United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, NASHVILLE POST
OFFICE, Nashville, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-880
Issued: December 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 4, 2008 appellant filed a timely appeal from a November 30, 2007 decision
of the Office of Workers’ Compensation Programs denying a period of disability. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that she was disabled for work from April 15
to August 10, 2004 causally related to accepted neck and shoulder injuries.
FACTUAL HISTORY
This is the second appeal before the Board. By order issued May 17, 2006,1 the Board set
aside a September 19, 2005 decision of the Office denying appellant’s claims for total disability
compensation for the period April 15 to August 10, 2004. The Board remanded the case for
1

Docket No. 06-284 (May 17, 2006). At the time of the prior appeal, the Board had jurisdiction only over File
No. xxxxxx577 for bilateral shoulder tendinitis.

doubling of File No. xxxxxx577, accepted for bilateral shoulder tendinitis, with File No.
xxxxxx996, accepted for cervical and thoracic spine strains. The injuries in both claims were
sustained in a June 27, 2003 employment-related motor vehicle accident.2
On remand, the Office doubled File No. xxxxxx577 with File No. xxxxxx996, using
xxxxxx996 as the master file number. It reviewed the combined medical record.3
In a June 27, 2003 emergency room report, a physician whose signature is illegible stated
that appellant sustained a neck and back strain in a motor vehicle accident that day. Appellant
struck her head on the windshield.
In a February 9, 2004 report, Dr. R. Troy Carlson, an attending Board-certified family
practitioner, provided a history of injury and diagnosed musculoskeletal neck pain. On
March 26, 2004 he diagnosed a C5-6 herniation with mild spondylosis and degenerative changes.
An April 2, 2004 cervical magnetic resonance imaging (MRI) scan showed a C5-6 disc
protrusion with right-sided anterior cord compression. Dr. Carlson held appellant off work
beginning April 20, 2004 pending a neurologic evaluation. In a June 29, 2004 report, he stated
that appellant had been “physically unable to work since April 15, 2004 due to herniated disc.”
Dr. Carlson stated that the June 27, 2003 accident and carrying mail contributed to appellant’s
shoulder and neck conditions.
Dr. F. Shawn Madden, an attending Board-certified physiatrist, submitted a March 23,
2004 report noting that appellant developed headaches and neck pain following the June 27,
2003 accident. He opined that “due to neck being thrown around in car accident; this causes disc
herniations.” In a November 23, 2004 report, Dr. Madden opined that the June 27, 2003 accident
caused a whiplash injury. He diagnosed a herniated C5-6 disc with radiculitis. Dr. Madden
opined on March 23, 2005 that “the disc herniation was caused by the motor vehicle accident and
should be considered” compensable. He noted in a May 31, 2005 report that a “motor vehicle
accident could easily cause a disc herniation in the cervical spine.” Dr. Madden stated in a
July 26, 2005 report that the June 27, 2003 “motor vehicle accident … caused a cervical disc
herniation” with radicular symptoms.
Dr. Vicente C. Gracias, an attending Board-certified neurosurgeon, opined on
September 2, 2004 that the June 27, 2003 accident caused a “cervical strain or flexion/extension
2

At the time of the accident, appellant was a 50-year-old rural letter carrier.

3

Appellant’s physicians referred her to several specialists who did not address causal relationship or the claimed
period of disability. On April 15, 2004 appellant had a surgical consultation with Dr. John E. Stevenson, a Boardcertified neurosurgeon. In a May 5, 2004 report, Dr. Kenneth S. Merriman, an attending Board-certified orthopedic
surgeon, diagnosed a herniated C5-6 disc. He also diagnosed bilateral shoulder tendinitis due to repetitive reaching
at work. Dr. Robert B. Handel, an attending osteopathic physician, found appellant unable to work as of
August 13, 2004. Appellant underwent analgesic injections of the neck in November 2004 and the subacromial
bursa in January 2006. Dr. Girish Junega, an attending Board-certified physiatrist, stated on April 27, 2006 that he
could not address causal relationship as he had not reviewed the complete medical record. Appellant also submitted
reports from Dr. Michael N. Callton, a chiropractor. As Dr. Callton did not diagnose a spinal subluxation by x-ray,
he is not considered a physician for the purpose of this case and his opinion has no medical value. 5 U.S.C.
§ 8101(3), 20 C.F.R. § 10.311(a). See Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams, 44 ECAB
530 (1993).

2

injury” based on appellant’s account of the incident. Dr. Gary L. Miller, an attending
osteopathic physician Board-certified in neurology, submitted September 13, 2004 and
February 2, 2005 reports diagnosing post-traumatic head and neck pain related to the June 27,
2003 accident.
By decision dated September 14, 2006, the Office denied appellant’s claim for total
disability from April 15 to August 10, 2004. It found the medical evidence did not establish that
she was disabled for work for the claimed period due to the accepted neck and shoulder injuries.
Appellant requested an oral hearing held on March 21, 2007. At the hearing, she asserted
that the herniated C5-6 disc diagnosed by Dr. Carlson was caused or aggravated by the June 27,
2003 motor vehicle accident and by lifting and reaching after she returned to full duty on
July 9, 2003. Appellant asserted that she was disabled for work due to neck pain from April 15
to August 10, 2004.4
In a July 24, 2007 decision, the Office hearing representative set aside the September 14,
2006 decision and remanded the case for further development. The hearing representative
directed the Office to refer appellant to a second opinion specialist to determine if the June 27,
2003 accident caused or aggravated the diagnosed herniated C5-6 disc or otherwise disabled her
for work for the claimed period.
On August 21, 2007 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Perry W. Greene, Jr., a Board-certified orthopedic surgeon, for a second
opinion examination. Dr. Greene submitted a September 26, 2007 report reviewing the medical
record and statement of accepted facts. On examination, he found a full range of motion
throughout the spine and in both shoulders. Dr. Greene opined that the June 27, 2003 accident
caused soft tissue injuries. In a November 12, 2007 supplemental report, he explained that
appellant did not sustain a herniated disc in the June 27, 2003 accident as she did not have
objective radiculitis. Dr. Greene stated that the herniated disc visible on the April 2, 2004 MRI
scan was an asymptomatic, age-related finding common in appellant’s age group. He
commented that, according to the record, there was probably no reason to take appellant off work
in April 2004.
By decision dated November 30, 2007, the Office affirmed the September 14, 2006
decision, finding that appellant had not established total disability for work from April 15 to
August 10, 2004. It accorded Dr. Greene the weight of the medical evidence.

4

In a May 2, 2007 letter, the employing establishment alleged that appellant was not disabled as she was
allegedly observed by a “community member” fishing and rafting.

3

LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act5
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.6
To establish a causal relationship between a claimed period of disability claimed and the
accepted employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background, supporting such a causal relationship.7 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.8 Rationalized medical evidence is evidence which
includes a physician s rationalized medical opinion on the issue of whether there is a causal
relationship between the claimant s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, 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.9
ANALYSIS
The Office accepted that appellant sustained cervical and thoracic spine strains and
bilateral shoulder tendinitis in a June 27, 2003 motor vehicle accident. Appellant claimed wageloss compensation for the period April 15 to August 10, 2004 due to sequelae of the June 27,
2003 accident. By decision dated November 30, 2007, the Office denied compensation for the
claimed period of disability.
Appellant submitted reports from Dr. Carlson, an attending Board-certified family
practitioner, who diagnosed a herniated disc at C5-6 and held appellant off work beginning on
April 20, 2004 pending a neurologic evaluation. However, Dr. Carlson did not opine that the
herniated disc was caused or aggravated by the June 27, 2003 accident. Also, he did not indicate
that the accepted neck and shoulder injuries disabled appellant for work for the claimed period.
Dr. Carlson’s opinion is therefore insufficient to meet appellant’s burden of proof in establishing
that the claimed period of disability was work related.
Appellant also submitted reports from Dr. Madden, an attending Board-certified
physiatrist, who did not find appellant disabled for work for the claimed period. Although
Dr. Madden stated in several reports that the June 27, 2003 accident caused the C5-6 disc
herniation, he did not provide sufficient rationale to support his stated conclusion. He did not
5

5 U.S.C. §§ 8101-8193.

6

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

7

Manuel Gill, 52 ECAB 282 (2001).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

4

explain how and why the June 27, 2003 accident caused or contributed to the diagnosed disc
condition or why appellant became disabling for work beginning on April 15, 2004 after she had
returned to full duty on July 9, 2003. This lack of medical rationale diminishes the probative
value of Dr. Madden’s opinion.10
Dr. Gracias, an attending Board-certified neurosurgeon and Dr. Miller, an attending
Board-certified neurologist, opined that the June 27, 2003 accident caused the accepted cervical
strain. Neither physician found appellant disabled for work from April 15 to August 10, 2004.
Their reports are thus insufficient to meet appellant’s burden of proof.
The Office found that the weight of the medical evidence was represented by Dr. Greene,
a Board-certified orthopedic surgeon and second opinion physician, who reviewed the complete
medical record and statement of accepted facts. Dr. Greene opined that the record showed no
reason for Dr. Carlson to have held appellant off work beginning in April 2004. He also
explained that the herniated disc demonstrated by the MRI scan was an asymptomatic finding
common for appellant’s age. Dr. Greene found no objective evidence of a traumatic disc
herniation. The Board finds that his report is well rationalized and based on a complete factual
and medical history. It is sufficient to represent the weight of the medical evidence in this case.11
Appellant has failed to meet her burden of proof, as she submitted insufficient
rationalized medical evidence establishing she was totally disabled for work from April 15 to
August 10, 2004 due to the accepted injuries.
CONCLUSION
The Board finds that appellant has not established that she was disabled for work from
April 15 to August 10, 2004 due to accepted neck and shoulder injuries.

10

See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports
lacking rationale on causal relationship are entitled to little probative value).
11

Michael S. Mina, 57 ECAB 379 (2006); Solomon Polen, 51 ECAB 341 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 30, 2007 is affirmed.
Issued: December 5, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-339
Issued: October 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 5, 2011 appellant, through his attorney, filed a timely appeal of the
August 15, 2011 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) and
the September 27, 2011 nonmerit decision. 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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
benefits effective November 14, 1994 pursuant to 5 U.S.C. § 8106(c); and (2) whether OWCP
abused its discretion by denying his request for an oral hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 47-year-old rural mail carrier, injured his lower back on December 15, 1987.
He filed a claim for benefits, which OWCP accepted for lumbar strain and herniated disc.
Appellant was paid compensation for temporary total disability and placed on the periodic rolls.
In September 1990, OWCP referred appellant to a vocational rehabilitation counselor,
who was asked to locate a suitable job for appellant.
In a work restriction evaluation form dated November 25, 1991, Dr. Albert H. Belfie, an
osteopath and appellant’s treating physician, indicated that he was capable of working eight
hours a day with the following restrictions: intermittent sitting, standing and walking for no
more than four hours a day; and intermittent lifting not exceeding 10 pounds for no more than
one hour a day.
By letter dated February 5, 1992, the employing establishment offered appellant a job as
a modified manual distribution clerk based on the restrictions set forth by Dr. Belfie, his
attending physician. The job entailed separating incoming and outgoing mail in a postal facility,
with miscellaneous clerk duties to be assigned in accordance with his restrictions.
On February 20, 1992 OWCP’s medical adviser reviewed Dr. Belfie’s work restrictions
and the modified job description and found that the offered position was reasonable and
medically suitable.
By letter dated February 21, 1992, OWCP advised the claimant that the offered position
was suitable, advised the claimant of the sanctions for refusal of suitable work and allowed
appellant 30 days to reply.
On February 14 and March 20, 1992 appellant declined the offered position, contending
that he believed he could not perform the duties of the position due to limitations stemming from
his accepted work injury. He submitted a March 2, 1992 report from Dr. Belfie, who advised
that he had been treating appellant for low back pain syndrome stemming from his accepted
employment injury. Dr. Belfie stated that he had exhausted all known options for diagnosis and
treatment of appellant’s chronic pain problem and that he had nothing further to offer him.
In a March 19, 1992 report, Dr. Carl S. Jenkins, a specialist in orthopedic surgery,
advised that his examination was cut short because appellant was desperate and in “a paranoid
state” because he believed “the system was against him.” He opined that appellant was in no
mental condition to return to a work situation. Dr. Jenkins recommended a continuation of
appellant’s disability for a three-month period to maintain treatment of his failed back syndrome,
along with some modification of his “industrial induced mental paranoia and defensive
attitudinal complex which might make job situations intolerable.”
By decision dated April 27, 1992, OWCP terminated appellant on the grounds that he
refused an offer of suitable employment. It found that he failed to submit medical evidence
sufficient to establish that he was unable to perform the offered position and that therefore his
refusal of the position was not justified.

2

By letter dated May 22, 1992, appellant’s attorney requested an oral hearing, which was
held on September 29, 1992. At the hearing appellant testified that he was experiencing pain
from his accepted lower back conditions which prevented him from performing the duties of the
offered position. He acknowledged that the modified job was tailored to the work restrictions set
forth by his treating physician, Dr. Belfie, who stated, however, that appellant could not perform
the position because it was located in Dayton, which was a 30-minute drive from his home and
driving would aggravate his lower back condition. Appellant also asserted that he had a history
of being unable to work a night shift, which had an adverse effect on his emotional state.
By decision dated November 30, 1992, OWCP’s hearing representative affirmed the
April 27, 1992 decision. In an August 11, 1994 decision, the Board set aside OWCP’s April 27
and November 30, 1992 decisions, finding that OWCP failed to notify appellant that he had 15
days to accept the modified job offer before finding that his refusal to accept the job offer was
unjustified.
On October 21, 1994 the employing establishment reissued the job offer for modified
manual distribution clerk.
By letter dated October 21, 1994, OWCP advised appellant that the modified manual
distribution job was suitable and that, pursuant to section 8106(c)(2), he had 15 days to either
accept the job or provide a reasonable explanation for refusing the offer; otherwise his
entitlement to compensation benefits would be terminated. Appellant did not respond to the
offer.
By decision dated November 14, 1994, OWCP terminated appellant’s compensation
benefits on the grounds that he refused an offer of suitable work. It found that the position
offered by the employing establishment was within his treating physician’s prescribed work
restrictions and credited the opinion of OWCP’s medical adviser that he was capable of
performing the position. OWCP also noted that appellant had been afforded the requisite 15-day
notice and opportunity to comply with 5 U.S.C. 8106(c).
On October 29, 2003 OWCP accepted the condition of exacerbation of depressive
disorder.
By decisions dated October 1, 2002, April 30, June 28, 2004, January 24, June 7, 2005,
November 9, 2006, October 18, 2007, November 14, 2008 and February 17, 2010, OWCP
denied appellant’s requests to modify the November 14, 1994 termination decision. This
determination was upheld by the Board.
In a January 22, 2009 report, Dr. Stephen D. Watson, a Board-certified anesthesiologist
and pain management specialist, indicated that appellant experienced lower back pain caused by
lumbar disc dislocation, which stemmed from his December 1987 work injury. He stated
findings on examination and rated appellant’s pain as a 5 on a scale of 1 to 10. Appellant had a
moderate functional impairment which was present only when it interfered with some daily
activities. Dr. Watson stated that appellant underwent a magnetic resonance imaging (MRI) scan
on May 4, 2006 which showed a disc herniation at L4-5 and L5-S1 in the left lateral recess,
causing moderate to marked left lateral recess stenosis. He also had psychiatric symptoms of

3

anxiety, depression and sleeplessness. Appellant currently had problems with intervertebral disc
disorders in the lumbar region. Dr. Watson diagnosed myogenic pain secondary to muscle
spasms, lumbar disc displacement and lumbar radiculopathy; he also noted a history of marijuana
addiction/dependency.
In a report dated May 28, 2009, Dr. Kent A. Eichenauer, a specialist in psychiatry,
advised that appellant requested a psychological evaluation to support his belief that the 1994 job
offer was not suitable because it required him to work nights. Appellant asserted that his
previous attempts to work the night shift were unsuccessful and, therefore, the job offer was not
suitable. He contended that the employing establishment was determined to find a way to
terminate his employment, that one of his coworkers spread false rumors about him and that an
employing establishment physician was rude with him and physically pushed him back to his
office.
Appellant related to Dr. Eichenauer that he began working at the employing
establishment in 1981 managing a letter sorting machine from 10:00 p.m. to 6:30 a.m. He
asserted that he was unable to function working this shift and experienced sleeplessness,
irritability, mood swings and broke out in hives. Appellant also related that he began to use
drugs, including marijuana and freebase cocaine, because of the depression he was experiencing;
he told Dr. Eichenauer that drug use was one of the options suggested to him by coworkers
working nights as their method of coping. He was voluntarily reassigned to the 5:00 p.m. to 1:30
a.m. shift but he still had attendance problems due to his physical problems, lack of sleep and
drug use. Appellant sought treatment with Letitia Van Benten Ph.D., a clinical psychologist, and
asserted that she wrote letters to the employing establishment recommending a day shift position.
He began working the day shift as a letter carrier in October 1985 but began using drugs again,
after one year of abstinence, because his emotional condition decompensated after his father died
in October 1986. Appellant underwent outpatient chemical dependency treatment and was able
to work full duty as a letter carrier until his December 1987 employment injury.
Dr. Eichenauer stated that, given this history, appellant believed he was incapable of
functioning at the modified clerk job because it required him to work the 5:00 p.m. to 1:30 a.m.
shift which had previously caused him physical, psychological and emotional damage.
Therefore, his belief that the modified manual distribution clerk job was not suitable was
reasonable.
On November 13, 2009 appellant requested reconsideration and submitted a statement.
He stated that OWCP erred in its November 14, 1994 decision by failing to consider his
emotional as well as his physical condition in finding that his refusal to accept the modified job
offer was not justified. Appellant stated that the record contained a March 17, 1992 report from
Dr. Van Benten which indicated that he required treatment to help him improve his mental
stability, reduce his paranoid ideation and cope with anxiety, depression, sleep deprivation and
loss of self-esteem stemming from his December 1987 employment injury. He contended that
her report, together with Dr. Jenkins’ March 1992 report, established that he was emotionally
unable to perform the modified manual distribution clerk. Appellant also asserted that in
June 19, 1991 a chronic pain center indicated that he was experiencing a moderate degree of
depression. He stated that a September 26, 1991 rehabilitation report demonstrated that his state
of mind at the employing establishment evolved from pleasant and cooperative in 1990 to violent

4

and requiring psychological intervention in September 1991. Appellant also advised that he told
his vocational rehabilitation counselor that he was not medically able to work a night shift.
Lastly, he argued that OWCP erred in finding Dr. Belfie was his treating physician; he stated that
he had stopped treating with Dr. Belfie in 1991 and that when the job was offered in 1994,
Dr. Jenkins and Dr. Van Benten were his physicians of record.
In an order dated July 25, 2011, the Board set aside the February 17, 2010 decision,
finding that OWCP failed to consider the reports from Drs. Watson and Eichenauer. The Board
therefore remanded the case to OWCP to enable it to properly consider all the evidence he
submitted prior to the issuance of the February 17, 2010 decision.
By decision dated August 15, 2011, OWCP denied modification of the November 14,
1994 decision.2
On September 6, 2011 counsel requested an oral hearing.
By decision dated September 27, 2011, OWCP denied appellant’s hearing request on the
grounds that he had previously requested reconsideration and was not entitled to a hearing as a
matter of right. It exercised its discretion and determined that the issue in the case could be
addressed equally well through a reconsideration request and the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”3
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.5 To justify termination, OWCP must show that the
work offered was suitable and that appellant was informed of the consequences of his refusal to
accept such employment.6 In determining what constitutes “suitable work” for a particular
disabled employee, OWCP considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.7 Section 8106(c) will be
2

OWCP noted that appellant had filed another claim in 1997, case File No. xxxxxx822, for an emotional
condition due to factors of his employment beginning on or about 1983. This claim was denied as untimely filed.
3

5 U.S.C. § 8106(c).

4

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

5

20 C.F.R. § 10.517(a).

6

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
7

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

5

narrowly construed as it serves as a penalty provision which may bar an employee’s entitlement
to compensation based on a refusal to accept a suitable offer of employment.8
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.9 It is well established that OWCP must consider preexisting and subsequently
acquired conditions in the evaluation of suitability of an offered position.10
ANALYSIS -- ISSUE 1
OWCP terminated appellant’s monetary compensation effective November 14, 1994 on
the grounds that he refused an October 21, 1994 offer of suitable work. It found that the weight
of the medical evidence established that the modified manual distribution clerk position was
within the physical restrictions outlined by his treating physician, Dr. Belfie; these restrictions
were part of the initial February 5, 1992 job offer. In addition, OWCP stated that a copy of the
job description of the offered position had been forwarded to OWCP’s medical adviser for his
review. The position description described the duties and physical requirements of the offered
position, and the medical adviser had indicated that the offered position was reasonable and
acceptable. While appellant asserted that pain from his accepted lower back condition would
prevent him from performing the position, he submitted no evidence sufficient to establish that
he was unable to perform the duties of the job. Dr. Belfie merely stated in his March 2, 1992
report that he had been treating appellant for chronic low back pain syndrome stemming from his
accepted employment injury and that he had exhausted all options for diagnosis and treatment of
appellant’s condition.
In his March 19, 1992 report, Dr. Jenkins advised that appellant was in no mental
condition to return to work because of his failed back syndrome and his work-related paranoia.
However, he provided no analysis or medical rationale of how these conditions prevented
appellant from accepting the modified job offer. While appellant did testify at the 1992 hearing
that he could not accept the position because he did not believe that he could drive 30 minutes to
the jobsite and that he was not able to work nights based on his past history, he submitted no
medical evidence to support these assertions. OWCP properly determined that the job it offered
him on October 21, 1994 was suitable and within his physical capabilities.
After OWCP established that the offered work was suitable, the burden shifted to
appellant to show that her refusal was reasonable or justified.11 Appellant argued in his
November 19, 2009 statement that OWCP failed to consider his emotional inability to work
nights in its November 14, 1994 decision. As noted above, however, Dr. Jenkins’ 1992 report
was not sufficient to establish that the position was not suitable. The reports from Dr. Van
Benten which appellant referenced are not contained in the instant record. Appellant also
8

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

9

Gayle Harris, 52 ECAB 319 (2001).

10

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

11

M.S., 58 ECAB 328 (2007).

6

submitted a May 28, 2009 report from Dr. Eichenauer, who reviewed appellant’s work history
and opined that the 1994 job offer was not suitable because it required him to work nights.
Dr. Eichenauer related appellant’s contention that his 1981 job working the 10:00 p.m. to 6:30
a.m. shift resulted in sleeplessness, irritability, mood swings and a skin condition. He stated that
appellant began to use marijuana and freebase cocaine to cope with his depression issues.
Although appellant subsequently was transferred to the 5:00 p.m. to 1:30 a.m. shift he asserted
that he still experienced attendance problems, physical problems, difficulty with management
and coworkers, lack of sleep and drug use. He asserted that his physical and emotional
conditions and drug use were not ameliorated until he began working the day shift as a letter
carrier in October 1985. Based on this history, Dr. Eichenauer related that appellant believed he
was incapable of performing the modified clerk job because it required him to work the 5:00
p.m. to 1:30 a.m. shift which had previously caused him physical, psychological and emotional
harm. Lastly, appellant submitted the January 22, 2009 report from Dr. Watson, who related that
appellant was experiencing low back pain caused by lumbar disc dislocation stemming from the
December 1987 employment injury. Dr. Watson also noted that appellant had psychiatric
symptoms of anxiety, depression and sleeplessness, with a history of marijuana addiction and
dependency.
The Board finds that the reports from Drs. Eichenauer and Watson are insufficient to
establish that the offered position was unsuitable because they did not contain a probative,
rationalized medical opinion explaining why appellant could not perform the duties of the
modified position.12 Dr. Eichenauer based his opinion that appellant was incapable of
performing the 5:00 p.m. to 1:30 a.m. shift on the summarized history appellant provided
regarding his alleged difficulties with the 1981 night shift assignment. This summary is not
supported by any documentation in the record; nor is it substantiated by corroborating
witnesses.13 Thus it is unclear as to whether Dr. Eichenauer’s opinion was based on an accurate
history.14 Dr. Watson’s report does not contain any opinion regarding appellant’s ability to
work. Further, neither of these opinions were rendered contemporaneous with the 1994 job
offer.
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.15 The medical evidence appellant
submitted fails to establish that his refusal to accept the 1994 modified job offer was reasonable
or justified. Accordingly appellant has failed to meet his burden to provide evidence sufficient to
warrant modification of the November 14, 1994 termination decision. The Board finds that
OWCP properly terminated appellant’s monetary compensation due to his refusal of suitable
work and that he did not thereafter establish that his refusal of suitable work was justified.

12

S.S., 59 ECAB 315 (2008).

13

The Board notes that appellant’s references to alleged findings of an emotional condition on the part of the
vocational counselor and a pain management clinic do not constitute medical evidence under section 8101(2).
14

See Geraldine H. Johnson, 44 ECAB 745 (1993).

15

5 U.S.C. § 8106(c)(2).

7

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.16
Section 10.615 of the federal regulations implementing this section of FECA provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.17 The
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.18 A hearing is a review of an adverse
decision by an OWCP hearing representative. Initially, the claimant can choose between two
formats an oral hearing or a review of the written record. In addition to the evidence of record,
the claimant may submit new evidence to the hearing representative.19 A request for either an
oral hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which the hearing is sought.20 A claimant is not entitled to a hearing or a
review of the written record if the request is not made within 30 days of the date of the
decision.21 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.22 In such a case, it will determine whether a discretionary hearing should be
granted and, if not, will so advise the claimant with reasons.23
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.24
ANALYSIS -- ISSUE 2
On September 6, 2011 appellant requested an oral hearing and a review of the written
record. Because he had previously requested reconsideration under section 8128 of FECA, he
was not entitled to a hearing as a matter of right under section 8124(b)(1). OWCP exercised its
discretion and determined that the issue in the case could be pursued equally well through a
request for reconsideration and the submission of additional evidence. The Board finds that

16

Id. at § 8124(b)(1).

17

20 C.F.R. § 10.615.

18

Id. at § 10.616(a).

19

Supra note 17.

20

Supra note 18.

21

James Smith, 53 ECAB 188 (2001).

22

20 C.F.R. § 10.616(b).

23

James Smith, supra note 21.

24

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

8

OWCP did not abuse its discretion in denying appellant’s request for an oral hearing in its
September 27, 2011 decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
pursuant to 5 U.S.C. § 8106(a). The Board also finds that it did not abuse its discretion in
denying appellant’s request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the September 27 and August 15, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-2175
Issued: June 9, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant, through her attorney, filed a timely appeal from a July 13,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
her claim for a recurrence. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
October 6, 2009 causally related to her October 14, 2008 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 13, 2010 OWCP decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at
the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together
with a written request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

On appeal, appellant’s attorney contends that the July 13, 2010 OWCP decision was
contrary to fact and law.
FACTUAL HISTORY
On November 10, 2008 appellant, then a 51-year-old accounting technician, filed a
traumatic injury claim (Form CA-1) alleging that she injured her right hand, right wrist, right
arm and right leg in the performance of duty on October 14, 2008. She also filed a Form CA-7
claim for compensation for intermittent periods beginning January 4, 2009.
On February 23, 2009 OWCP accepted appellant’s claim for right bicipital tenosynovitis
and right gamekeeper’s thumb.
On April 27, 2009 OWCP notified appellant of her payment of compensation for the
period April 12 to May 9, 2009.3
On June 16, 2009 the employing establishment offered appellant a limited-duty position
as an accounting technician. The employing establishment noted that the job offer was
consistent with the medical recommendations of Dr. Walter Short, a Board-certified orthopedic
surgeon, who advised her to return full time on May 21, 2009. Appellant accepted the job offer
on June 18, 2009.
On October 13, 2009 appellant requested authorization for a consultation by
Dr. Thomas R. Haher, a Board-certified orthopedic surgeon, is concerning the right side of her
neck.
On October 14, 2009 OWCP authorized a one-time consultation with Dr. Haher, who was
to submit a medical report discussing the history of injury, diagnosis of all conditions, an opinion
regarding the relationship of appellant’s diagnosed conditions and her injury and work
restrictions.
On November 20, 2009 appellant filed a notice of recurrence. She alleged that she
started experiencing pain in her right arm and shoulder in September 2009. Appellant reported
that the recurrence started in and around October 6, 2009 and the pain became severe on
November 5, 2009.
Appellant submitted a November 9, 2009 medical report by Dr. Short, who reported that
she was doing increased writing and typing at work and complained of increasing pain in her
upper arm down into her wrist and hand. Dr. Short reported that she received a cortisone
injection in the spring of 2009 which gave her relief from the similar shoulder like symptoms

3

By decision dated July 22, 2009, OWCP found that appellant was not at fault in the creation of a $359.73
overpayment from May 27 through June 6, 2009. It denied waiver on two grounds: (1) appellant gave no basis to
consider waiver as she did not provide a completed Form OWCP-20 with supporting financial documentation; and
(2) she was still receiving benefits from OWCP. On November 27, 2009 OWCP notified appellant that it elected not
to pursue further collection actions under 4 C.F.R. § 103.4 which states that a claim may be compromised if the cost
of collection would not justify enforcing the collection of the full claim.

2

that have now recurred. He diagnosed shoulder and hand pain and opined that the incident
described by appellant was a competent medical cause of her injury.
By letter dated December 2, 2009, OWCP requested appellant to submit additional
evidence to support her claim and attached a recurrence development checklist for completion.
It gave her 30 days to respond to its inquiries.
In a November 20, 2009 medical report, Dr. Haher reported that appellant complained of
pain in her cervical spine and upper right extremity radiation. He noted that she underwent a
magnetic resonance imaging (MRI) scan, which showed evidence of a herniated disc at C5-6
which was compatible with her symptoms. Dr. Haher diagnosed appellant with herniated
cervical disc and opined that there was a causal relationship between the herniated disc and her
fall at work.
Appellant submitted a recurrence development checklist on December 10, 2009. She
reported that she had a cortisone shot in her supper right shoulder on May 21, 2009 and did not
experience pain again until September 2009. Appellant stated that she sustained no other injuries
prior to or since the date of original injury, October 14, 2008.
In a letter received by OWCP on December 28, 2009, appellant’s supervisor indicated
that appellant was transferred to the Funds Requirement Team at her own request in May 2009.
Appellant requested medical accommodation on October 22, 2009 in the form of being moved to
another team. She did not file the required paperwork for transfer, even after an extension was
issued and remained in the same team. Appellant called out sick on November 5, 2009
complaining of shoulder pain; she stated that she was going to see a physician and reopen her
workers’ compensation case. She did not return to work.
By decision dated January 7, 2010, OWCP denied appellant’s claim for a recurrence on
the grounds that the evidence did not establish that she sustained a recurrence of disability
commencing on October 8, 2009 causally related to the October 14, 2008 employment injury.
On January 21, 2010 appellant requested an oral hearing via telephone before OWCP’s
hearing representative.
Appellant submitted two radiologic reports dated October 2, 2009. An x-ray of her dorsal
spine revealed tilting of the lower thoracic spine to the right secondary to a moderate scoliosis of
the upper lumbar spine convex to the right. An x-ray for appellant’s cervical spine revealed
moderate disc narrowing at C5-6 and C6-7, tilting of the cervical spine to the left and mild
straightening of the normal lordotic curvature.
In an October 14, 2009 medical report, Dr. Richard Zogby, a Board-certified orthopedic
surgeon, indicated that appellant complained of cervical spine pain and did not recall any
specific inciting injury or event. He diagnosed cervical spondylosis and opined that it was not
related to her work injury to her upper extremity.
In a November 6, 2009 MRI scan report, Dr. Michael W. Fries, a Board-certified
radiologist, diagnosed degenerative changes in the disc of appellant’s cervical spine with
posterior changes, most prominent at C5-7.
3

In a December 15, 2009 medical report, Dr. Short indicated that appellant’s pain in the
right side of her neck and right shoulder began for no apparent reason. He reported that her
complaints of a right upper extremity radiculopathy appeared to have a relevant cervical
component and a more peripheral component involved as well.
A telephonic hearing was conducted by OWCP’s hearing representative on
April 26, 2010. Appellant testified that her permanent-duty assignment as an accounting
technician required more writing and typing than the job wherein she sustained an employment
injury on October 14, 2008.
By decision dated July 13, 2010, OWCP denied appellant’s claim for a recurrence on the
grounds that the factual and medical evidence submitted was insufficient to establish that she
sustained a recurrence of disability commencing on October 6, 2009 causally related to the
October 14, 2008 employment injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.6
ANALYSIS
On February 23, 2009 OWCP accepted appellant’s claim for right bicipital tenosynovitis
and right gamekeeper’s thumb. The issue on appeal is whether she has established a recurrence
of disability commencing on October 6, 2009 as a result of her October 14, 2008 employment
injury. Although appellant testified that her limited-duty job required more writing and typing
4

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

5

Id.

6

See Joseph D. Duncan, 54 ECAB 471, 472 (2003); Terry R. Hedman, 38 ECAB 222, 227 (1986); A.M., Docket
No. 09-1895 (issued April 23, 2010).

4

than the job wherein she sustained the October 14, 2008 employment injury, she did not submit
evidence to show that the requirements of her job changed from the time she began work. She
therefore has the burden of proof to show a change in the nature and extent of her injury-related
condition.
In a November 9, 2009 medical report, Dr. Short reported that appellant’s symptoms
from her October 14, 2008 employment injury had recurred. He diagnosed shoulder and hand
pain and opined that the incident described by her was a competent medical cause of her injury.
In a December 15, 2009 medical report, Dr. Short indicated that appellant’s shoulder pain began
for no apparent reason. He did not provide a report establishing a spontaneous change in the
accepted employment-related injuries. While Dr. Short indicated knowledge of a recurrence of
disability at work, he did not provide a well-reasoned medical narrative report explaining how
factors of appellant’s federal employment materially worsened or aggravated her right bicipital
tenosynovitis and right gamekeeper’s thumb conditions to the point where she could no longer
perform the function of her duties causing her to be totally disabled for work. Therefore,
appellant met her burden of proof.
OWCP did not accept a cervical condition causally related to appellant’s October 14,
2008 employment injury prior to the filing of her claim on November 20, 2009. Drs. Zogby,
Haher and Short provided medical reports regarding a cervical condition. As OWCP had not
accepted a cervical condition as employment related, appellant had the burden of proof to
establish a nexus between cervical condition and the October 14, 2008 employment injury.7
Appellant has failed to do so. The issue here is a recurrence of accepted medical conditions. She
has not met her burden of proof.
The Board finds that the evidence submitted by appellant does not provide adequate
rationale to show a change in the nature and extent of the injury-related condition of
October 14, 2008. Therefore, appellant did not meet her burden of proof to establish a
recurrence of disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden to establish that she sustained a
recurrence of disability commencing October 6, 2009 causally related to her October 14, 2008
employment injury.

7

See Jaja K. Asaramo, 55 ECAB 200 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
M.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, New Cumberland, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0440
Issued: July 26, 2016

Case Submitted on the Record

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

JURISDICTION
On January 11, 2016 appellant filed a timely appeal of a September 17, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
April 20, 2015, causally related to his February 15, 2013 injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with his appeal to the Board. The Board, however,
cannot consider this evidence, however, as its review of the case is limited to the evidence of record which was
before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1); see Steven S. Saleh, 55 ECAB 169 (2003).

FACTUAL HISTORY
OWCP accepted that on February 15, 2013 appellant, then a 28-year-old, materials
handler, twisted his right ankle when stepping off of a crane while in the performance of duty.
February 15, 2013 right ankle x-rays showed extensive soft tissue swelling over the right lateral
malleolus but no acute fracture. OWCP accepted right ankle sprain.
On June 24, 2013 appellant’s physician, Dr. Robert Kaneda, an orthopedic surgeon and
osteopath, released him from care to be seen on an as needed basis. Appellant returned to
regular duty that day.3
On June 12, 2015 appellant filed a claim for a recurrence of disability (Form CA-2a)
commencing April 20, 2015. He explained that he had “constant overwhelming pain in his right
ankle when lifting, squatting, and prolonged walking.” Appellant indicated that he was on light
duty with restricted hours and that the recurrence occurred while he was leaning forward,
holding 35 to 40 pounds of material. He related this to his original injury because his original
injury still existed and was permanent. Appellant returned to work on June 8, 2015. The
employing establishment indicated that it had accommodated him after the original injury and
noted multiple incidents where he had injured himself outside work. OWCP received additional
medical evidence.
In a September 16, 2014 report, Dr. Robert A. Gallo, a Board-certified orthopedic
surgeon, determined that appellant had been experiencing right foot and ankle pain ongoing since
February 15, 2013 due to a work accident.
In a January 14, 2015 report, Dr. David S. Todoroff, a podiatrist, noted that appellant
presented for right ankle pain, discomfort, and burning which had been present for several years.
He related that it “occurred suddenly following a work injury” and the symptoms worsened since
the onset. Dr. Todoroff advised that appellant reported his symptoms as a moderate burning and
shooting pain. Appellant indicated that it radiated through the calf, occurred constantly, and was
aggravated with activity, excessive use, standing and weight bearing. Dr. Todoroff examined
appellant and diagnosed: mononeuritis lower limb, other, tenosynovitis foot and ankle,
arthropathy unspecified ankle and foot; enthesosoapthy ankle and tarsus other; pain in the limb.
OWCP received several reports from Dr. Elizabeth A. Hinton, a podiatrist. In a
March 13, 2015 report, Dr. Hinton noted that appellant presented with severe right ankle pain.
She advised that his pain was present for several years and occurred suddenly after a work
3

On June 21, 2013 OWCP accepted appellant’s claim for a recurrence for additional medical care based on
April 16, 2013 emergency room notes. Appellant received intermittent wage-loss benefits for physical therapy
appointments from April 7 to July 13, 2013. (CQ) On January 30, 2014 he had right ankle arthroscopic
reconstructive ligament surgery. However, an OWCP medical adviser opined that it was not medically necessary or
related to the work injury and in a March 13, 2014 decision, OWCP denied a recurrence claim and authorization for
surgery. On September 8, 2014 it denied appellant’s claim for compensation from January 7 through June 12, 2014.
On December 29, 2014 an OWCP hearing representative affirmed the March 13, 2014 decision. On April 24, 2015
appellant’s then counsel requested reconsideration of the December 29, 2014 decision. On May 14, 2015 OWCP
denied modification of the prior decision. It noted that if medical evidence indicated that there was a change in
appellant’s job duties around August 6, 2013 which caused a change in his medical condition, appellant could file a
new occupational disease claim. The periods adjudicated in these OWCP decisions are not before the Board on the
present appeal.

2

injury. Appellant related that his pain was aggravated by activity, standing, and weight bearing.
Dr. Hinton noted that January 2014 nerve conduction velocity (NCV) studies showed nerve
damage in the ankle. Appellant reported that the ankle pain became “much worse in the past two
weeks due to shoveling snow.” Dr. Hinton diagnosed mononeuritis lower limb, foot and ankle
tenosynovitis, unspecified ankle and foot arthropathy, enthesosoapthy ankle and tarsus, and limb
pain. In a March 27, 2015 report, she saw appellant and again noted that the ankle pain became
“much worse in the past two weeks due to shoveling snow.” Dr. Hinton advised that treatment
options were discussed and medication was prescribed. She recommended light duty.
In an April 23, 2015 report, Dr. Hinton noted that appellant was seen for a right ankle
injury sustained in 2013. She advised that it was a permanent injury that caused permanent pain.
Dr. Hinton noted that appellant was being seen by a pain management clinic and occasionally
might have a flare up that required him to be off his feet. On April 27, 2015 she noted seeing
appellant for right ankle pain and discomfort and burning. Dr. Hinton indicated that the pain had
been present for several years and his symptoms were worsening. The symptoms included
moderate burning, sharp and shooting pain. Appellant related that it radiated up the calf
constantly, and was aggravated by activity, excessive use, standing and weight bearing.
Dr. Hinton noted that appellant was mowing the grass over the weekend and now had severe
right ankle pain. Findings included a normal gait, no swelling in the feet, and moderate right
subtalar joint tenderness. Dr. Hinton diagnosed arthropathy unspecified of the ankle and foot,
tenosynovitis of the foot and ankle, enthesopathy of the ankle and tarsus unspecified, tarsal
tunnel syndrome and pain in the limb. She noted that appellant was advised to discuss a new
brace for the right ankle.
On April 28, 2015 Dr. Terry Clarke, a podiatric surgeon and associate of Dr. Hinton,
noted that appellant presented with severe right ankle pain. He advised that appellant’s pain had
been present for several years and occurred suddenly after a work injury. Appellant related that
his pain was aggravated by activity, standing, and weight bearing. Dr. Clarke repeated
appellant’s prior history as stated in Dr. Hinton’s reports, including that his ankle pain became
much worse due to shoveling snow. Appellant related that on April 27, 2015, he was mowing
grass and now had severe right ankle pain. Dr. Clarke examined appellant and diagnosed limb
pain, unspecified arthropathy of the ankle and foot, ankle sprains and strains, and unspecified
enthesopathy.
A May 19, 2015 magnetic resonance imaging (MRI) scan read by Dr. Joachim J. Huerter,
a Board-certified diagnostic radiologist, revealed a focal area of narrow edema and bone marrow
contusion in the medial aspect of the talus. There was no other abnormality.
In a June 8, 2015 report, Dr. Clarke repeated appellant’s prior history of right ankle pain
after a work injury and noted current complaints of ankle pain that interrupted his sleep the
previous night. Appellant related that he walked a lot on the previous day and felt that this
irritated his ankle. Dr. Clarke examined appellant and diagnosed foot and ankle tenosynovitis in
addition to his prior diagnoses. He indicated that they discussed reducing appellant’s hours at
work until he could see another physician because of the pain.
In a June 16, 2015 note, Dr. Clarke requested that appellant be excused from work on
June 9, 10 and 12, 2015, because he was unable to bear weight on the foot and ankle. He
recommended light-duty restrictions and referenced that appellant was being seen for an ankle
3

surgery consultation on June 23, 2015. On June 24, 2015 Dr. Clarke noted appellant’s history,
provided results on examination and repeated the prior diagnoses.
In a June 23, 2015 report, Dr. Bradley Lamm, a podiatrist, noted appellant’s history. He
examined appellant and diagnosed right ankle pain following injury in 2013 and subsequent
surgery in 2014, right ankle instability and weakness, and neuritis in the right sural nerve and
intermediate dorsal cutaneous nerve.
OWCP advised appellant, by letter dated July 22, 2015, of the evidence needed to
establish his claim for a recurrence and afforded him 30 days to submit the required evidence.
In a July 24, 2015 report, Dr. Clarke noted appellant’s history. He explained that
appellant had presented for follow up of his right ankle pain and that there were no changes in
his symptoms rating his overall pain level at 7/10. Dr. Clarke opined that appellant had never
fully recovered from the February 15, 2013 injury, which is why he sent appellant to a specialist.
He repeated his previous diagnoses.
An August 28, 2015 right leg MRI scan read by Dr. Scott W. Wise, a Board-certified
diagnostic radiologist, revealed a suspected tear of the anterior talofibular ligament, chronicappearing sprain of the anterior tibiofibular ligament, and a mild decrease in bone bruises
involving the medial aspect of the talus and lateral malleolus.
By decision dated September 17, 2015, OWCP denied appellant’s claim for a recurrence
of disability because the evidence was insufficient to establish a material change or worsening of
his accepted work-related conditions.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.4
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is causally related to the
accepted injury. This burden requires furnishing medical evidence from a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and who supports that conclusion with
sound medical reasoning.5
ANALYSIS
OWCP accepted appellant’s claim for sprain of the right ankle. Appellant returned to
regular duty on June 24, 2013. He subsequently claimed a recurrence of total disability
beginning April 20, 2015.
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

4

The Board finds that appellant has failed to meet his burden of proof to establish a
recurrence of disability. There is no rationalized medical opinion of record which
sufficiently relates the current disability and medical condition to the February 15, 2013
accepted condition.
OWCP received a series of reports from Drs. Hinton and Clarke. On March 13, 2015
Dr. Hinton advised that appellant had severe right ankle pain that was present for several years
after a work injury. She related that appellant reported that the ankle pain became “much worse
in the past two weeks due to shoveling snow.” Dr. Hinton diagnosed mononeuritis lower limb,
foot and ankle tenosynovitis, unspecified ankle and foot arthropathy, enthesosoapthy ankle and
tarsus, and limb pain. She saw appellant on April 23, 2015 and again noted that he was seen for
a right ankle injury sustained in 2013 and advised that it was a permanent injury that caused
permanent pain. Dr. Hinton advised that he might occasionally have a flare up that required him
to be off his feet. On April 27, 2015 she advised that appellant was mowing the grass over the
weekend and now had severe right ankle pain. Dr. Hinton examined him and diagnosed tarsal
tunnel syndrome in addition to previous diagnoses. Dr. Clarke, on April 28, 2015, noted
appellant’s work injury history but also related the history of severe right ankle pain on April 27,
2015 after he mowed grass. On June 8, 2015 he noted that appellant had walked a lot on the
previous day and felt that this irritated his ankle. Dr. Clarke diagnosed limb pain, ankle and foot
arthropathy, ankle sprains and strains, tenosynovitis, and enthesopathy. On July 24, 2015 he
stated that appellant had never recovered from his work injury but provided no rationalized
opinion connecting the current conditions to the accepted right ankle sprain. Where an employee
claims that a condition not accepted or approved by OWCP, he or she bears the burden of proof
to establish that the condition is causally related to the employment injury.6 Neither Dr. Hinton
nor Dr. Clarke explained how these diagnosed conditions were related to the accepted right ankle
sprain. Furthermore, the reports of Drs. Hinton and Clarke reflect intervening injuries associated
with snow shoveling, grass cutting, and walking. Thus, these intervening injuries break the chain
of causation and warrant against a finding of a spontaneous change in his accepted right ankle
sprain.
Other medical reports of record are of limited probative value as they either predate the
claimed recurrence of disability or do not specifically address how any disability beginning
April 20, 2015 was due to a spontaneous change in the accepted right ankle sprain. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.7
Accordingly, the Board finds that appellant has not met his burden of proof in this case as
he has not submitted sufficiently reasoned medical opinion explaining why his claimed
recurrence of disability beginning April 20, 2015 was caused or aggravated by the February 15,
2013 employment injury.

6

Jaja K. Asaramo, 55 ECAB 200 (2004).

7

See J.F., Docket No. 09-1061 (issued November 17, 2009).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability commencing April 20, 2015 causally related to his February 15, 2013 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 17-1411
Issued: June 7, 2018

Case Submitted on the Record

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

JURISDICTION
On June 14, 2017 appellant, through counsel, filed a timely appeal from a March 20, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include bilateral sacroiliitis as a result of an accepted
1

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

5 U.S.C. § 8101 et seq.

May 7, 2014 lumbar injury and authorized lumbar surgery; (2) whether OWCP abused its
discretion in denying appellant’s request for authorization of bilateral sacroiliac surgery; and
(3) whether appellant met his burden of proof to establish a recurrence of disability commencing
September 29, 2015 causally related to an accepted May 7, 2014 lumbar injury.
FACTUAL HISTORY
OWCP, under File No. xxxxxx600, accepted that on May 7, 2014 appellant, then a 35year-old mail handler, stepped down from a piece of equipment and turned quickly to the left,
which caused a right lumbar strain. Under File No. xxxxxx182, OWCP earlier accepted that on
March 22, 2013 appellant aggravated a right-sided L4-5 disc herniation while pulling mail
containers.3 Appellant stopped work on May 7, 2014. OWCP paid wage-loss compensation for
temporary total disability beginning June 23 through September 4, 2014.
Dr. Roy D. Clemens, an attending Board-certified family practitioner, diagnosed S1
tenderness with radiculopathy in a May 24, 2014 report. On May 28, 2014 he noted appellant’s
history of prior lumbar surgery. Dr. Clemens held appellant off work.
A July 23, 2014 magnetic resonance imaging (MRI) scan demonstrated L4-5 and L5-S1
degeneration, a grade 1 L4-5 anterolisthesis, compensatory retrolisthesis at L5-S1, a mild
concavity to the right, lateral recess and neural foraminal stenosis at L5 secondary to a broad-based
disc protrusion, with retrolisthesis and facet arthropathy.
In a July 24, 2014 report, Dr. James B. Blankenship, an attending Board-certified
neurosurgeon, diagnosed lumbar stenosis caused by the May 7, 2014 employment injury,
superimposed on a history of the March 22, 2013 employment-related lumbar injury.
Dr. Robert D. Cannon, a pain management physician, noted in an August 19, 2014 report that a
series of lumbar facet injections in October 2013 relieved appellant’s symptoms at that time. He
administered bilateral L4-5 and L5-S1 facet injections on September 24, 2014.
Appellant returned to full-time light duty in September 2014. In November 2014,
appellant’s physicians reduced his schedule and physical demand level to part-time sedentary work
in November 2014. As of December 4, 2014, appellant worked a part-time, intermittent schedule.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls.
On January 20, 2015 OWCP expanded the acceptance of appellant’s claim to include
displacement of a lumbar intervertebral disc without myelopathy.
Appellant underwent two authorized lumbosacral surgeries on February 17, 2015.
Dr. Blankenship performed a bilateral L4-5 discectomy, combined posterolateral interbody
arthrodesis at L4-5 and L5-S1, open reduction of L4-5 anterolisthesis, L4-5 pedicular fixation with
interbody polyetheretherketone (PEEK) implantation, and allograft bone harvest. He then
partnered with Dr. Ronald Mullis, a Board-certified general surgeon, to perform an L5-S1
osteotomy to correct a sagittal and coronal plan imbalance.

3

OWCP combined the two files with File No. xxxxxx182 serving as the master file.

2

OWCP commenced compensation for total disability on the supplemental rolls
commencing February 21, 2015, and on the periodic rolls commencing May 31, 2015.
In a June 1, 2015 report, Dr. Blankenship noted bilaterally positive findings on provocative
sacroiliac tests. On June 11, 2015 he diagnosed postlaminectomy syndrome. Dr. Blankenship
held appellant off work.4 Dr. Blankenship opined in an August 31, 2015 report that appellant had
attained maximum medical improvement. In a September 2, 2015 report, he noted marked
bilateral S1 joint pain, with positive 5/5 results on all five provocative sacroiliac tests.
Dr. Blankenship noted that appellant experienced significant symptom reduction after the June 30,
2015 bilateral sacroiliac injections, which confirmed the presence of sacroiliitis. He requested
authorization for bilateral sacroiliac fusions.
On September 22, 2015 appellant returned to full-time modified work.5 He claimed that
on September 29, 2015, while on light duty, he reinjured his lumbar spine while reaching for a
bundle of mail. Appellant stopped work on September 29, 2015. OWCP developed this claim
under OWCP File No. xxxxxx517.
In an October 1, 2015 report, Dr. Blankenship opined that x-ray findings were not as
reliable in diagnosing sacroiliac joint dysfunction as clinical responses to Gaenslen, thrust,
distraction, compression, and flexion, abduction, and external rotation (Faber) tests. He noted that
appellant had a strongly positive response to all five provocative tests, in addition to symptomatic
relief with sacroiliac joint injections, which established a diagnosis of sacroiliac joint dysfunction.
In reports from October 10 to 30, 2015, Dr. Clemens related appellant’s account of a new
September 29, 2015 lumbar injury when he reached or twisted at work. He diagnosed bilateral
low back pain and offered work restrictions. Dr. Clemens provided periodic progress reports.6
On November 8, 2015 OWCP obtained a second opinion report from Dr. Alice M.
Martinson, a Board-certified orthopedic surgeon, to determine whether appellant sustained
consequential bilateral sacroiliitis necessitating bilateral sacroiliac fusion. Dr. Martinson reviewed
the medical record and a statement of accepted facts (SOAF). On examination, she observed right
quadriceps weakness and atrophy. She obtained lumbar x-rays showing postsurgical changes.
Dr. Martinson diagnosed status post L4-5 and L5-S1 fusion, and L4 radiculopathy. She opined
that appellant did not exhibit objective signs of sacroiliitis as his Faber test was negative.
Dr. Martinson found that appellant did not require bilateral sacroiliac joint fusion.

4

Dr. Cannon administered bilateral sacroiliac injections on June 30, 2015. A July 14, 2015 functional capacity
evaluation (FCE) demonstrated that appellant could perform work at a light-duty demand level.
5
The employing establishment indicated that OWCP denied the claim under File No. xxxxxx517 on
November 9, 2015. This claim is not before the Board on the present appeal.
6

November 18, 2015 x-rays showed normal sacroiliac joints without evidence of joint ankylosis or erosion. A
February 11, 2016 lumbar MRI scan demonstrated status post L4-5 and L5-S1 arthrodesis with PEEK implantation
and Brigade lumbosacral fixation.

3

In February 26, 2016 reports, Dr. Clemens noted March 2013 and May 2014 employmentrelated lumbar injuries, with a reinjury on September 29, 2015. He opined that appellant’s
“recurrent back problems” originated with the March 2013 employment injury.
On February 29, 2016 appellant filed a notice of recurrence (Form CA-2a) claiming
disability commencing September 29, 2015. He attributed the claimed recurrence to reaching
forward into a wire cage to retrieve a bundle of mail. Appellant had an immediate onset of sharp
lumbar pain radiating into both hips and his right leg. The employing establishment noted that
appellant filled out an accident report for a September 29, 2015 traumatic incident, and that he had
previously filed a traumatic injury claim (Form CA-1) which OWCP had denied.
On March 3, 2016 appellant filed claims for compensation (Form CA-7) for the period
October 3, 2015 through February 19, 2016.
In a March 10, 2016 letter, OWCP requested that appellant provide additional evidence in
support of his claim, including a detailed explanation of the claimed September 29, 2015
employment incident for which he had filed a new traumatic injury claim. It afforded him 30 days
to submit such evidence.
Appellant responded by March 22, 2016 statement, in which he explained that on
September 29, 2015 while reaching for a bundle of mail in a wire cage, he “overextended forward
in a slight bent and twisted position,” and experienced immediate “sharp piercing pain” into his
hips and right lower extremity.
Dr. Clemens provided March 18 and 22, 2016 letters, in which he opined that the claimed
September 29, 2015 employment incident was a reinjury superimposed on preexisting lumbar
injuries.
OWCP found a conflict of medical opinion between Dr. Martinson, for OWCP, and
Dr. Blankenship, for appellant, as to whether appellant sustained bilateral sacroiliitis related to the
accepted lumbar injuries, and whether he required bilateral sacroiliac fusions. To resolve the
conflict, OWCP selected Dr. Michael S. Clarke, a Board-certified orthopedic surgeon, as impartial
medical examiner.
Dr. Clarke submitted a December 29, 2015 report in which he reviewed the medical record
and a SOAF. On examination, Dr. Clarke observed an altered gait, right thigh atrophy, positive
straight leg and cross leg tests, an equivocal Faber test, and no significant pain to palpation of the
sacroiliac joints. He opined that the “exact origin of [appellant’s] low back pain [was] not
determined but probably is discogenic.” Dr. Clarke found no “significant diagnostic findings
supporting the diagnosis of sacroiliitis.” He explained that there was no indication for performance
of sacroiliac fusions.
By decision dated April 20, 2016, and reissued April 25, 2016, OWCP denied appellant’s
claim for bilateral sacroiliitis, authorization for bilateral sacroiliac fusions, and for a recurrence of
disability commencing September 29, 2015. It accorded Dr. Clarke the special weight of the
medical evidence regarding the lack of causal relationship between the claimed sacroiliitis and the
accepted lumbar injury. OWCP further found that appellant had not sustained a recurrence of
disability as he clearly described a new September 29, 2015 injury. This new employment incident
4

constituted an intervening cause, breaking the chain of causation from the accepted May 7, 2014
lumbar injuries.
In a May 13, 2016 letter, appellant, through counsel, requested a telephonic hearing
conducted by a representative of OWCP’s Branch of Hearings and Review. At the hearing, held
January 25, 2017, appellant reiterated that, on September 29, 2015, he experienced the immediate
onset of lumbar pain when he reached forward to retrieve mail from a wire cage. Counsel
contended that this should not be considered a new injury.
Following the hearing, appellant submitted additional medical evidence. In an April 1,
2013 report, Dr. Clemens noted that appellant had lumbar pain following the March 22, 2013
employment injury. Dr. Blankenship related appellant’s ongoing lumbar symptoms in reports
from August 22, 2013 through September 8, 2016, exacerbated by May 7, 2014, and
September 29, 2015 injuries.7 He diagnosed lumbar stenosis, worsening low back pain with
radiation into both hips, and fibromyalgia.8
Appellant also provided his June 30, 2016 letter in which he requested reasonable
accommodations from the employing establishment. On September 14, 2016 he claimed
compensation (Form CA-7) for the period October 3, 2015 to September 2, 2016.9
By decision dated March 20, 2017, an OWCP hearing representative affirmed OWCP’s
April 25, 2016 decision. The hearing representative found that Dr. Clarke provided sufficient
medical rationale to establish that appellant had not sustained bilateral sacroiliitis and that the
sacroiliac fusion surgeries requested by Dr. Blankenship were not necessary to cure or give relief
to the accepted lumbar injuries. The hearing representative further found that appellant failed to
establish that he sustained a recurrence of disability commencing September 29, 2015 as he instead
alleged and described a new traumatic injury.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.10
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
7

A November 28, 2016 FCE demonstrated that appellant could perform work at the light physical demand level.

8

An August 16, 2016 lumbar MRI scan showed postsurgical changes, with adjacent segment facet arthropathy,
spondylosis, and multilevel facet arthropathy. A December 27, 2016 lumbar MRI scan demonstrated mild foraminal
narrowing at L5-S1 and lumbosacral epidural lipomatosis.
9

In a notice dated December 29, 2015 and finalized February 22, 2017, OWCP found a $2,677.24 overpayment of
compensation as appellant received compensation for total disability on the periodic rolls from September 22 to
October 17, 2015 after he returned to full-time work with no loss of wages.
10

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

opinion evidence supporting such a causal relationship.11 The opinion of the physician must be
based on a complete factual and medical background of the claimant, 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.12
Neither the mere fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by employment
factors or incidents is sufficient to establish causal relationship.13
Section 8123(a) of FECA provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third physician
shall be appointed to make an examination to resolve the conflict.14 When there are opposing
medical reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.15
In situations where there are opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.16
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the claimed
sacroiliac condition was causally related to the May 7, 2014 employment injury.17
In support of his claim, appellant submitted September 2 and October 1 2015 medical
reports from Dr. Blankenship who described the accepted March 22, 2013 and May 7, 2014
lumbar injuries and opined that appellant’s responses to provocative clinical tests and sacroiliac
injections confirmed bilateral sacroiliac joint dysfunction. OWCP obtained the November 8, 2015
second opinion report from Dr. Martinson who opined that appellant did not exhibit objective signs
of sacroiliitis and did not require fusion surgery.
OWCP properly found that this created a conflict in the medical opinion evidence as to
whether appellant sustained bilateral sacroiliitis causally related to the accepted lumbar injuries,
and whether he required bilateral sacroiliac fusions. To resolve the conflict, it referred appellant
11

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

12

James Mack, 43 ECAB 321 (1991).

13

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

14

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

15

Delphia Y. Jackson, 55 ECAB 373 (2004).

16

Anna M. Delaney, 53 ECAB 384 (2002).

17

T.K., Docket No. 16-1543 (issued March 13, 2017).

6

to Dr. Clarke who, in a December 29, 2015 report, reviewed appellant’s history and noted findings
that included no “significant diagnostic findings supporting the diagnosis of sacroiliitis.” The
Board finds that Dr. Clarke’s opinion, that there was no clinical evidence that appellant had
sacroiliitis, is well reasoned and based on a proper factual background such that his opinion is
entitled to special weight.18
Thereafter, appellant did not submit any rationalized medical evidence sufficient to
overcome the opinion of Dr. Clarke or to create a new medical conflict.
On appeal appellant asserts that OWCP’s March 20, 2017 decision is contrary to fact and
law. As noted, the impartial medical examiner, Dr. Clarke, opined that appellant did not have
objective signs of sacroiliitis. As such, the Board finds that appellant has not met his burden of
proof to establish additional work-related conditions causally related to the accepted May 7, 2014
employment injury.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician who OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree, or the period of disability or
aid in lessening the amount of monthly compensation.20 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.21
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible, in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.22 In order to be entitled to
reimbursement for medical expenses, a claimant must establish that the expenditures were incurred
for treatment of the effects of an employment-related injury by submitting rationalized medical
evidence that supports such a connection and demonstrates that the treatment is necessary and

18

Supra note 16.

19

M.S., Docket No. 17-0105 (issued December 7, 2017); Patricia J. Bolleter, 40 ECAB 373 (1988).

20

5 U.S.C. § 8103(a).

21

See Dale E. Jones, 48 ECAB 648, 649 (1997).

22

Dr. Mira R. Adams, 48 ECAB 504 (1997).

7

reasonable.23 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.24
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for bilateral sacroiliac fusions.25
OWCP accepted appellant’s traumatic injury claim for a right lumbar strain and
displacement of a lumbar intervertebral disc without myelopathy. It authorized February 17, 2015
lumbar surgeries, including a bilateral L4-5 discectomy and L4-5 and L5-S1 fusions.
Appellant requested that OWCP authorize the September 2, 2015 request from
Dr. Blankenship to perform bilateral sacroiliac fusions. Dr. Blankenship indicated that the
proposed surgery would relieve appellant’s symptoms. OWCP, as noted, obtained the
November 8, 2015, second opinion report from Dr. Martinson who opined that appellant did not
require fusion surgery. OWCP properly found that this created a conflict in the medical evidence26
and referred appellant to Dr. Clarke to resolve the conflict. In his December 29, 2015 report,
Dr. Clarke reviewed appellant’s history and reported findings. He opined that there was no clinical
indication that the proposed sacroiliac fusions were medically necessary as there was no objective
evidence of any sacroiliac dysfunction.27 As Dr. Clarke’s opinion was based on his review of the
medical record and his clinical findings, including no objective evidence of any sacroiliac
dysfunction, the Board finds that his opinion is well reasoned and based upon a proper factual
background such that it is entitled to special weight.28
Thereafter, appellant did not submit any rationalized medical evidence sufficient to
overcome the opinion of the Dr. Clarke or to create a new medical conflict.
Consequently, the Board finds that OWCP properly denied appellant’s request for surgery.
On appeal counsel contends that OWCP’s March 20, 2017 decision is contrary to fact and
law. As noted above, the impartial opinion of Dr. Clarke advised that the proposed sacroiliac
fusions were not medically necessary.

23

See Debra S. King, 44 ECAB 203 (1992).

24

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

25

A.W., Docket No. 16-1812 (issued March 15, 2017).

26

See supra note 14.

27

R.T., Docket No. 15-1760 (issued January 4, 2016).

28

See supra note 16.

8

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 3
OWCP’s implementing regulations define a “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.29 This term also means an inability to
work that takes place when a light-duty assignment made specifically to accommodate an
employee’s physical limitations due to his or her work-related injury is withdrawn or when the
physical requirements of such an assignment are altered such that they exceed the employee’s
physical limitations.30 Appellant has the burden of establishing that there was no medically
appropriate light duty available for the claimed period.31
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.32 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the disabling condition is causally related to employment
factors and supports that conclusion with sound medical reasoning.33 An award of compensation
may not be made on the basis of surmise, conjecture, speculation, or on appellant’s unsupported
belief of causal relation.34
The Board will not require OWCP to pay compensation for disability without any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.35

29

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
30

J.F., 58 ECAB 124 (2006).

31

Id.

32

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

33

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

34

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

35

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

9

ANALYSIS -- ISSUE 3
Under OWCP File No. xxxxxx182, OWCP had previously accepted a March 22, 2013
aggravation of an L4-5 right-sided disc herniation. In the present claim, File No. xxxxxx600,
OWCP accepted a May 7, 2014 right lumbar sprain and displacement of a lumbar intervertebral
disc without myelopathy. To meet his burden of proof to establish a recurrence of disability
commencing September 29, 2015, while in light-duty status, appellant must establish either that
the accepted injuries had worsened such that he was medically unable to perform light duty or that
his modified position had been withdrawn.36 Instead, appellant alleged that he sustained a new
traumatic injury on September 29, 2015.
Appellant filed a new traumatic injury claim (Form CA-1) under OWCP File No.
xxxxxx517 for a lumbar injury sustained on September 29, 2015 when he reached into a container
to retrieve a bundle of mail. The employing establishment confirmed that the incident occurred as
alleged.
After OWCP denied the traumatic injury claim (Form CA-1) under OWCP File No.
xxxxxx517, appellant filed a claim for recurrence of disability (Form CA-2a) under the present
claim on February 29, 2016. He argued that the September 29, 2015 employment incident should
not be considered a new injury. This assertion, however, is contrary to the account appellant
provided to his attending physicians. Dr. Clemens, an attending Board-certified family
practitioner, described the September 29, 2015 reaching incident in his reports from October 10
to 30, 2015. Dr. Blankenship also noted the new September 29, 2015 event in his reports, and
opined that the immediate onset of sharp, radiating lumbar pain demonstrated a new injury.
The Board finds that the September 29, 2015 employment incident was an intervening
cause, breaking the chain of causation from the accepted lumbar injuries.37 Therefore, appellant
has not met his burden of proof to establish that the claimed disability for work on and after
September 29, 2015 was causally related to the accepted lumbar injuries.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include bilateral sacroiliitis as a result of an accepted
lumbar injury and authorized lumbar surgery. The Board further finds that OWCP did not abuse
its discretion by denying appellant’s request to authorize bilateral sacroiliac surgery. The Board
36

Albert C. Brown, supra note 32.

37

A.W., Docket No. 17-0638 (issued August 29, 2017) (appellant claimed a recurrence of total disability
commencing caused by lifting and pushing at work; the Board found that she implicated a new injury, an intervening
cause breaking the chain of causation from the prior employment injury; the new injury effectively negated appellant’s
recurrence claim).

10

further finds that appellant failed to meet his burden of proof to establish a recurrence of disability
commencing September 29, 2015 causally related to an accepted May 7, 2014 lumbar injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated March 20, 2017 is affirmed.
Issued: June 7, 2018
Washington, DC

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

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

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

11