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

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

Docket No. 09-359
Issued: September 8, 2009

Case Submitted on the Record

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

JURISDICTION
On November 19, 2008 appellant timely filed an appeal from a November 4, 2008 merit
decision of the Office of Workers’ Compensation Programs that terminated her compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of her claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2) on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On February 25, 2005 appellant, a 54-year-old clerk, filed a traumatic injury claim
(Form CA-1) for a back injury. She attributed her injury to picking up trays. By decision dated
June 20, 2005, the Office accepted appellant’s claim for lumbosacral sprain/strain.
In a work capacity evaluation dated June 16, 2006, Dr. James Lee, a Board-certified
surgeon, noted appellant’s lumbosacral sprain was an accepted condition and that due to this

condition she could only work four hours per day. He specified work restrictions limiting the
amount of sitting to four hours per day. Dr. Lee also noted, in a hand-written note, that the
offered modified position was suitable.
In a July 20, 2006 medical note, Dr. Lee reported that appellant had been out of work for
over a year and that she continued to experience pain in her lower back.
In an October 10, 2006 note, Dr. Lee reported that the MRI scan of appellant’s back
revealed that she had L4-5, L5-S1 moderate, bilateral neuroforaminal stenosis. He noted that
appellant also had L5-S1 degenerative changes. Dr. Lee opined that appellant was completely
and totally disabled.
The Office referred appellant, together with a statement of accepted facts and a list of
issues to Dr. Iqbal Ahmad, a Board-certified orthopedic surgeon, for another second opinion
evaluation.
On April 4, 2007 the employing establishment offered appellant a modified-duty position
as a mail processing clerk. The work hours of the modified position were 4:00 pm to 12:50 am.
The position required appellant for intermittent periods during an eight-hour day, to perform
letter and flat mail distribution, wall and verify box mail, process SPR’s and packages, pouch
rack distribution and wand and process accountable-mail and service window customers. The
position included restrictions including those pertaining to standing, lifting and other activities.
The position required lifting of no more than 15 pounds for one hour per day. Sitting was
restricted to four hours per day. Standing and walking were restricted to two hours per day.
By letter dated May 2, 2007, the Office notified appellant that the offered position was
suitable and in accordance with her medical limitations as provided by Dr. Ahmad. It noted that
appellant had 30 days from the date of this decision to accept the offered position or provide an
explanation of the reasons for refusing it. The Office advised appellant that if she failed to
accept the offered position and failed to demonstrate that the failure to accept was justified, her
compensation would be terminated.
On May 21, 2007 Dr. Lee reported that based on appellant’s subjective complaints, his
examination of her, as well as x-rays and an MRI scan, she was unable to perform the work
duties she has historically performed. He opined that appellant was completely and totally
disabled and would not be able to return to the job market. Dr. Lee also noted that appellant was
considering retirement. In a work capacity evaluation dated May 22, 2007, he reported that
appellant was not able to perform her usual job.
The Office, finding a conflict of medical opinion had arisen between Drs. Lee and
Ahmad, referred her, together with an amended statement of accepted facts and a list of
questions to Dr. Howard Baruch, Board-certified orthopedic surgeon, for an independent medical
examination.
In a July 11, 2007 report, Dr. Baruch diagnosed appellant with low back pain. He noted
that based on his physical examination maximum medical improvement had not been reached.
Dr. Baruch opined that based on appellant’s subjective complaints, she could only tolerate a

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light-sedentary job. He reported that appellant was mildly disabled and that her injury was
causally related to the dated accident based upon the history he was provided.
By letter dated September 11, 2007, the Office requested Dr. Baruch issue a supplemental
clarifying report containing a definite diagnosis and a work capacity evaluation that included any
work restrictions he deemed appropriate. On November 8, 2007 it received a work capacity
evaluation completed by Dr. Baruch wherein he opined that appellant could work light duty for
eight hours per day with restrictions. Dr. Baruch restricted work activities involving sitting to
six hours per day. Activities involving walking were restricted to a maximum of one hour per
day while activities involving standing were limited to one hour per day.
Appellant submitted several notes signed by Dr. Lee concerning appointments occurring
between February and April 2008. In these notes, Dr. Lee reported that she sustained a chronic
lumbosacral sprain and was unable to return to work. He also diagnosed ambulatory dysfunction
post right total knee arthroplasty.
In a June 7, 2008 work capacity evaluation, Dr. Lee reported that appellant was unable to
perform her normal work duties and could not work. He asserted that appellant was completely
and totally disabled.
On July 1, 2008 Dr. Lee diagnosed chronic lumbosacral sprain with myofascitis.
By letter dated July 3, 2008, the employing establishment offered appellant a modified
limited-duty assignment as a mail processing clerk. The duties performed under the terms of the
modified position included: flat case distribution, gathering of flats to be pitched and place on
ledge, pitch flats to hold-outs on cases and sweep full hold-outs, place in tubs, label and dispatch.
The modified position was provided with restrictions under which appellant was not required to
lift more than 10 pounds or reach over her shoulder. The offer limited sitting to six hours per
day, walking to two hours per day and standing to one hour per day.
By letter dated July 18, 2008, the Office notified the employing establishment that it had
reviewed the position. It noted that the offer was unclear concerning whether appellant would be
sitting or standing with each of her given duties. The Office also noted that the referee examiner
indicated that appellant should be sitting a maximum of six hours a day and standing for only
one. It also found that the offer was unclear how heavy the bundles of flats are that appellant
would be required to pitch and place on ledges. The Office requested that the employing
establishment submit a letter clarifying the duties with the restrictions or revise the offer and
notify it for suitability prior to sending it to appellant.
On July 18, 2008 Dr. Lee opined that appellant was still totally disabled. Appellant’s
disability aside, he recommended that she attempt to return to work, despite her back pain and
ambulatory dysfunction. Dr. Lee opined that there was nothing to gain from her not trying to
make an effort to see if she could work. He hoped that appellant would be able to perform
limited-duty work.
By letter dated September 12, 2008, the employing establishment responding to the
Office’s July 18, 2008 letter, reported that the offered position had been slightly modified to
include weight limits as it requested. The newly modified light-duty position provided that the
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duties with respect to the flats and hold-outs would require lifting no more than 10 pounds. The
employing establishment noted that it had seen a major decrease in mail volume due to
automation and computer technology and, therefore, the 10-pound limitation was quite
reasonable and not hard to accommodate. It requested that the Office review the offer for its
suitability before it was sent to appellant.
In a September 17, 2008 letter, the Office notified appellant that it had been informed that
the employing establishment had made her a job offer consistent with the physical limitations
imposed by her injury. It noted that it had reviewed the offered position, compared it with the
medical evidence concerning appellant’s ability to work and found the offered position to be
suitable. The Office noted that appellant had 30 days from the date of this decision to accept the
offered position or provide an explanation of the reasons for refusing it. It also reported that if
appellant refused employment or failed to report to work when scheduled, without reasonable
cause, her compensation benefits would be terminated, but she would retain her entitlement to
medical care. The Office also noted that, if appellant refused the position and elected retirement
benefits to which she might be entitled, she should notify the employing establishment to
ascertain her eligibility.
On September 19, 2008 appellant rejected the offered position. She asserted that
Dr. Baruch stated she could only work part time and, therefore, questioned why the Office did
not give her the right hours.
In a note dated September 25, 2008, Dr. Lee reported that appellant had marked pain in
her back that radiated into her lower extremities. He noted that there was no history of
improvement and that appellant had fallen a few times. Dr. Lee reported that appellant could not
really sit for any length of time due to her back and hips and experienced discomfort when trying
to bend and load due to paravertebral muscle spasms. He opined that, given appellant’s current
symptoms, she was not able to return to work for any type of gainful employment.
On October 18, 2008 appellant asserted that she was not capable of performing the
offered position. She stated that she had worked the flat cases before and opined that it was not
light-duty work and that, if she accepted the position she would be fired because there are days
when she is unable to leave her apartment and, therefore, her attendance will be an issue.
Appellant also stated that to manage her pain, she takes medication that would render her unfit
for duty.
The Office, by letter dated October 17, 2008, notified appellant that the Office’s referee
physician opined that she could work eight hours each tour and that this opinion held the weight
of medical evidence concerning her ability to work. It noted that the position had already been
reviewed, found to be suitable and within the restrictions identified by the medical evidence of
record. The Office also noted that it had reviewed the evidence appellant submitted and found it
insufficient to change its determination. It advised appellant that it would not consider any
further reasons justifying her refusal of the offered position. Finally, the Office notified
appellant that if she refused the position or failed to report to work when scheduled, her benefits
would be terminated within 15 days.

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Appellant submitted no additional evidence and did not accept the offered position. By
decision dated October 4, 2008, the Office terminated compensation benefits and eligibility for
future compensation benefits because she refused to accept suitable employment.1
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work, or refuses or neglects to work after
suitable work is offered to, procured by, or secured for him is not entitled to compensation.2 The
Office has authority under this section to terminate compensation for any partially disabled
employee who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work, and has the
burden of establishing that a position has been offered within the employee’s work restrictions,
setting forth the specific job requirements of the position.3 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.4
With respect to the procedural requirements of termination under 5 U.S.C. § 8106(c), the
Board has held that the Office must inform appellant of the consequences of refusal to accept
suitable work, and allow appellant an opportunity to provide reasons for refusing the offered
position.5 If appellant presents reasons for refusing the offered position, the Office must inform
the employee if it finds the reasons inadequate to justify the refusal of the offered position and
afford appellant a final opportunity to accept the position.6
Office regulations state that the Office shall advise the employee that it has found the
offered work to be suitable and afford the employee 30 days to accept the job or present any
reasons to counter the Office’s finding of suitability. If the employee presents such reasons, and
the Office determines that the reasons are unacceptable, it will notify the employee of that
determination and that he or she has 15 days in which to accept the offered work without penalty.

1

The record reflects appellant submitted additional evidence on appeal. The Board may not consider evidence
for the first time on appeal which was not before the Office at the time it issued the final decision in the case. 20
C.F.R. § 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s
jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final decision.) As this
evidence was not part of the record when the Office issued either of its previous decisions, the Board may not
consider it for the first time as part of appellant’s appeal
2

5 U.S.C. § 8106(c)(2).

3

M.L., 57 ECAB 746, 750 (2006); Frank J. Sell, Jr., 34 ECAB 547, 552 (1983).

4

M.L., supra note 3; Albert Pineiro, 51 ECAB 310, 312 (2000).

5

Alfred Gomez, 53 ECAB 149, 150 (2001); see Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43
ECAB 818, 824 (1992).
6

Id.

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At that point in time, the Office’s notification need not state the reasons for finding that the
employee’s reasons are not acceptable.7
Once the Office advises a claimant that his or her reasons for refusing an offered position
are unacceptable and that he or she has 15 days to accept the position or have compensation
terminated, the claimant submits further reasons and supporting evidence at his or her own risk.
Nevertheless, the Office must consider the reasons and evidence and can then concurrently reject
them as unacceptable and terminate compensation.8
ANALYSIS
The Board finds that the Office met its burden of proof to terminate compensation for
appellant’s refusal to accept suitable employment. The evidence of record establishes that the
position offered was medically and vocationally suitable and it complied with the procedural
requirements of 5 U.S.C. § 8106(c).
In developing the medical evidence, the Office properly determined that a conflict in
medical opinion arose as to appellant’s ability to work. Dr. Ahmad, the Office’s second opinion
physician, and Dr. Lee, appellant’s attending physician, disagreed concerning her capacity for
work.9
To resolve this conflict, the Office referred appellant to Dr. Baruch for an independent
medical examination. Dr. Baruch reported that appellant was only mildly disabled and
diagnosed her with low back pain. He opined that based on appellant’s subjective complaints,
she could only tolerate a light-sedentary job. Dr. Baruch opined that appellant could perform a
full eight-hour light-duty tour with restrictions, no lifting greater than 10 pounds and limitations
on the amount of time she spent sitting, maximum of six hours per day, standing, maximum of
one hour per day and walking, maximum of two hours per day. The Board finds that his opinion,
as the impartial medical specialist, is well rationalized and based on a proper factual and medical
background and therefore his opinion is entitled to special weight.10
The employing establishment relying on Dr. Baruch’s opinion offered appellant a
modified position as a modified mail clerk. The modified position was consistent with the
medical restrictions established by Dr. Baruch.
The Office properly found that the modified mail clerk position was suitable.
Once the Office has established that a particular position is suitable, an employee who
refuses or neglects to work after suitable work has been offered has the burden of showing that
such refusal to work was justified. The Board has carefully reviewed the evidence and
7

20 C.F.R. § 10.516.

8

Melvin James, 55 ECAB 406, 409 (2004); C.W. Hopkins, 47 ECAB 725, 727-28 (1996).

9

See Geraldine Foster, 54 ECAB 435 (2003).

10

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

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arguments submitted by appellant in support of her refusal of the modified position and notes
that they are not sufficient to justify her refusal of the position.
Appellant argued that she is not physically capable of performing the job and that her
returning to work would be pointless because unable to perform the light-duty position, she
would be fired. She also asserted that people on light duty at the employing establishment are
eventually told that there is not enough mail to keep them and are fired. But the issue of whether
appellant is able to perform the offered position is a medical one and must be resolved by
probative medical evidence.11 The Board notes that there is no medical evidence in the record
that can overcome the weight of the independent medical adviser.
Further, the Office properly advised appellant that her reasons for refusing the position
were not suffiecient and gave her 15 days to accept the position. As appellant failed to accept
the position, the Board finds that it properly terminated her compensation benefits effective
November 4, 2008.12
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
November 4, 2008 on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT November 4, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
11

Kathy E. Murray, 55 ECAB 288, 290 (2004).

12

Supra note 8.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, PORTLAND
PERFORMANCE CLUSTER, Portland, OR,
Employer
__________________________________________

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

Docket No. 13-962
Issued: September 25, 2013

Case Submitted on the Record

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

JURISDICTION
On March 11, 2013 appellant filed a timely appeal from the September 12, 2012 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 medical benefits.
FACTUAL HISTORY
On August 1, 2005 appellant, then a 49-year-old human resources specialist, filed a
traumatic injury claim alleging that on July 27, 2005 she injured her right knee and hands when

1

5 U.S.C. § 8101 et seq.

she tripped and fell over a curb. OWCP accepted her claim for contusion of the right knee and
contusion of the right hand and paid appropriate benefits. Appellant retired in October 2006.
On August 3, 2009 OWCP issued a notice of proposed termination finding that appellant
no longer had residuals of the accepted work injury requiring medical treatment. Appellant did
not submit any additional evidence or argument within the allotted 30 days. By decision dated
September 3, 2009, OWCP terminated authorization for medical benefits.
Appellant requested reconsideration and submitted additional evidence.
Dr. Anne M. Hirsch, a Board-certified internist, opined in a June 17, 2010 report that
appellant’s ongoing persistent right hand symptoms were directly related to the July 27, 2005
work injury. She noted the history of injury, relating that appellant sustained a significant
abrasion with some gravel tattooing of the palmar thenar eminence of her right hand. Dr. Hirsh
also related a history of medical treatment of appellant’s right hand, including an April 14, 2010
surgery for right trigger thumb and stated that nothing has relieved her ongoing pain, atrophy or
tendency for her hand to curl unnaturally.
In an August 18, 2010 report, Dr. McPherson S. Beal, III, appellant’s treating physician,
a Board-certified hand surgeon, related that his physical examination of appellant revealed
unchanged fascial thickening of the right thenar eminence without any evidence of significant
dysfunction on examination and with no pathological lesions which would be expected to cause
the degree of pain or disability of which appellant complained. He related: “ I asked her why
she has continued to return to me for evaluation despite the fact that I presented her with the
same opinion at each of [her] multiple prior visits. [Appellant’s] immediate response was that
this was an on-the-job injury and she expects monetary compensation for it, and that I was her
original treating physician and that each of the multiple doctors whom she has had examine her
hand have advised her to return to me for any additional treatment.” Dr. Beal concluded that he
saw no further role for physical therapy, that she was a poor candidate for surgical intervention
and that she did not have any objective lesions which would justify any significant treatment and
that he could not provide anything further for her.
This case has previously been before the Board. In a December 20, 2011 decision, the
Board found that OWCP improperly denied appellant’s request for reconsideration of OWCP’s
September 3, 2009 merit decision terminating her medical benefits.2 The Board found that the
June 17, 2010 report of Dr. Hirsch was new and relevant evidence to the underlying issue of
whether appellant continued to suffer residuals of her accepted right hand contusion, requiring
further medical treatment. The Board set aside the October 3, 2010 OWCP decision and
remanded the case for an appropriate final decision on the merits. The facts of the case are set
forth in the Board’s prior decision and are incorporated herein by reference.
OWCP thereafter referred appellant for a second opinion examination with
Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon, for a determination of whether she
suffered from any residual effects of the accepted hand contusion requiring additional medical

2

Docket No. 11-1067 (issued December 20, 2011).

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treatment. The July 27, 2012 statement of accepted facts noted that on April 14, 2010 appellant
underwent right trigger thumb surgery not authorized by OWCP.
In an August 24, 2012 report, Dr. Curcin noted the history of injury, reviewed the
medical records provided and noted examination findings. During the examination, appellant
demonstrated self-restriction in the use of the right upper extremity and palpatory examination of
the hand was difficult and aborted due to hypersensitivity to even light touch. Dr. Curcin
diagnosed resolved right knee contusion and right hand contusion with thickening of the thenar
eminence as related to the claim. Regarding the latter diagnosis, he opined that appellant
continued to suffer symptomatic residuals of the work-related injury to her hand and the
prognosis was poor given the chronicity of her condition. Dr. Curcin concluded that she did not
require further medical treatment. He also filled out a work capacity evaluation stating that
appellant had no physical restrictions.
No additional evidence was received from appellant.
By decision dated September 12, 2012, OWCP denied modification of its prior decision.
It found that Dr. Curcin’s August 24, 2012 report represented the weight of the medical evidence
and established that appellant did not require further medical treatment.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 To terminate authorization for medical
treatment OWCP bears the burden to establish that appellant no longer has residuals of an
employment-related condition which require further medical treatment.4
ANALYSIS
The Board finds that OWCP met its burden of proof to establish that appellant no longer
required medical treatment for her accepted conditions.
At the time the Board last reviewed this record, it remanded the case to OWCP for merit
review, based upon Dr. Hirsch’s June 17, 2010 report. While Dr. Hirsch related that appellant
had persistent right hand symptoms related to the July 27, 2005 injury, she also related that
ongoing medical treatment had not relieved appellant’s ongoing pain, atrophy or tendency for her
hand to curl unnaturally. While Dr. Hirsch opined that appellant should be reimbursed for past
medical expense related to her injury, she did not state that she would in fact require further
medical care for her accepted right hand condition.
When the Board remanded the case to OWCP for merit review, the record also contained
the August 18, 2010 report from Dr. Beal, who related that, while he had been appellant’s
treating physician initially following her injury, he did not understand why appellant continued
3

Paul E. Stewart, 54 ECAB 824 (2003).

4

Kathryn E. Demarsh, 56 ECAB 677 (2005); Pamela K. Guesford, 53 ECAB 726 (2002).

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to return for medical evaluation. Dr. Beal related that physical therapy had not helped appellant,
that she was not a surgical candidate and that he could not provide anything further for her.
OWCP referred appellant to Dr. Curcin in July 2012. Dr. Curcin’s August 24, 2012
report further supports the termination of appellant’s medical benefits. He related following the
examination that her right knee contusion had resolved. The Board also finds that there is no
medical evidence of record that appellant has residuals of the right knee contusion, which would
require further medical treatment. Regarding appellant’s right hand condition, Dr. Curcin
explained that she had a right hand contusion with thickening of the thenar eminence and that she
continued to have symptoms related to this condition, but he also explained that she
self-restricted her right arm during examination, and that he had to abort palpatory examination
of the hand because of her hypersensitivity to even light touch. He concluded that appellant did
not require further medical treatment for her hand condition. The Board concludes that the
weight of the medical evidence establishes that she does not need further medical treatment for
her accepted conditions of right knee and right wrist contusion.
On appeal, appellant disagreed with OWCP’s decision. She asserted that she still suffers
from work-related injuries which should be covered under OWCP’s medical benefits as opposed
to her personal insurance plan. As noted, OWCP met its burden of proof to terminate appellant’s
medical benefits. Appellant also submitted additional evidence with her appeal. 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.5
Appellant may submit this or any new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits.

5

20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the September 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Duluth, GA, Employer
__________________________________________

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

Docket No. 13-489
Issued: July 9, 2013

Case Submitted on the Record

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

JURISDICTION
On December 18, 2012 appellant filed a timely appeal of a June 21, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs denying her reconsideration request.
Because over 180 days elapsed from the most recent merit decision dated March 29, 2012 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s case pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. On December 7, 2008 appellant, then
50-year-old clerk, injured her hand, knee and back when she tripped and fell in the performance
of duty. OWCP accepted her claim for right wrist sprain, contusion of the left knee and lumbar
1

5 U.S.C. § 8101 et seq.

sprain on June 17, 2009. By decision dated December 29, 2009, it denied appellant’s claim for
intermittent periods of disability from September 1 through October 13, 2009 finding that she
failed to submit supportive medical evidence. In an October 5, 2010 decision,2 the Board found
the medical evidence insufficient to establish that her current back condition and any resulting
period of disability was due to her accepted employment injury. The facts and circumstances of
the case as set out in the Board’s prior decision are incorporated herein by reference.
Following the Board’s decision, appellant submitted a report dated September 16, 2010
by Dr. Plas T. James, a Board-certified orthopedic surgeon, who noted that appellant sat in a
chair that was too low and developed severe back pain. Dr. James diagnosed L4-5 and L5-S1
grade 1 spondylolisthesis and degenerative disc disease with instability in the axial plane.
Appellant filed a claim for compensation requesting wage-loss compensation from December 3
through 16, 2010.
In a letter dated January 13, 2011, OWCP noted that specific hours of appellant’s limited
duty had been withdrawn effective December 3, 2012 due the National Reassessment Process
(NRP). It requested additional medical evidence in support of her claim.
Appellant filed a second claim for compensation for the period January 1 through
14, 2011.
In a decision dated February 14, 2011, OWCP denied appellant’s claim for compensation
for the period December 3 to 14, 2010. Appellant requested an oral hearing before an OWCP
hearing representative on February 28, 2011.
In a report dated January 28, 2011, Dr. Robert L. Howell, a Board-certified surgeon,
reviewed appellant’s history of a fall on July 12, 2008 and diagnosed hyperextension of her right
wrist. He noted that Dr. Stephen McCollam, a Board-certified orthopedic and hand surgeon,
diagnosed degenerative arthritis of the right wrist not related to the employment injury.
Dr. Howell stated that he now believed that appellant had degenerative arthritis, which was
asymptomatic and “It may have been the fall indeed exacerbated the problem and she remains
symptomatic after the exacerbation at this time.” He noted that appellant did not have a
traumatic rupture of the scapholunate ligament, but had developed a degenerative pattern of wrist
osteoarthritis.
Appellant filed claims for compensation for the periods January 29 through February 11,
2011 and February 12 through 23, 2011.
By decision dated March 18, 2011, OWCP denied appellant’s claim for compensation for
the period January 1 through 14, 2011.
Appellant filed a claim for compensation for the period February 26 through
March 11, 2011.
By decision dated April 14, 2011, OWCP denied appellant’s claim for compensation for
the period January 15 through February 25, 2011, as the medical evidence was not sufficient to
establish that her disability was due to her accepted December 7, 2008 employment injury.
2

Docket No. 10-800 (issued October 5, 2010).

2

Appellant testified at the oral hearing on June 10, 2011. Following the hearing, she
submitted a report dated June 17, 2011 from Dr. Obinwanne FC Ugwonali, a Board-certified
orthopedic surgeon, who addressed her right wrist pain. Dr. Ugwonali diagnosed chronic right
wrist arthritis, scapholunate ligament tear likely aggravated by appellant’s fall at work on
December 7, 2008.
In a note dated April 20, 2011, Dr. James stated that she had
spondylolisthesis and was able to work with restrictions of lifting up to 20 pounds. On
August 18, 2011 he repeated his diagnosis of L4-5 and L5-S1 grade 1 spondylolisthesis and
degenerative disc disease.
The hearing representative issued a decision on September 22, 2011 finding that
appellant had not established that she was entitled to compensation for the period December 3
through 14, 2010.
Appellant requested reconsideration on November 15, 2011 and submitted additional
medical evidence. On October 24, 2011 Dr. James stated that she attributed her back pain to her
December 7, 2008 fall. He noted appellant’s 20-pound lifting restriction and stated that while at
work she sat in a chair that was too low and developed increasing back pain. Dr. James noted
that she had not worked since December 1, 2010 due to her restrictions. He stated that
appellant’s back pain was aggravated by her fall on December 7, 2008, but that she had a
preexisting degenerative process. Dr. James again examined appellant on November 3, 2011 and
February 2, 2012.
In a report dated October 4, 2010, Dr. Howell noted appellant’s history of a fall and
landing on an outstretched hand. He diagnosed scapholunate ligament tear and stated that it was
extremely difficult to know whether the condition was caused by the December 7, 2008 fall.
Dr. Howell stated that the fall either caused or significantly exacerbated her scapholunate
ligament tear and was the cause of her current complaints. On May 10, 2011 he diagnosed
degenerative arthritis of the right and left wrists. Dr. Howell stated that appellant had a lifting
restriction of 10 pounds. He opined that her condition was not work related, but that she could
not lift up to 70 pounds.
Appellant underwent a functional capacity evaluation on December 16, 2011 which
indicated that she could perform sedentary work within acceptable validity test parameters. On
March 15, 2012 she requested reconsideration of the February 14, March 18 and April 14, 2011
decisions.
In March 29, 2012 decisions, OWCP reviewed the merits of appellant’s claim and denied
modification of the February 14, March 18 and April 14, 2011 decisions.
On March 29, 2012 appellant requested reconsideration of the March 29, 2012 decisions.
By letter dated April 6, 2012 entitled Appeal Decision, she disagreed with the handling of her
claims and referenced Dr. James’ April 20, 2011 report, Dr. Howell’s November 24, 2010 report
and test results. Appellant resubmitted Dr. Ugwonali’s June 17, 2011 report, Dr. James’
April 20, 2011 note and the December 16, 2011 functional capacity evaluation. She also
submitted a narrative statement.
By decisions dated April 20, 2012, OWCP declined to reopen appellant’s claim for
consideration of the merits of her claim for compensation for the period December 2 through 14,

3

2010 and January 1 through February 25, 2011. It found that she failed to submit any relevant
and pertinent new evidence.
On May 21, 2012 appellant requested reconsideration and asked that OWCP thoroughly
review her medical evidence. She submitted a report dated May 3, 2012 from Dr. James
diagnosing spondylolisthesis and degenerative disc disease.
By decision dated June 21, 2012, OWCP declined to reopen appellant’s claims for
reconsideration of the merits. It stated that Dr. James’ report was not new and relevant evidence
and that her narrative statements were not relevant.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b) of Title 20 of the Code of Federal Regulations provide that a claimant may
obtain review of the merits of the claim by submitting in writing an application for
reconsideration which sets forth arguments or evidence and shows that OWCP erroneously
applied or interpreted a specific point of law; or advances a relevant legal argument not
previously considered by OWCP; or includes relevant and pertinent new evidence not previously
considered by OWCP.4 Section 10.608 of OWCP’s regulations provide that, when a request for
reconsideration is timely, but does meet at least one of these three requirements, OWCP will
deny the application for review without reopening the case for a review on the merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.6
ANALYSIS
Appellant filed claims for compensation requesting wage-loss benefits beginning
December 3, 2010 due to her disability as a result of the 2008 employment injury and the NRP.
The last merit decisions in this case were issued on March 29, 2012 more than 180 days prior to
her appeal to the Board on December 18, 2012. The Board only has jurisdiction to review the
June 21, 2012 decision declining to reopen appellant’s for consideration of the merits.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3) requiring OWCP to reopen the case of review of the merits of her claim.
In her May 21, 2012 request for reconsideration, appellant did not identify or show that OWCP
3

5 U.S.C. §§ 8101-8193, 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

6

M.E., 58 ECAB 694 (2007).

4

erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument not previously considered by OWCP.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, not previously considered by OWCP, but appellant did not meet this requirement of 20
C.F.R. § 10.606(b)(3) as she submitted a report from Dr. James, which was duplicative of his
previous reports and did not provide any additional new evidence regarding her periods of
disability. As noted above, medical reports which are repetitive are not sufficient to require
OWCP to reopen her claim for further consideration of the merits.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that as appellant has not met any of the criteria to warrant further
consideration of the merits of her claim, OWCP properly declined to reopen her claim for
consideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.V., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Cheyenne, WY, Employer
__________________________________________

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

Docket No. 12-997
Issued: November 14, 2012

Case Submitted on the Record

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

JURISDICTION
On April 5, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated March 2, 2012 denying her claim for
wage-loss compensation. 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 is entitled to compensation for intermittent wage loss for
the periods March 29 to December 21, 2009, January 3 through December 25, 2010 and
January 3 through June 4, 2011.
FACTUAL HISTORY
This case was previously before the Board. By decision dated April 22, 2011, the Board
reversed OWCP’s September 15, 2009 decision which terminated appellant’s medical benefits
1

5 U.S.C. § 8101 et seq.

effective May 1, 2009. The Board found that the opinion of Dr. Jeffrey J. Sabin, a Boardcertified orthopedic surgeon and the impartial medical specialist, was equivocal and
unrationalized on the issue of whether she still had residuals of the accepted work-related injuries
of right shoulder strain, cervical strain and thoracic strain and whether further treatment or
therapy was warranted.2 The law and the facts of the previous Board decision are incorporated
herein by reference. Appellant retired from the employing establishment on June 1, 2011.
In a July 14, 2009 report, Dr. Laura Gervais, a chiropractor, noted treating appellant since
January 28, 2008, for right-sided periscapular pain, right neck pain and right thoracic spine pain
due to a fall at work in October 2000.3 She assessed chronic thoracic and cervical sprain/strain
with intersegmental dysfunction and myofascial triggering due to the workplace fall.
Dr. Gervais stated that no imaging was done at her office. She noted performing manipulative
therapy and myofascial release as well as applying hot moist packs.
On June 1, 2011 appellant filed a claim for intermittent compensation benefits from
March 29 through December 21, 2009, January 3 through December 25, 2010 and from
January 3 through June 4, 2011 identifying leave without pay, leave buyback, credit hours,
absent without leave (AWOL), and administrative leave for medical treatment and going to the
gym to perform prescribed independent exercises. The records contemporaneous with the period
claimed were from a chiropractor.4
In letters dated June 23 and August 17, 2011, OWCP informed appellant about the
deficiencies in her claims. It noted the evidence necessary to establish the claim and that she
appeared to claim time off to perform an independent exercise program during the workday.
OWCP had previously denied this claim. It further noted that many of appellant’s medical
records were from a chiropractor and there was no documentation to support such treatment.
In response, appellant submitted revised CA-7 and CA-7a forms dated July 12, 2011.
She claimed leave without pay (LWOP) for independent exercises and doctor appointments.
From January 4 to June 4, 2011, 1 hour LWOP on March 2, 2011 was claimed. From January 3
to March 27, 2010: 1 hour on January 9, 2010; 3.5 hours on January 23, 2010; and 3 hours on
March 6, 2010 for a total of 7.5 hours LWOP was claimed. From April 3 to July 3, 2010,
appellant claimed three hours LWOP on April 23, 2010. From July 4 to September 18, 2010,
appellant claimed five hours LWOP on August 28, 2010. From June 21 to September 5, 2009,
appellant claimed five hours LWOP on July 4, 2009. From September 12 through November 21,
2009, appellant claimed two hours on September 19, 2009 and four hours on November 21,
2009, for a total of six hours LWOP. Doctor appointments were noted to be on June 27, April 21
and 22, August 11 and 12, September 23 and 24 and November 16, 2009; January 8, 14, 16, 21
and 29, February 11, March 2 and 23, April 22 and 23, June 24 and 25, July 22 and 23 and
2

Docket No. 10-1026 (issued April 22, 2011). On October 6, 2000 appellant, a senior associate advocate, slipped
and fell on an icy surface while walking toward the entrance of her workplace. OWCP accepted her claim for right
shoulder strain, cervical strain and thoracic strain. Appellant lost intermittent time from work and received wageloss compensation. She returned to full duty without restrictions in August 2002.
3

The record also contains incomplete attending physician’s reports from Dr. Gervais in 2008 and 2009 noting
diagnosis codes.
4

Appellant did not claim wage-loss compensation for any of the dates she went to medical appointments.

2

August 26 and 27, 2010; January 20 and 21, February 24 and 25, March 24 and 25, April 21 and
22, May 26 and 27, 2011.
On July 29, 2011 the employing establishment stated that appellant’s work tour of duty
did not include Saturdays. The dates claimed which fell on Saturdays were noted as July 4,
September 19 and November 21, 2009, January 9 and 23, April 24 and August 28, 2010 and
March 26, 2011.
The employing establishment noted that appellant retired effective
June 1, 2011. On January 8, 2010 one hour was charged to Family Medical Leave Act (FMLA)
and the other seven hours were charged to a combination of annual leave, sick leave and work
codes and that she was paid for seven hours. On January 21, 2010 appellant’s time was charged
to a combination of work code and sick leave. On March 8, 2010 her entire day was charged to a
work code. On March 2, 2010 appellant’s time was charged to a work code and FMLA-LWOP.
On April 22, 2010 the entire day was charged to a work code. On April 23, 2010 the day was
charged to a combination of FMLA-LWOP and work code. On August 26 and 27, 2010
appellant’s time was charged to a combination of FMLA and work code.
The employing establishment stated that appellant’s claim forms were incomplete.
Appellant was allowed to use family leave for independent exercises but when her claim was
denied she continued to perform independent exercises and she was charged AWOL. The
employing establishment stated that, since she retired, she was no longer eligible to claim leave
buyback. A detailed list of the breakdown of appellant’s leave analysis was provided.
Appellant submitted revised CA-7 and CA-7a forms from January 3 through
December 25, 2010 and from January 3 through June 4, 2011 and an undated, incomplete Form
CA-20 from Heather Kauffman, a chiropractor.
In a July 21, 2011 report, Dr. Ronald L. Malm, a Board-certified family practitioner,
stated that appellant was at maximum medical improvement and that she was able to maintain
her current status with the self-directed exercise program as well as intermittent manipulative
therapy. He stated that appellant had consulted with Dr. Gervais for evaluation and treatment.
In an August 23, 2011 decision, OWCP denied appellant’s claim for intermittent
compensation benefits from January 3 through December 25, 2010 and from January 3 through
June 4, 2011. It found that the record contained insufficient medical evidence to support
disability claimed or to support compensation for medical appointments. OWCP also found no
documentation justifying treatment by a chiropractor as required under FECA. In denying
compensation for independent exercise, it referred to its previous decision dated February 25,
2005 which denied compensation for independent exercise.5
In a September 1, 2011 report, Dr. W. Carlton Reckling, a Board-certified orthopedic
surgeon, opined that appellant had ongoing pain and physical dysfunction related to her injuries
to the cervical spine, thoracic spine and shoulder. Appellant would benefit from a thoracic outlet
exercise program and an aggressive rehabilitation program. Magnetic resonance imaging (MRI)
5

By decision dated February 25, 2005, OWCP denied compensation for independent exercise which appellant
performed during work hours. It stated “although the claimant’s physicians support the necessity of the claimant
continuing to engage in her exercise program neither physician stated that the claimant was not medically capable of
working a full duty day and doing independent exercise after work at her convenience.”

3

scans for the cervical spine and right shoulder were ordered, which she underwent on
September 2, 2011.
OWCP found a conflict in medical opinion existed between Dr. Malm, a treating
physician, and Dr. Alfred Lotman, a Board-certified orthopedic surgeon and OWCP referral
physician, regarding to whether appellant had any continuing work-related residuals.
In a September 15, 2011 report, Dr. Hendrick J. Arnold, a Board-certified orthopedic
surgeon serving as an impartial specialist, opined that appellant had no continuing residuals of a
pathologic diagnosis due to her work injury and no further medical treatment was required as a
result of the work injury. He stated that she should be treated under the rubric of “chronic pain
syndrome” and advised that her need for treatment was due to intrinsic factors, not extrinsic
factors like her work-related trauma.
By decision dated October 6, 2011, OWCP denied appellant’s claim for intermittent
compensation from March 29 through December 21, 2009. It found the most contemporaneous
medical records were chiropractic records and, of the relevant physician records, none of the
dates she attended medical appointments were claimed. OWCP found there was no justification
of record to support chiropractic treatment and denied claimed compensation. It also denied
compensation claimed for independent exercise.
Appellant disagreed with the August 23 and October 6, 2011 decisions and requested a
hearing, which was held December 2, 2011. She stated that she lost time from work to perform
independent exercises and obtain treatment. When asked why she did not perform her
independent exercises after work, appellant indicated that her managers required her to work
certain schedules which would not allow her to get out of work before 3:30 p.m. and that she
picked up and cared for her grandchildren after school and there was no time afterwards to go to
the gym. She indicated that her husband helped with the grandchildren after he retired in 2010
and that she stopped doing her independent exercises in 2011. Appellant also stated that she left
work early to obtain treatment. She indicated that she sought help from chiropractors and
masseuses to help relieve her spasms. September 1 and 20, 2011 progress reports from
Dr. Reckling were received along with a December 20, 2011 report from Dr. Malm.
By decision dated March 2, 2012, an OWCP hearing representative affirmed OWCP
decisions dated August 23 and October 6, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.6 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.7 Whether a particular injury causes an

6

See Amelia S. Jefferson, 57 ECAB 183 (2005).

7

Id.

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employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.8
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.11 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).12 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.13
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.14
An injured employee may also be entitled to compensation for lost wages incurred while
obtaining authorized medical services.15 This includes the actual time spent obtaining the
medical services and a reasonable time spent traveling to and from the medical provider’s
location.16 As a matter of practice, OWCP generally limits the amount of compensation to four

8

See Edward H. Horton, 41 ECAB 301 (1989).

9

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
10

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

11

Merle J. Marceau, 53 ECAB 197 (2001).

12

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

13

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

14

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

15

See 5 U.S.C. § 8103(a) (2006); Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(October 2009).

5

hours with respect to routine medical appointments.17 However, longer periods of time may be
allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.18
In situations where compensation is claimed for periods when leave was used, OWCP has
the authority and the responsibility to determine whether the employee was disabled during the
period for which compensation is claimed.19 It determines whether the medical evidence
establishes that an employee is disabled by an employment-related condition during the period
claimed for leave buyback, after which the employing establishment will determine whether it
will allow the employee to buy back the leave used.20
ANALYSIS
OWCP accepted that on October 6, 2000 appellant sustained cervical, thoracic and right
shoulder strains during the course of her federal employment. She filed claims for compensation
for intermittent periods from March 29, 2009 through June 4, 2011 for treatment with a
chiropractor and for going to the gym to perform prescribed independent exercises. OWCP
advised appellant on June 23 and August 17, 2011 of the deficiencies in her claim for wage-loss
compensation. It noted that it had previously denied her claim for wage-loss compensation for
time off to perform independent exercise during the workday and there was no medical
documentation justifying her treatment by a chiropractor. By decision dated March 2, 2010, a
hearing representative affirmed the August 23 and October 6, 2011 OWCP decisions that denied
compensation for wage loss for the periods March 29 to December 21, 2009, January 3 to
December 25, 2010 and January 3 to June 4, 2011.
The Board finds that appellant had not met her burden of proof to establish entitlement to
compensation for the claimed periods. Several days which she claimed wage-loss compensation
for are not payable. Since appellant’s tour of duty did not include Saturdays, the time claimed on
July 4, September 19 and November 21, 2009, January 1 and 23, April 24 and August 28, 2010
and March 26, 2011 are not payable. The employing establishment advised that the entire day of
March 8, 2010 was charged to a work code, so it is not payable. As appellant retired on June 1,
2011, she is not eligible for compensation claimed June 1 through 4, 2011. The employing
establishment also indicated that she was not eligible to claim leave buyback, so the annual and
sick leave listed is not payable.21 The Board notes that, for certain LWOP claimed, the
employing establishment indicated several of the dates claimed were charged to a combination of
FMLA-LWOP and work code. For time in which appellant was in LWOP status, she has not
submitted supporting medical evidence to indicate that she was either totally disabled, due to her

17

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
18

Id.

19

See Glen M. Lusco, 55 ECAB 148 (2003); see also 20 C.F.R. § 10.425.

20

Glen M. Lusco, id.

21

As noted, employing establishment rules determine if leave buyback is available. 20 C.F.R. § 10.425.

6

accepted conditions, for the time claimed or that she was obtaining authorized medical services
at the claimed time.
Regarding the claim of compensation for medical appointments, there are no
contemporaneous medical records during the periods to support compensation for wage-loss
incidental to authorized medical services. The records are from chiropractors. The record does
not contain any documentation authorizing treatment by a chiropractor. The record contains no
evidence from Dr. Gervais or Dr. Kaufmann that they manually manipulated appellant’s spine to
correct a subluxation as demonstrated by x-ray to exist.22 The chiropractors are not physicians as
defined under FECA. The wage-loss compensation claimed for chiropractic care is not
reimbursable. There is also no indication that appellant’s treatments were rendered upon the
direction of an authorized physician.23 Although Dr. Malm noted that appellant had consulted
with Dr. Gervais, he did not indicate that he referred appellant to Dr. Gervais for treatment of her
accepted conditions. Thus OWCP properly denied wage-loss compensation for wage loss which
appellant incurred from obtaining chiropractic treatment.
There is also no contemporaneous medical records during the periods claimed to support
wage-loss compensation for appellant to perform independent exercises during work hours.
OWCP previously found in its February 25, 2005 decision that none of appellant’s physicians
found that she was not medically capable of working a full-duty day and doing independent
exercises after work. Appellant submitted no further medical evidence to support that she was
not capable of performing her full-time federal duties and that she must perform her prescribed
independent exercises during work hours. It was her choice to exercise during work hours so she
could engage in personal obligations after work. Thus, OWCP properly denied wage-loss
compensation for wage loss incurred when appellant engaged in independent exercises at the
gym during work hours.
The Board finds that appellant has not submitted medical evidence sufficient to establish
entitlement to wage-loss compensation for intermittent periods from March 29 to December 21,
2009, January 3 to December 25, 2010 and January 3 to June 4, 2011. OWCP properly denied
her claim for compensation.
On appeal appellant contends that the hearing representative incorrectly noted her
employing establishment and her work-related injuries in the March 2, 2012 decision. While the
decision may contain an incorrect reference to appellant’s employer, this administrative error has
no bearing on the fact that appellant’s wage-loss claim for intermittent periods March 29 to
December 21, 2009, January 3 to December 25, 2010 and January 3 to June 4, 2011 is not
supported by the medical evidence of record.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

22

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

23

David Deloatch, 41 ECAB 212 (1989).

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CONCLUSION
The Board finds that appellant has not established entitlement to intermittent wage-loss
compensation for the periods March 29 to December 21, 2009, January 3 to December 25, 2010
and January 3 to June 4, 2011.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 2, 2012 is affirmed.
Issued: November 14, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE ARMY, U.S.
MILITARY ACADEMY, West Point, NY,
Employer
__________________________________________

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Docket No. 13-1454
Issued: November 4, 2013

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

Case Submitted on the Record

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

JURISDICTION
On May 31, 2013 appellant, through counsel, timely appealed the May 8, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which granted a schedule
award. 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 schedule award claim.
ISSUE
The issue is whether appellant has greater than onepercent impairment of the right leg.
FACTUAL HISTORY
Appellant, a 65-year-oldretired small engine repairer/motor vehicle operator, has an
accepted traumatic injury claim for a right foot contusion and right ankle abrasion. He was
injured on October 30, 2009 when a portable light set weighing 300 to 400 pounds fell on his
1

5 U.S.C. §§ 8101-8193.

right ankle trapping his foot underneath. Effective March 30, 2010, appellant returned to work in
a light-duty capacity. He resumed his full-time regular duties on September 21, 2010. Appellant
subsequently filed a claim (Form CA-7) for a schedule award.
In a May 12, 2011 report, Dr. Paul B. Atlas,a podiatrist, found 50 percent impairment of
the right foot based on loss of range-of-motion of the ankle and subtalar joints. He found that
appellant had reached maximum medical improvement. Dr. Atlas’ 50 percent rating was based
on New York State workers’ compensation guidelines.
By letter dated July 1, 2011, OWCP advised appellant to have his treating physician
submit an impairment rating in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment(2008).
Dr. Atlas provided a September 13, 2011 impairment rating. He diagnosed complex
regional pain syndrome (CRPS) and found 13 percent right lower extremity
impairment.Dr. Atlas referenced Table 16-2 and Table 16-12, of the A.M.A., Guides (6th ed.
2008).2
Dr. Henry J. Magliato, a district medical adviser, was unable to confirm that Dr. Atlas
arrived at the 13 percent lower extremity impairment rating as Table 16-2 was a peripheral nerve
impairment table and was not applicable. Dr. Magliato’s diagnosis of CRPS was not represented
under Table 16-2 or Table 16-12, A.M.A., Guides 501-08, 534-36 (6th ed. 2008), thus, it was
unclear how Dr. Atlas rated appellant utilizing the referenced tables.He recommended that
OWCP refer appellant for a second opinion evaluation by an orthopedic foot/ankle surgeon
familiar with rating impairment under the A.M.A., Guides (6th ed. 2008).
Dr. Joseph P. Laico, a Board-certified orthopedic surgeon and OWCP referral physician,
examined appellant on March 6, 2013. He rated appellant for a soft tissue injury -- contusion -under Table 16-2, A.M.A., Guides 501 (6th ed. 2008) which represented a class 1 (mild problem)
impairment with a default rating “C” of one percent. Taking into account the adjustments and
grade modifiers for Functional History (GMFH 1), Physical Examination (GMPE 1) and Clinical
Studies (GMCS 1), Dr. Laico calculated a net adjustment of zero. He found a right lower
extremity impairment of one percent.
On March 22, 2013 Dr. Magliatoreviewed the record and concurred with Dr. Laico’sone
percent right lower extremity impairment rating.
On May 8, 2013 OWCP granted a schedule award for one percent impairment of
appellant’s right lower extremity. The award covered 2.88 weeks from March 6 to 26, 2013.

2

Dr. Atlas identified both Table 16-2 and Table16-12 as “Foot and Ankle Regional” Grid (LEI). That is the
correct designation for Table 16-2, but Table 16-12 is titled “Peripheral Nerve Impairment (LEI).”SeeA.M.A.,
Guides501-08, 534-36 (6th ed. 2008).

2

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.3 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.4 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides.5
ANALYSIS
Appellant’s claim was accepted for a right foot condition and ankle abrasion. He filed a
claim for a schedule award . The Board notes that neither of Dr. Atlas’ impairment ratings were
in accordance with the A.M.A., Guides (6th ed. 2008).Dr. Atlas’ May 12, 2011 assessment was
based on New York State workers’ compensation guidelines which are inapplicable to claims of
federal employees under FECA. Whilehe referenced the A.M.A., Guides (6th ed. 2008)in his
September 13, 2011 report, the 13 percent impairment rating based on a diagnosis of chronic
regional pain syndrome did not correspond with either of the identified tables6 nor did the
physician address any net modifiers.
Dr. Laico found that appellant had one percent impairment of the right lower extremity
pursuant to Table 16-2, A.M.A., Guides 501 (6th ed. 2008). The rating was based on the
diagnosis of a soft tissue injury --contusion --which represented a class (CDX) 1 impairment
with a default grade “C” of one percent LEI. Factoring in grade modifiers for functional history
one, physical examination one and clinical studies one, Dr. Laico found a net adjustment of zero.
Therefore, no adjustment was made from the default value of one percent LEI.7 Dr. Magliato
concurred in his impairment rating as complying with the sixth edition of the A.M.A., Guides.

3

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
4

20 C.F.R. § 10.404.

5

SeeFederal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
6

See supra note 2. Impairment due to CRPS is addressed in Section 16.6 utilizing Table 16-13, Table16-14 and
Table16-15, A.M.A., Guides 538-42 (6th ed. 2008).
7

Net Adjustment (GMFH 1 - CDX 1) + (GMPE 1 - CDX 1) + (GMCS 1 - CDX 1). See Section 16.3d, A.M.A,
Guides 521 (6th ed. 2008).

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The Board finds that the impairment rating of Dr. Laico andDr. Magliato conform to the
A.M.A., Guides (6th ed. 2008). It represents the weight of the medical evidence regarding the
extent of appellant’s right lower extremity impairment.
Appellant has not submitted any other medical evidence to establish that he has greater
than one percent impairment of the right lower extremity. He may request a schedule award or
increased schedule award based on evidence of a new exposure or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment.
CONCLUSION
Appellant failed to establish that he has greater than one percent impairment of the right
lower extremity.
ORDER
IT IS HEREBY ORDERED THATthe May 8, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 4, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Long Beach, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0535
Issued: July 25, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 10, 2019 appellant, through counsel, filed a timely appeal from an October 23,
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 October 26, 2017, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On May 10, 1988 appellant, then a 49-year-old staff nurse, filed a traumatic injury claim
(Form CA-1) alleging that on May 8, 1988 she suffered low back pain while turning a patient in
bed. She stopped work and with the exception of one day in October 1989, she has not worked
since that time. OWCP initially accepted the claim for low back strain. On June 30, 1989 it
terminated appellant’s wage-loss compensation and medical benefits as she was no longer disabled
due to the accepted low back strain.
Following a March 26, 1990 reconsideration request, OWCP referred appellant to
Dr. David Geddes, a Board-certified psychiatrist, for a second opinion evaluation. Based on
Dr. Geddes’ July 20, 1990 report, on August 23, 1990 it accepted psychiatric factors affecting
appellant’s physical condition, with dysthymia. Appellant was placed on the periodic
compensation rolls effective August 26, 1990.
OWCP continued to develop the claim and, based on a July 3, 2008 second opinion
evaluation performed by Dr. E. Richard Dorsey, a Board-certified psychiatrist, on April 3, 2009 it
reduced appellant’s compensation based on her ability to earn wages as a medical assistant.
Appellant requested reconsideration and, by decisions dated July 15, 2009 and September 2, 2010,
OWCP denied modification of its April 3, 2009 decision. She filed an appeal with the Board and,
by decision dated October 7, 2011, the Board reversed these decisions, finding that OWCP had
not established that appellant’s wage-earning capacity was represented by the constructed position
of medical assistant.3
On April 26, 2013 OWCP referred appellant to Dr. Steven M. Ma, a Board-certified
orthopedic surgeon, and Dr. Ana M. Andia, a Board-certified psychiatrist for second opinion
evaluations.
In a May 15, 2013 report, Dr. Ma determined that appellant had no objective residuals from
her 1988 employment injury, and that her physical limitations were due to multiple nonworkrelated conditions. He opined that appellant could be gainfully employed at her usual employment
duties.

2

Docket No. 92-1678 (issued June 17, 1993), Docket No. 11-0078 (issued October 7, 2011) and Docket No. 161033 (issued June 22, 2017).
3

Docket No. 11-0078, id.

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In a May 23, 2013 report, Dr. Andia indicated that, while appellant’s initial onset of
depression appeared to be due to the low back injury, her current depressive symptoms had not
been aggravated by her low back pain, but were caused by multiple stressors that she had
encountered since her back injury. She listed a number of stressors and opined that appellant had
a dysthymic disorder, which was currently caused by multiple nonwork-related aggravating
stressors, and that she also had nonadaptive personality traits. Dr. Andia advised that appellant
was not likely to improve, and could not return to work as a nurse due to her age and that her
personality disorders were a result of nature and nurture and not related to employment factors.
By decision dated October 8, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective October 20, 2013. It determined that the weight of the medical
evidence, represented by the opinions of Dr. Ma and Dr. Andia, established that she no longer had
residuals or disability due to her accepted employment-related conditions. By decision dated
September 10, 2014, a hearing representative with OWCP’s Branch of Hearings and Review
affirmed the October 8, 2013 decision.4
Following an October 1, 2014 reconsideration request, by decision dated February 13,
2015, OWCP denied modification of its prior decision. Appellant, through counsel, again
requested reconsideration on November 26, 2015. By decision dated February 24, 2016, OWCP
again denied modification.
Appellant appealed to the Board on April 20, 2016. By decision dated June 22, 2017, the
Board found that OWCP met its burden of proof to terminate appellant’s wage-loss compensation
and medical benefits effective October 20, 2013 and that appellant had not established continuing
residuals or disability on or after that date.5
Subsequent to the Board’s June 22, 2017 decision, on July 28, 2017 appellant, through
counsel, requested reconsideration. She asserted that a conflict in medical opinion had been
created between appellant’s attending psychiatrist and second opinion psychiatrist Dr. Andia, and
maintained that appellant should be referred for an independent medical evaluation.
By decision dated October 26, 2017, OWCP denied modification of the Board’s June 22,
2017 decision.
On July 30, 2018 appellant, through counsel, again requested reconsideration. She asserted
that OWCP committed reversible error when it terminated benefits in 2013 based on a 2009
medical opinion that was appropriated by Dr. Andia in 2013.
By decision dated October 23, 2018, OWCP denied appellant’s request for reconsideration,
finding that the arguments raised were cumulative and repetitive and she did not submit new and
relevant evidence.

4

Appellant had timely requested a hearing on October 31, 2013. A hearing was held on July 10, 2014.

5

Docket No. 16-1033, supra note 2.

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LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.8
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.9 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Counsel’s assertions on reconsideration regarding the reliability of Dr. Andia’s opinion are
duplicative of arguments made in the past, to both OWCP and the Board. The Board has held that
the submission of evidence or argument which repeats or duplicates evidence or argument already
in the case record does not constitute a basis for reopening a case.11 Consequently, appellant was
not entitled to a review of the merits based on the first and second above-noted requirements under
20 C.F.R. § 10.606(b)(3).

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees Compensation System (iFECS). Chapter 2.1602.4b
9

20 C.F.R. § 10.606(b)(3); see J.B., Docket No. 18-1531 (issued April 11, 2019).

10

Id. at § 10.608.

11

J.B., supra note 9.

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Furthermore, appellant submitted no new evidence in support of her request for
reconsideration.12 Thus, she is also not entitled to a review of the merits of her claim based on the
third above-noted requirement under section 10.606(b)(3).13
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

Id.

13

H.H., Docket No. 18-1660 (issued March 14, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
SMITHSONIAN INSTITUTION, NATIONAL
MUSEUM OF THE AMERICAN INDIAN,
Washington, DC, Employer
__________________________________________

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

Docket No. 09-774
Issued: November 16, 2009

Case Submitted on the Record

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

JURISDICTION
On January 27, 2009 appellant filed an appeal of a November 26, 2008 merit decision of
the Office of Workers’ Compensation Programs which found that she did not sustain an injury.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an injury on
March 27, 2007.
FACTUAL HISTORY
On March 27, 2007 appellant, then a 55-year-old management support assistant, filed a
Form CA-1 (notice of traumatic injury) alleging that on that day she injured her right foot and
ankle and left leg when she slipped and fell while exiting a shuttle bus that transported
employees between employing establishment locations. She did not stop work. The employing
establishment controverted the claim on the basis that appellant was not in the performance of

duty when the injury occurred. Appellant submitted material from Fort Washington Medical
Center, which indicated that she was seen on March 27, 2007 at 10:10 a.m. for a slip and fall
from a bus.
By letter dated May 7, 2008, the Office advised appellant that additional factual and
medical evidence were needed to establish her claim. It also requested information from the
employing establishment. No additional evidence was received.
By decision dated June 19, 2008, the Office denied appellant’s claim. It found
that the March 27, 2007 work incident occurred at the time, place and in the manner alleged;
however, the medical evidence was insufficient to establish that appellant sustained an injury
causally related to the accepted employment incident.
On August 7, 2008 appellant requested reconsideration. In a March 27, 2007 record from
Fort Washington Hospital, Dr. Deepak Sachdeva, a specialist in emergency medicine, noted a
history of a fall when stepping from a bus. He provided an impression of contusion of the right
leg. Appellant also submitted an April 21, 2007 occupational injury and illness report, a
March 27, 2007 clinic visit progress notes report from an employing establishment nurse and
duplicative copies of materials from Fort Washington Medical Center.
In a July 28, 2008 statement, Stephanie Makseyn-Kelley, a museum program specialist,
stated that the March 27, 2007 incident occurred as appellant was traveling by shuttle from her
duty station at the Cultural Resources Center (CRC) to the museum on the National Mall.
Ms. Makseyn-Kelley indicated that appellant reported to her duty station at 8:00 a.m. and left on
the 8:25 a.m. shuttle to the mall museum. The accident occurred at 9:10 a.m. as she was getting
off the shuttle.
By decision dated November 26, 2008, the Office denied modification of its June 19,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.3
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael I. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 2.

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.7 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.8
ANALYSIS
The Office accepted that on March 27, 2007 appellant fell. The record indicates that she
was traveling from one site of the employing establishment to another site in a shuttle bus
provided by the employing establishment when the incident occurred. The Board finds,
however, that the medical evidence of record is insufficient to establish that the accepted
employment incident caused an injury as claimed.
The March 27, 2007 record of Dr. Sachdeva noted the history of stepping from a bus and
provided an impression of contusion of the right leg. Although he noted that appellant was
stepping from a bus, he did not clearly address whether her diagnosed contusion resulted from a
fall. Dr. Sachdeva failed to specifically address the causal relationship between appellant’s
condition and the accepted incident. The Board finds this evidence to be of diminished probative
value.9 There is no other medical evidence from a physician that supports that the March 27,
2007 incident caused or aggravated a diagnosed medical condition.
Appellant was notified by Office letter dated May 7, 2008 that she was required to
provide medical evidence containing a diagnosis and a physician’s opinion regarding the cause
of her injury. She failed to submit sufficient medical evidence to rectify the deficiencies in her
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
7

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8

Charles E. Evans, 48 ECAB 692 (1997).

9

Elaine Pendleton, supra note 2; Michael I. Smith, supra note 3.

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claim. The Board finds that appellant failed to provide sufficient medical evidence to establish
that she sustained an injury resulting from the March 27, 2007 employment incident. She failed
to meet her burden of proof.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury on
March 27, 2007, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 26, 2008 is affirmed.
Issued: November 16, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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