
wage-earning capacity specialist for selection of a position, listed in the Department of Labor’s
Dictionary of Occupational Titles or otherwise available in the open labor market, that fits the
employee’s capabilities in light of his or her physical limitations, education, age and prior
experience. Once this selection is made, a determination of wage rate and availability in the
open labor market should be made through contact with the state employment service or other
applicable service. Finally, application of the principles set forth in Albert C. Shadrick will
provide the percentage of the employee’s loss of wage-earning capacity.11
ANALYSIS
Following his employment injuries, appellant worked part time for many years. He
thereby demonstrated that he was not totally disabled for work. Indeed, it appears that the only
reason appellant stopped work, first in 1998 and again in 2010, was that the employing
establishment placed him on administrative leave. He did not stop work because he was no
longer physically or mentally capable of working. These were administrative decisions. The
presumption remained that appellant could have and would have continued to work part time in
his modified position if the employing establishment would have allowed him.
OWCP began paying appellant compensation for total disability in 2010 because the
employing establishment determined that there was no productive work available for him. This
did not mean that appellant was no longer capable of working part time. Indeed, Dr. Cable, the

8

20 C.F.R. § 10.5(f).

9

5 U.S.C. § 8115(a)

10

Harold S. McGough, 36 ECAB 332 (1984).

11

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953) (Shadrick formula codified
at 20 C.F.R. § 10.403).

6

attending specialist in occupational medicine, completed a duty status report in 2010 outlining
appellant’s work restrictions and recommending that he be left in his current position.
The work restrictions outlined by Dr. Cable stand as the best representation of appellant’s
work capabilities. Having received medical confirmation that appellant was not, in fact, totally
disabled for work but was capable of working with certain restrictions, OWCP properly referred
him to a wage-earning capacity specialist for placement with a new employer or failing that, the
selection of a position available in the open labor market that fit his capabilities.
The rehabilitation counselor identified occupations that were within appellant’s revised
physical capabilities, including the position of telephone solicitor. This was a sedentary position
that required very little physical activity. This was also a position that was reasonably available
to appellant because it was performed in sufficient numbers within his commuting area.
OWCP provided Dr. Cable with the position description and physical requirements for
the selected position of telephone solicitor and on May 23, 2011 he confirmed that appellant was
capable of performing the required duties. It invited him to please notify if he thought additional
work hardening, physical therapy or psychological/psychiatric testing was needed, but he
declined. Dr. Cable did emphasize that appellant was restricted to working only four hours a
day, something that was not clear from the position description OWCP had given him.
With this in mind, the rehabilitation counselor researched the availability of part-time
work for the selected position of telephone solicitor and found that there were still a sufficient
number of openings to make part-time work reasonably available to appellant. Through contact
with the Texas Workforce Commission and a labor market survey, the rehabilitation counselor
ultimately determined that the average weekly wage for a part-time telephone solicitor was
$185.00.
The Board finds that OWCP followed standard procedures for determining appellant’s
wage-earning capacity and properly reduced his wage-loss compensation to reflect his capacity
to earn wages part time in the selected position of telephone solicitor. Dr. Cable had followed
appellant for many years and was as knowledgeable as any physician on appellant’s capacity to
work. He made clear that appellant was capable of performing the duties of the selected position
part time.
There is no probative medical evidence to the contrary. Dr. Cohen, the attending Boardcertified psychiatrist, was reporting that appellant’s mood was euthymic and that he was stable
on medication. He did not suggest that the accepted depression, which had not prevented
appellant from working part time for many years, now prevented him from working part time in
the selected position. Dr. Mayer, a Board-certified orthopedic surgeon, advised that appellant’s
chronic low back pain and chronic depression were keeping him from working, but he did not
explain,12 did not directly address the selected position of telephone solicitor and did not reply to
the clearance given by Dr. Cable, who directly addressed the selected position. Also, it was not

12

Medical conclusions unsupported by rationale are of little probative value. Ceferino L. Gonzales, 32 ECAB
1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

7

clear whether Dr. Mayer was expressing his professional opinion on appellant’s work capacity or
simply relating what appellant had advised.
The Board finds that the weight of the medical opinion evidence rests with Dr. Cable and
establishes that appellant is capable of working part time as a telephone solicitor. Accordingly,
the Board will affirm OWCP’s January 2, 2013 decision on the issue of appellant’s loss of wageearning capacity.
Appellant may request modification of OWCP’s August 8, 2012 loss of wage-earning
capacity determination, supported by new evidence or argument, at any time before OWCP.
The issue properly before the Board on this appeal is whether appellant has the capacity
to earn some wages as a telephone solicitor, such that he should receive compensation for partial
disability instead of total disability. That was the issue OWCP decided in its August 8, 2012
decision to reduce his compensation for wage loss under 5 U.S.C. §§ 8106 and 8115. That was
the issue properly before an OWCP hearing representative when appellant requested a hearing.
When appellant pursued his hearing, he raised a separate issue. Appellant asked why OWCP had
not included his neck condition among the accepted injuries in his case. OWCP did not rule on
this issue in its August 8, 2012 loss of wage-earning capacity determination.
If appellant claims that, the April 7, 1994 work injury caused a neck injury, he should
pursue the issue with OWCP, which can then issue a final decision with full appeal rights.
Ruling on such an issue for the first time at the hearing level denies appellant an initial decision
by OWCP and deprives him of the right to a hearing should he disagree with that ruling.13
Although appellant argues that OWCP did not base the reduction of his compensation on
his restrictions, the record shows that the rehabilitation counselor identified the selected position
from the restrictions imposed by Dr. Cable. To remove any doubt, OWCP provided Dr. Cable
with the position description and physical requirements of the selected position so he could
examine the same and advise whether appellant was capable of performing that job. Dr. Cable
answered in the affirmative, so long as appellant worked no more than four hours a day. OWCP
thus based its reduction of compensation on appellant’s restrictions. Appellant may argue that
Dr. Cable previously restricted him to working in the early morning, but it was Dr. Cable who
later cleared appellant to perform the selected position and he did so without restricting appellant
to early morning hours.
Appellant argues that OWCP did not take into account his mental health, but that is not
quite right. While it is true that OWCP did not provide Dr. Cohen with the position description
of the selected position, the attending psychiatrist gave every indication that appellant’s accepted
depression was well controlled with medication and that his mood was normal and reasonably
positive. Appellant was not reporting any work restriction due to the accepted depression.
Further, although the matter was strictly outside his expertise, Dr. Cable expressed no concern
that appellant’s mental health might possibly present an issue with the selected position.

13

Note that the appeal rights attached to the hearing representative’s January 2, 2013 decision do not provide
appellant the right to request a hearing.

8

CONCLUSION
The Board finds that OWCP properly determined that appellant had the capacity to earn
wages in the selected position of telephone solicitor.
ORDER
IT IS HEREBY ORDERED THAT the January 2, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9