United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Norfolk, VA, Employer
__________________________________________

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

Docket No. 19-1822
Issued: June 4, 2020

Case Submitted on the Record

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

JURISDICTION
On August 23, 2019 appellant filed a timely appeal from a July 11, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs.1 As more than 180 has days elapsed from
OWCP’s last merit decision, dated December 20, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this claim.3
1

The Board notes that appellant also sought to appeal from a purported February 27, 2019 decision of OWCP.
There is no final adverse merit decision of OWCP of record dated February 27, 2019. The letter from OWCP dated
February 27, 2019, stating that appellant’s request for authorization could not be approved at that time pending further
medical development, constitutes an informational letter. The Board’s jurisdiction is limited to reviewing final adverse
decisions of OWCP issued under FECA. See 20 C.F.R. § 501.3(a).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence to OWCP following the July 11, 2019 decision, and
on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the written
record by an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On July 11, 2005 appellant, then a 46-year-old transportation security screener, filed a
traumatic injury claim (Form CA-1) alleging that on July 10, 2005 she sustained a left knee strain
as a result of constantly lifting and stooping to conduct pat-downs on passengers while in the
performance of duty. OWCP accepted the claim for left knee sprain, later expanding acceptance
of the claim to include the additional condition of a left knee medial meniscus tear. On
December 3, 2006 appellant underwent OWCP-approved left knee arthroscopy with medial and
lateral partial meniscectomy and chondroplasty of the patella.
On March 8, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging a
recurrence of disability and the need for medical care commencing March 3, 2017.
In a development letter dated April 3, 2017, OWCP informed appellant that she had not
submitted sufficient medical evidence to establish a recurrence of disability or the need for medical
care. It requested that she submit a comprehensive narrative medical report from her treating
physician, including the physician’s opinion as to the relationship between her claimed recurrence
and her accepted employment injury. OWCP afforded appellant 30 days to submit additional
evidence.
Appellant subsequently submitted additional medical evidence in support of her claimed
recurrence.
By decision dated December 20, 2018, OWCP denied appellant’s recurrence claim finding
that she had not submitted sufficient medical evidence to establish that her work stoppage resulted
from a worsening of the accepted work injuries without intervening cause.
In an appeal request form dated June 10, 2019, postmarked June 17, 2019, appellant
requested a review of the written record by a representative of OWCP’s Branch of Hearings and
Review.
By decision dated July 11, 2019, OWCP’s hearing representative denied appellant’s
request for a review of the written record finding that the request was untimely filed. The hearing
representative informed appellant that her case had been considered in relation to the issues
involved, and that the issues could be equally addressed by requesting reconsideration and
submitting evidence not previously considered.

2

LEGAL PRECEDENT
Section 8124 FECA, concerning a claimant’s entitlement to a hearing before an OWCP
hearing representative, provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made 30 days after issuance of an OWCP final decision.4
A hearing is a review by an OWCP hearing representative of a final adverse decision issued
by an OWCP district office.5 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.6 A request for either an oral hearing or a review
of the written record must be sent, in writing, within 30 days of the date of the decision for which
the hearing is sought.7 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.8
Although there is no right to a review of the written record or an oral hearing, if not
requested within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for a review of the written
record before an OWCP hearing representative pursuant to 5 U.S.C. § 8124(b).
Appellant had 30 days following OWCP’s December 20, 2018 merit decision to request a
review of the written record before a representative of OWCP’s Branch of Hearings and Review.
As her request for a review of the written record was postmarked June 17, 2019, more than 30 days
after OWCP’s December 20, 2018 decision, it was untimely filed and she was, therefore, not
entitled to a review of the written record as a matter of right.10 Section 8124(b)(1) is unequivocal
on the time limitation for requesting a hearing.11

4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.616.

6

Id. at § 10.615.

7

Id. at § 10.616(a); T.C., Docket No. 20-0090 (issued February 13, 2020); M.H., Docket No. 19-1087 (issued
October 17, 2019); B.V., Docket No. 18-1473 (issued April 23, 2019).
8

T.C., id; K.L., Docket No. 19-0480 (issued August 23, 2019).

9

P.C., Docket No. 19-1003 (issued December 4, 2019); M.G., Docket No. 17-1831 (issued February 6, 2018);
Eddie Franklin, 51 ECAB 223 (1999).
10

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011); see also G.S., Docket No. 18-0388 (issued
July 19, 2018).
11

5 U.S.C. § 8124(b)(1); see M.K., Docket No. 19-0428 (issued July 15, 2019); R.H., Docket No. 18-1602 (issued
February 22, 2019); William F. Osborne, 46 ECAB 198 (1994).

3

OWCP also has the discretionary power to grant an oral hearing or review of the written
record even if the claimant is not entitled to a review as a matter of right. The Board finds that
OWCP, in its July 11, 2019 decision, properly exercised its discretion noting that it had considered
the matter in relation to the issue of recurrence and determined that the issue could be equally well
addressed through a reconsideration application. The Board has held that as the only limitation on
OWCP’s authority is reasonableness, abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deduction from established facts.12 The Board finds that the evidence of
record does not indicate that OWCP abused its discretion in connection with its denial of
appellant’s request for a review of the written record.
Accordingly, the Board finds that OWCP properly denied appellant’s request for a review
of the written record.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the written
record by an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

See T.G., Docket No. 19-0904 (issued November 25, 2019); Daniel J. Perea, 42 ECAB 214 (1990).

4


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

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Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0633
Issued: November 16, 2018

Case Submitted on the Record

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

JURISDICTION
On January 29, 2018 appellant, through counsel, filed a timely appeal from an August 2,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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.
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of
OWCP’s decision. 20 C.F.R. § 501.7(a). An appeal is considered filed upon receipt by the Clerk of the Appellate
Boards. The 180th day following OWCP’s August 2, 2017 decision was January 29, 2018. Since using February 1,
2018, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of the right to
file an appeal, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is January 29, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

Federal Employees’ Compensation Act3 (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 appellant has met her burden of proof to establish a recurrence
of disability commencing October 27, 20144 causally related to her February 8, 2013 employment
injury; and, (2) whether she has established that her claim should be expanded to include additional
lumbar conditions.
FACTUAL HISTORY
On February 8, 2013 appellant, then a 26-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she injured her low back that day while lifting a sack of mail.
She stopped work on the date of injury and returned to full-time modified-duty work on
February 25, 2013. Appellant worked for four days, again stopped work, and returned to the
modified position on March 5, 2013. She stopped work again on March 27, 2013, but returned to
modified-duty work on April 9, 2013. On May 9, 2013 OWCP accepted the claim for lumbar
sprain.
On May 23, 2013 appellant accepted a modified position with duties of scanning placards
for 4 hours daily, side dumping mail for 30 minutes every 2 hours, and rewrapping 1 hour at a
time. Lifting and pushing were limited to 20 pounds, and walking, sitting, and standing to one
hour at a time. Appellant continued working in this modified position until she stopped work again
on October 25, 2014.
Appellant initially sought medical treatment on May 6, 2013 with Dr. Robert J. Ponzio, an
osteopath, who diagnosed lumbar strain and sprain with aggravation of underlying lumbar
degenerative disc disease. A May 31, 2013 magnetic resonance imaging (MRI) scan of appellant’s
lumbar spine demonstrated multilevel degenerative disc disease with no significant central canal
stenosis.5 On June 3, 2013 Dr. Ponzio reviewed the MRI scan findings and also noted that an
electrodiagnostic study of the lower extremities was normal.6 He diagnosed degenerative disc
disease at L5-S1 with minimal central disc protrusion. On July 15, 2013 Dr. Ponzio additionally
diagnosed multilevel lumbar degenerative disc disease, left-sided paracentral disc herniation at

3

5 U.S.C. § 8101 et seq.

The Board notes that appellant’s notice of recurrence (Form CA-2a) noted that she sustained a recurrence of
disability on October 20, 2014 and stopped work on October 21, 2014. The employing establishment noted on the
reverse side of the claim form that appellant stopped work on October 25, 2014.
4

5
Appellant had previously undergone MRI scans of her lumbar spine. A February 20, 2012 lumbar spine MRI
scan reported a history of low back pain radiating down bilateral legs, with pressure and numbness. The MRI scan
demonstrated multilevel degenerative disc disease, most prominent at L5-S1 where there was a mild bulge, but no
significant stenosis, and mild central stenosis at L3-4 and L4-5.
6

A copy of the study is found in the record.

2

L4-5, an annular tear at L5-S1 with central disc herniation, and left lower extremity radiculopathy.
He recommended lumbar steroid injections and referral to pain management.
By report dated September 3, 2014, Dr. Ponzio noted appellant’s complaint of radiating
low back pain and numbness. He diagnosed lumbar degenerative disc disease at L5-S1 and
recommended a pain management consultation. On a duty status report (Form CA-17) of that
same date, Dr. Ponzio advised that appellant could continue restricted duty.
On February 9, 2015 OWCP received a notice of recurrence (Form CA-2a) signed by
appellant on November 5, 2014 indicating that the recurrence occurred on October 20, 2014 and
that she had stopped work on October 21, 2014.7 Appellant described her modified-duty work and
indicated that her condition had not improved since the February 8, 2013 employment injury.8 The
employing establishment, on the reverse side of the Form CA-2a, noted a date of recurrence and
cessation of work of October 25, 2014.
In support of her recurrence claim, appellant submitted an October 27, 2014 report in which
Dr. Garo Avetian, an osteopath, noted that appellant injured her back when lifting a sack of mail
on February 8, 2013. Dr. Avetian related that his examination of her lumbar spine demonstrated
acute pain, tenderness, and spasm of the paraspinal and gluteal musculature, and reduction in range
of motion. He diagnosed post-traumatic lumbar sprain/strain and advised that appellant could not
work. Dr. Avetian opined that, due to the low back pain, mechanism of injury, damage to
surrounding soft tissue, and the severity and persistence of her symptoms, within a medical
probability, appellant’s low back conditions were a direct result of the work-related incident of
April 7, 2010. He completed a duty status report on October 27, 2014 indicating that appellant
could not work.
A January 16, 2015 MRI scan of appellant’s lumbar spine demonstrated posterior disc
bulges at L3-4, L4-5, and L5-S1. Also submitted was a copy of the May 31, 2013 MRI scan.
By development letter dated June 15, 2015, OWCP informed appellant of the type factual
and medical evidence needed to establish her recurrence claim. It provided a questionnaire for her
completion regarding the factual allegations of her claim. OWCP also noted appellant’s accepted
lumbar sprain and advised that additional medical evidence was needed, including a physician’s
opinion supported by a medical explanation regarding the relationship between her current
disability and the February 8, 2013 employment injury. It afforded her 30 days to submit the
necessary evidence.
In July 12, 2015 response to OWCP’s questionnaire, appellant indicated that at the time of
the claimed recurrence she was working in rewrap fixing damaged boxes. She described job duties
of standing and sitting intermittently, lifting 20 pounds or less, with very little bending. Appellant
indicated that her symptoms never improved and continued to worsen, with radiating low back
7

Appellant’s supervisor signed and dated the Form CA-2a on February 7, 2015.

8

Appellant had previously filed a claim for compensation (Form CA-7) on November 24, 2014 for the period
November 1 to 14, 2014. By decision dated February 10, 2015, OWCP denied that claim. The claim for compensation
for this period is not presently before the Board.

3

pain. She noted diagnoses of lumbar disc herniation and lumbar radiculopathy, and indicated that
she was presently undergoing medical treatment with trigger point injections.9
By decision dated July 27, 2015, OWCP denied appellant’s recurrence claim, finding the
medical evidence of record was insufficient to establish that the claimed recurrence of disability
was causally related to the accepted employment injury.
On July 27, 2016 appellant, through counsel, requested reconsideration.
Medical evidence submitted subsequent to the July 27, 2015 decision included a pain
management evaluation with illegible signatures. Also submitted were reports of trigger point
injections beginning February 5, 2015, which also had illegible signatures.
In monthly reports beginning in March 2015, Dr. R. Todd Rinnier, an osteopath who is a
Board-certified anesthesiologist, described appellant’s pain management including epidural
steroid injections. He noted her complaints of pain, stiffness, and spasm and provided examination
findings.
In October 2015 OWCP referred appellant to Dr. Lawrence Barr, a Board-certified
osteopath specializing in orthopedic surgery, for a second opinion evaluation.
In an October 19, 2015 report, Dr. Barr noted appellant’s history of injury and her current
complaints of constant radiating low back pain that limited house and yard work, bending,
crawling, sitting, driving, standing, lifting, kneeling, sleeping, and getting up out of bed in the
morning. He indicated that she was performing light-duty work when she quit work in
October 2014. Dr. Barr noted his review of the statement of accepted facts and medical record
including May 23, 2013 and August 25, 2015 electrodiagnostic studies and the MRI scan findings.
He described examination findings of tenderness in the lower lumbar paraspinal musculature with
no spasm. Sitting root test elicited pain. Appellant complained of decreased sensation on the right
lateral leg and numbness in the dorsum of the foot. Toe and heel walking were normal. Lumbar
spine and hip range of motion were diminished. Dr. Barr diagnosed low back sprain and
degenerative disc disease of the lumbar spine. He advised that appellant had plateaued medically,
had reached maximum medical improvement, and no further treatment was required. Dr. Barr
advised that the February 8, 2013 work incident had caused a low back sprain, noting that her
history of degenerative disc disease of the low back predated the work injury and was progressive
as part of its natural process. He concluded that appellant was capable of sedentary work and, if
there was a question of returning to full duty, recommended a functional capacity evaluation
(FCE).
An FCE was completed on November 17, 2015 and indicated that appellant was capable
of sedentary work. On December 11, 2015 Dr. Barr noted these findings and advised that appellant
could perform sedentary work, with occasional exertion up to 10 pounds.

9

The record indicates that she had trigger point injections beginning on February 5, 2015.

4

Dr. Rinnier continued to provide pain management.10 On May 11, 2016 Dr. Vernon
indicated that appellant could not resume work. He completed injections on March 16 and 30,
May 25, and June 2 and 16, 2016.
In a July 20, 2016 report, Dr. Vernon noted appellant’s history of injury, and previous
injury in 2012 acknowledging the MRI scan performed at that time. He indicated that appellant’s
condition following her February 3, 2013 injury had worsened. Dr. Vernon opined that, after
reviewing appellant’s MRI scan studies, it was clear that the February 8, 2013 injury was different
in character, intensity, and pain distribution. He noted changes at L4-5 and L5-S1 in the May 31,
2013 MRI scan, with an associated annular tear and increased changes in the January 16, 2015
MRI scan with disc protrusions. Dr. Vernon maintained that appellant’s current pain was directly
related to the February 8, 2013 injury which caused a superimposed lumbar herniation and lumbar
annular tear. He agreed that degenerative disc disease could be progressive, but given the time
frame, appellant’s new injuries, the change in the character of her pain including her symptoms
and distribution of pain, as well as serial imaging studies, there was a clear difference between her
2012 findings and those after February 8, 2013. Dr. Vernon concluded that, with reasonable
medical certainty, appellant suffered a permanent injury to her back and would need ongoing
treatment. He continued to provide treatment.
An April 18, 2017 MRI scan of the lumbar spine demonstrated disc extrusions at L5-6 and
L6-S111 which had mildly increased since the January 16, 2015 study.
In an attending physician’s report (Form CA-20) dated June 5, 2017, Dr. Vernon noted that
appellant had injured her low back lifting a bag of mail. He diagnosed disc extrusions of the
lumbar spine and checked a box marked “yes,” indicating that the diagnosis was employment
related. Dr. Vernon advised that appellant was totally disabled. He confirmed this opinion in a
duty status report dated June 7, 2017.
By decision dated August 2, 2017, OWCP denied modification of the July 27, 2015
decision. It found that the medical evidence of record provided insufficient medical rationale
explaining how her condition changed or worsened in October 2014 such that she was rendered
unable to perform her modified job duties. OWCP further found that appellant had not submitted
sufficient medical rationale to support additional diagnoses such as aggravation of her preexisting
back condition.
LEGAL PRECEDENT -- ISSUE 1
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
10

On December 14, 2015 Dr. Rinnier performed radiofrequency neurolysis of the medial branch nerves for lumbar
facet joints at L3-4, L4-5, and L5-S1. On February 8, 2016 Dr. Aimee Hachigian-Gould, a Board-certified orthopedic
surgeon and OWCP medical adviser, reported that the lumbar facet joint surgery was not medically warranted. By
letter dated June 27, 2016, OWCP informed appellant that the procedure was not authorized.
The radiologist who performed the MRI scan noted that “for purposes of this dictation there are six non ribbearing lumbar vertebral type bodies … the last vertebral body will be designated as L6, previously designated as L5
on MRI lumbar spine [January 16, 2015].”
11

5

injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.12 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the 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.13
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 light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.14
An individual who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is 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 supports that conclusion with sound medical reasoning.15
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing October 27, 2014 causally related to her February 8, 2013 employment
injury.
Appellant has not alleged a change in her modified-duty job requirements. Instead, she
attributed her inability to work due to a change in the nature and extent of her employment-related
conditions. Appellant, therefore, has the burden of proof to provide medical evidence to establish
that she was disabled due to a worsening of the accepted work-related lumbar sprain.16 As she has
not submitted probative medical evidence demonstrating total disability beginning in October
2014, the Board finds that appellant has not met her burden of proof to establish her recurrence
claim.17
In his monthly reports beginning in March 2015, Dr. Rinnier did not discuss a cause of
appellant’s diagnosed conditions. Likewise, the diagnostic studies of record did not provide a
12

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

13

Id.

14
Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
15

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

16

D.L., Docket No. 13-1653 (issued November 22, 2013).

17

See H.T., Docket No. 17-0209 (issued February 8, 2018).

6

cause of her diagnosed conditions. Medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.18
Dr. Ponzio treated appellant through July 15, 2013 when he diagnosed multilevel
degenerative disc disease. He next saw appellant on September 3, 2014, almost 14 months later,
when he reiterated his diagnosis and advised that appellant could continue modified duty. To
establish that a claimed recurrence of the condition was caused by the accepted injury, medical
evidence of bridging symptoms between the present condition and the accepted injury must
support the physician’s conclusion of a causal relationship.19 As Dr. Ponzio did not explain, with
evidence of bridging symptoms why appellant was disabled as of October 25, 2014 due to her
accepted injury, his opinion is of no probative value regarding the claimed October 2014
recurrence of disability.
In October 27, 2014 reports, Dr. Avetian described the February 8, 2013 employment
injury and physical examination findings, diagnosed post-traumatic lumbar sprain/strain, and
advised that appellant could not work. He explained that due to the low back pain, mechanism of
injury, damage to surrounding soft tissue, and the severity and persistence of appellant’s
symptoms, within medical probability her low back conditions were a direct result of the workrelated accident of April 7, 2010. The record contains no evidence of an April 2010 injury.
Dr. Avetian’s report is therefore factually and historically inaccurate, and the Board has long held
that to be of probative value a medical opinion must be based on a complete and accurate factual
and medical background. Moreover, Dr. Avetian expressed no knowledge of appellant’s modified
job duties. Medical opinions based on an incomplete or inaccurate history are of diminished
probative value.20 Dr. Avetian’s opinion is of diminished probative value and insufficient to meet
appellant’s burden of proof.
In his July 20, 2016 report, Dr. Vernon did not report a correct history, noting that appellant
stopped work in October 2013 rather than in October 2014. Moreover, in that report he noted a
previous injury in 2012. Other than a February 20, 2012 lumbar MRI scan that reported a history
of radiating low back pain, there is no evidence in the record before the Board concerning a 2012
injury. Dr. Vernon did not begin treating appellant until January 2015, almost two years after the
February 8, 2013 employment injury. While he discussed appellant’s MRI scan findings and
maintained in his July 2016 report that appellant’s current pain was directly related to the
February 8, 2013 injury which caused a disc herniation and annular tear, he did not exhibit
knowledge of appellant’s modified-duty requirements or explain why she could not continue
working in this position. Although Dr. Vernon generally supported that appellant’s continued
symptoms and disability were a result of the February 8, 2013 employment injury, he failed to
adequately address why appellant’s complaints and diagnosed conditions were not caused by her
preexisting disc disease. A well-rationalized opinion is particularly warranted when there is a
history of a preexisting condition.21 Moreover, Dr. Vernon did not explain why there was an
18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19

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

20

L.G., Docket No. 09-1692 (issued August 11, 2010).

21

See T.M., Docket No. 08-975 (issued July 14, 2014).

7

absence of medical treatment between July 2013 and September 2014.
opinion is insufficient to meet appellant’s burden of proof.22

Thus, Dr. Vernon’s

Appellant did not submit medical reports from a physician who explained with medical
rationale that she sustained a spontaneous worsening of her accepted conditions on or after
October 27, 2014 as a result of the accepted February 8, 2013 employment injury, sufficient to
cause total disability.23 As she has not submitted sufficient medical evidence showing that she
sustained a recurrence of disability due to the accepted employment injury, the Board finds that
she has not met her burden of proof.24
LEGAL PRECEDENT -- ISSUE 2
An employee has the burden of proof to establish that any specific condition for which
compensation is claimed is causally related to the employment injury.25 Causal relationship is a
medical issue, and the medical evidence required to establish a causal relationship is rationalized
medical evidence.26 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 employee.27 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.28
It is well established that where employment factors cause an aggravation of an underlying
physical condition, the employee is entitled to compensation for periods of disability related to the
aggravation. Where the medical evidence supports an aggravation or acceleration of an underlying
condition precipitated by working conditions or injuries, such disability is compensable. However,
the normal progression of untreated disease cannot be said to constitute aggravation of a condition
merely because the performance of normal work duties reveal the underlying condition. For the
conditions of employment to bring about an aggravation of preexisting disease, the employment
must cause acceleration of the disease or precipitate disability.29

22

See O.A., Docket No. 16-1771 (issued January 23, 2018).

23

See K.P., Docket No. 15-1711 (issued January 14, 2016).

24

See supra note 16.

25

Kenneth R. Love, 50 ECAB 276 (1999).

26

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

27

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

28

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

29

A.C., Docket No. 08-1453 (issued November 18, 2008).

8

ANALYSIS -- ISSUE 2
The Board also finds that appellant has not met her burden of proof to establish that her
claim should be expanded to include additional lumbar conditions.
Dr. Barr provided a second opinion evaluation for OWCP on October 19, 2015 and noted
appellant’s preexisting history of degenerative disc disease. The Board finds that his wellrationalized report, which was based upon a proper factual and medical background, represents the
weight of the medical evidence and establishes that appellant’s subsequently diagnosed lumbar
conditions were not caused or aggravated by the accepted employment injury.30 Dr. Barr reviewed
the medical record, including appellant’s MRI scans and diagnostic studies and opined that the
February 8, 2013 work incident caused a low back sprain. He explained that appellant had a
history of degenerative disc disease of the low back, which predated her employment injury and
was progressive as part of its natural process. The Board has reviewed the opinion of Dr. Barr and
finds that it has reliability, probative value, and a convincing quality with respect to its conclusions
regarding the issue presented on appeal.31 Dr. Barr’s opinion is based on a proper factual and
medical history. He thoroughly reviewed that history and accurately summarized the relevant
medical evidence.32 As noted, Dr. Barr properly explained that appellant’s February 8 2013 injury
caused a lumbar strain, that appellant had preexisting degenerative disc disease, and that her
current condition was a natural progression of her preexisting disease. Thus, his opinion is entitled
to the weight of the medical evidence and establishes that appellant’s additional lumbar conditions
were not caused or aggravated by the accepted employment injury.
Contrary to counsel’s assertion on appeal, the medical evidence of record is insufficient to
establish with medical rationale that additional conditions should be accepted. The opinion of a
physician supporting causal relationship must be based on a complete factual and medical
background, supported by affirmative evidence, must address the specific factual and medical
evidence of record, and must provide medical rationale explaining the nature of the relationship
between the diagnosed condition and the established incident or factor of employment.33
As noted above, neither Dr. Rinnier, Dr. Ponzio, nor the physicians who reported the
lumbar scan findings discussed a cause of any of their diagnosed conditions, and Dr. Avetian
reported an inconsistent history of injury. These reports are, therefore, insufficient to establish
that additionally diagnosed conditions were caused by the February 8, 2013 employment injury.34
As to the May 16, 2016 report from Dr. Vernon, while he discussed appellant’s MRI scan
findings, including degenerative changes, and maintained in his July 2016 report that appellant’s
current symptoms were directly related to her February 8, 2013 injury which caused a
30

See R.T., Docket No. 17-2019 (issued August 24, 2018).

31

See R.W., Docket No. 12-0375 (issued October 28, 2013).

32

See Melvina Jackson, 38 ECAB 443 (1987).

33

Robert Broome, 55 ECAB 339 (2004).

34

Supra note 17.

9

superimposed disc herniation and annular tear, the Board finds his opinion of diminished probative
value. He relied only on MRI scan findings to relate new diagnoses, but he failed to explain the
mechanics of how the February 8, 2013 injury caused the new lumbar conditions he diagnosed,
rather than the normal progression of her preexisting disc disease.35
Rationalized medical evidence is evidence which relates a work incident or factors of
employment to a claimant’s condition, with stated reasons of a physician. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.36 The Board finds that appellant has not submitted sufficient rationalized
medical evidence supporting a causal relationship between any additional back conditions and the
February 8, 2013 employment injury.
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 her burden of proof to establish a recurrence of
disability commencing October 27, 2014 causally related to her February 8, 2013 employment
injury. The Board also finds that she has not established that her claim should be expanded to
include additional lumbar conditions.

35

Supra note 26.

36

C.O., Docket No. 10-189 (issued July 15, 2010).

10

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
ARMSTRONG NEW ORLEANS
INTERNATIONAL AIRPORT,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 08-1919
Issued: March 17, 2009

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 June 30, 2008 appellant filed a timely appeal of the December 28, 2007 decision of an
Office of Workers’ Compensation Programs hearing representative who affirmed the termination
of her compensation benefits, and a May 22, 2008 decision which denied her request for
reconsideration without a merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over these merit and nonmerit decisions.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 13, 2007; and (2) whether the Office properly denied
appellant’s requests for reconsideration without a merit review.

FACTUAL HISTORY
On October 23, 2004 appellant, then a 40-year-old transportation security screener, filed
a traumatic injury claim alleging that, on that date, she felt a sharp pain from her left shoulder to
her left hand and from her left hip to her left foot after picking up a bag at work. The Office
accepted her claim on January 5, 2005 for left shoulder strain, left hip strain, lumbar strain and
cervical strain. Compensation payments commenced on January 9, 2005.
Appellant first sought treatment from Dr. Gordon Nutik, a Board-certified orthopedic
surgeon. In reports dated between November and December 2004, Dr. Nutik indicated that his
examination revealed no objective findings and that appellant could do light work. He noted that
she complained of left shoulder pain that he could not fully explain and he felt she should be
working. In a December 12, 2004 treatment report, Dr. Nutik stated that he saw no objective
findings on appellant’s physical examination or on her diagnostic tests to explain her subjective
complaints of significant pain. He had no further treatment to offer her and discharged her with
a restriction of light-level lifting due to her subjective complaints. Appellant subsequently
sought treatment from Dr. Troy Beaucoudray, a pain medicine specialist. He stated in a
January 20, 2005 treatment note that appellant should be placed on light duty and restricted from
lifting over 20 pounds until April 1, 2005.
On November 22, 2005 the employing establishment removed appellant from her
position because of her inability to perform the physical requirements of that position, which
included the ability to lift objects up to 70 pounds.
Appellant subsequently sought treatment from Dr. Stephen Dawkins, Board-certified in
occupational medicine, who advised that she undergo a functional capacity evaluation (FCE).
The results of the April 19, 2006 FCE revealed that appellant had a maximum lifting capacity of
20 pounds, placing her in the light category.
Appellant was also treated by Dr. Mark Juneau, a Board-certified orthopedic surgeon.
On October 24, 2006 Dr. Juneau noted that the FCE “did not make sense” as it stated that
appellant could not stand over six minutes and could push 80 pounds. He concluded that there
were no objective findings in this examination and no evidence of cervical or lumbosacral
radiculopathy. In a November 29, 2006 treatment report, Dr. Juneau found that magnetic
resonance imaging (MRI) scan results for appellant’s spine were “totally normal.” He also stated
that there were no objective findings that would make appellant have symptoms for over a year
and there were no orthopedic objective reasons for her not to return to her previous work.
Dr. Juneau noted that his disagreement with the April 19, 2006 FCE findings and recommended
it be performed again by another individual.
The Office referred appellant and a statement of accepted facts to Dr. Christopher Cenac,
a Board-certified orthopedic surgeon, for a second opinion evaluation. In a January 17, 2007
report, Dr. Cenac found that appellant had normal motion of the left shoulder, normal lumbar
spine and mild degenerative changes at C5-6. He concluded that appellant had appropriate
evaluation and treatment to date and all residuals had resolved from the October 23, 2004 injury.
Dr. Cenac opined that the date of maximum medical improvement (MMI) was reached on
October 24, 2006 at the time of Dr. Juneau’s examination and that it was more probable than not

2

that she could return to any level of physical activity. He also scheduled appellant for an FCE on
February 13, 2007 and stated, “I do suspect” that there would be evidence of “symptom
magnification and illness behavior noted on the FCE.” In a February 15, 2009 work capacity
evaluation form, Dr. Cenac indicated that appellant was capable of performing her usual job and
that she had reached maximum medical improvement.
The results of the February 13, 2007 FCE revealed that appellant had a maximum lifting
capacity of 50 pounds, placing her in the medium level category and she was able to work 8
hours a day, 40 hours a week. The test administrator indicated that self-limiting behavior was
noted on 19 percent of the 16 tasks. However, the test administrator further noted that this was
considered normal as research suggested that self-limiting behavior only affected test results
when it occurred on more than 20 percent of test items. The Office requested that Dr. Juneau
review Dr. Cenac’s reports and the February 13, 2007 FCE results and submit a response. After
reviewing those reports, Dr. Juneau submitted a March 20, 2007 medical report, in which he
stated that the February 13, 2007 FCE was more representative than the previous one and he
reasserted his opinion that appellant could return to her previous employment because there was
a lack of objective orthopedic physical findings. On February 21, 2007 Dr. Cenac confirmed that
he reviewed the February 13, 2007 FCE and concluded that appellant was employable at the
medium level of physical activity with 50-pound lifting restrictions. In an accompanying
February 15, 2007 work restriction evaluation, he also noted that appellant was restricted to no
more than 50-pound of pushing, pulling, lifting, squatting, kneeling and climbing. Dr. Cenac
also noted that appellant would need a 10-minute break every 2 to 3 hours. He advised that
appellant could perform her regular job.
On May 2, 2007 the Office issued appellant a notice of proposed termination of
compensation, indicating that the weight of the medical evidence demonstrated that appellant’s
work-related condition had resolved.
In a decision dated June 13, 2007, the Office terminated appellant’s compensation
benefits effective that day. It found that the opinions of appellant’s treating physicians and
Dr. Cenac concurred that her accepted conditions had resolved.
Appellant requested an oral hearing, which was held on November 5, 2007. In a
November 14, 2007 report, Dr. Anthony Human, an osteopath specializing in family medicine,
reviewed appellant’s medical records and examined her on November 9, 2007. He opined that
appellant’s October 23, 2004 work injuries had not resolved as asserted by Dr. Cenac.
Dr. Human noted that the February 13, 2007 FCE did not show symptom magnification as
predicted by Dr. Cenac. His review of the February 13, 2007 FCE results found that the medical
evidence supported impairment and the need for ongoing treatment. Dr. Human further noted
that appellant’s return to work would aggravate her condition and result in further injury. In a
November 9, 2007 treatment note, he noted that appellant’s October 2004 work injury diagnosed
cervical radiculitis, cervical myositis, cervicalgia, cephalgia and myospams and recommended
physical therapy.
In a December 28, 2007 decision, the Office hearing representative affirmed the June 13,
2007 decision terminating appellant’s compensation, finding that the weight of the medical
evidence rested with Dr. Cenac.

3

On April 22, 2008 appellant requested reconsideration. She submitted a January 31, 2008
treatment note from Dr. Dawn Wilson, a physiatrist, who reviewed her medical records and
provided a history of appellant’s work injury stating that she had reinjured her back in
January 2005, which caused left upper extremity radiculopathy. She diagnosed: cervical
radiculitis; cervical, thoracic, greater than lumbar myositis; cervical, thoracic, greater than
lumbar sprain/strain; cephalgia; myospasms and insomnia. Dr. Wilson concluded genuine
physical impairment such that appellant could not return to work without aggravating her
radiculopathy and cervical, thoracic and lumbar strain. She also recommended more physical
therapy and rehabilitation.
In a May 22, 2008 decision, the Office denied appellant’s reconsideration request without
a review of the merit findings that Dr. Wilson’s report was cumulative and immaterial evidence.1
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 After it has determined that an employee has disability
causally related to her federal employment, it may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
ANALYSIS
The Office accepted that appellant’s October 23, 2004 work incident caused left shoulder
strain, left hip strain, lumbar strain and cervical strain. However, it has not met its burden to
establish that all residuals of appellant’s accepted employment conditions had resolved, effective
June 13, 2007.
The Office relied upon Dr. Cenac’s medical reports to terminate appellant’s
compensation benefits. However, Dr. Cenac’s opinion regarding appellant’s disability and
residuals is inconsistent. In a January 17, 2007 report, he indicated that all conditions due to the
October 23, 2004 work injury had resolved and that appellant could perform any level of
physical activity. Dr. Cenac reported examination findings but did not otherwise provide any
reasoning or rationale for his opinion on the cessation of residuals.5 Thereafter, he scheduled an
FCE for appellant and predicted that she would likely demonstrate evidence of symptom
1

The Board notes that the Office references to a Dr. Dawn Brown instead of Dr. Dawn Wilson, the correct name
of appellant’s physician.
2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
3

Vivien L. Minor, 37 ECAB 541 (1986).

4

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

5

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

4

magnification. Dr. Cenac did not explain the reason he felt that appellant would magnify her
symptoms. Following the February 13, 2007 FCE, he found that appellant could return to work
with a 50-pound lifting restriction. In Dr. Cenac’s February 15, 2007 work restriction
evaluation, he placed similar limits on other activities such as pulling, pushing, kneeling and
squatting. He did not address whether these restrictions were due to the employment injury or to
a nonwork-related condition. Dr. Cenac also did not appear to be aware that appellant’s date-ofinjury position required lifting of up to 70 pounds. He did not address the findings in the
February 13, 2007 FCE report on indicate whether symptom magnification affected the test
results. Dr. Cenac did not specifically address whether all residuals of appellant’s accepted
conditions had resolved. Given the inconsistent and conclusory nature of his opinion,
Dr. Cenac’s medical reports are of diminished probative value and insufficient to establish that
all residuals of appellant’s accepted conditions had resolved.6
Dr. Juneau advised that appellant demonstrated no objective findings. However, none of
his medical reports provided a well-rationalized explanation that addressed whether appellant
continued to be disabled by or have residuals of the accepted conditions, left shoulder strain, left
hip strain, lumbar strain and cervical strain. For example, in a March 20, 2007 report, Dr. Juneau
did not specifically address whether all residuals of the accepted conditions had ceased; he
merely indicated that appellant could return to her regular duties. However, the Board notes that
the Office not only terminated appellant’s entitlement to wage-loss benefits it also terminated her
entitlement to medical benefits.7 Therefore, Dr. Juneau’s medical reports are insufficient to
establish that all residuals of appellant’s accepted conditions have resolved.
No other medical reports contemporaneous with the termination of benefits establish that
all residuals of appellant’s accepted conditions resolved. On the other hand, Dr. Human’s
November 14, 2007 report provides some support for a continuing employment-related
condition.
Consequently, the medical evidence is insufficient to establish that appellant has no
continued disability or residuals due to her accepted conditions and, therefore, the Office has
failed to meet its burden to terminate appellant’s compensation benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits effective June 13, 2007. Given the Board’s determination regarding the
merit issue of this case, it is not necessary for the Board to consider whether the Office properly
denied a merit review in its May 22, 2008 decision.

6

See William C. Thomas, 45 ECAB 591, 594 (1994).

7

See T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007) (the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability; to terminate authorization for medical treatment,
the Office must establish that a claimant no longer has residuals of an employment-related condition that require
further medical treatment).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 28, 2007 is reversed.
Issued: March 17, 2009
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
__________________________________________
A.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 19-1455
Issued: May 20, 2020

Case Submitted on the Record

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

JURISDICTION
On June 25, 2019 appellant, through counsel, filed a timely appeal from an April 22, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established greater than five percent permanent
impairment of his left upper extremity, for which he previously received schedule award
compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 23, 2007 appellant, then a 27-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that on February 21, 2007 he hyperextended his left elbow during
training while in the performance of duty. OWCP accepted the claim for left elbow ulnar collateral
ligament strain. It authorized surgery for left elbow reconstruction of the medial ligament and
ulnar nerve transposition, which occurred on August 18, 2007.
On September 24, 2008 appellant filed a claim for a schedule award (Form CA-7).
By decision dated January 27, 2009, OWCP granted appellant a schedule award for one
percent permanent impairment of the left upper extremity. Appellant requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. By decision dated August 14, 2009,
the hearing representative affirmed the January 27, 2009 decision.
Appellant, through counsel, appealed to the Board. By decision dated July 12, 2010, the
Board set aside the August 14, 2009 hearing representative’s decision, finding the case was not in
posture for decision.4 The Board found that the impairment rating of the district medical adviser
(DMA) was insufficient to constitute the weight of the medical opinion evidence as he failed to
provide adequate rationale for assigning 10 percent sensory deficit loss for appellant’s ulnar nerve
impairment.
On remand OWCP further developed the medical evidence. By decision dated March 2,
2011, it granted appellant an additional schedule award for four percent permanent impairment of
the left upper extremity, resulting in a total schedule award of five percent permanent impairment
of the left upper extremity.
On June 28, 2017 appellant, through counsel, requested an additional schedule award. In
support of his request, appellant submitted a June 13, 2017 impairment evaluation, wherein
Dr. Joshua B. Macht, a Board-certified internist, reviewed appellant’s medical history. Dr. Macht
diagnosed status post left ulnar collateral ligament reconstruction and ulnar nerve transposition.
Appellant’s physical examination revealed markedly positive left elbow Tinel’s sign, no left upper
extremity atrophy, mild tenderness on palpation of the medial left elbow, and intact left elbow
3

Docket No. 09-2288 (issued July 12, 2010).

4

Id.

2

motor strength. Range of motion for the left elbow was measured three times for accuracy
resulting in 130 degrees elbow flexion, 0 degrees extension, 90 degrees supination, and 90 degrees
pronation. Dr. Macht reported that while his examination did not reveal any instability, appellant
reported incidents of sharp pain and popping when reaching behind and above, pushing, and
pulling in awkward positions. Citing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),5 Dr. Macht, using the
diagnosis-based impairment methodology (DBI) and diagnosis of left ulnar collateral ligament
injury, determined that appellant had six percent permanent impairment of the right upper
extremity according to Table 15-7 on page 406 and Table 15-4 on page 399. He noted that it was
unclear why the authors of the A.M.A., Guides made instability the only criteria which extended
a collateral ligament injury beyond a class 0 impairment. Dr. Macht reiterated that he had been
unable to reproduce instability on his examination, however occasional instability was consistent
with the history appellant provided. Based on a QuickDASH Questionnaire of 45 out of 100 points
and using Table 15-7 on page 406, Dr. Macht assigned a grade modifier for functional history
(GMFH) of 2. Next, using Table 15-8 on page 408, he assigned a grade modifier for physical
examination (GMPE) of 1. Dr. Macht assigned no grade modifier for clinical studies (GMCS).
Using Table 15-4, page 399, he determined that appellant’s condition was a grade D, class 1, which
equated to six percent left upper extremity permanent impairment. Dr. Macht determined that
there was either “a three percent permanent partial impairment of the right upper extremity or a
five percent permanent partial impairment of the right upper extremity as a result of his right ulnar
neuropathy” using Table 15-23 on page 449 and recommended diagnostic testing be performed to
determine the exact extent of the impairment. Lastly, Dr. Macht opined that “[t]his impairment
would be combined with the previously described impairment as a result of his right ulnar
collateral ligament injury to yield a final impairment figure of 9 or 11 percent permanent partial
impairment of the right upper extremity as a result of the February 21, 2007 accident.”6
On May 11, 2018 Dr. Macht amended his June 13, 2017 impairment evaluation to reflect
that the impairment rating was for the left upper extremity rather than the right upper extremity.
In a July 3, 2018 report, Dr. Jovito Estaris, Board-certified in occupational medicine,
serving as OWCP’s DMA reviewed the medical evidence of record and statement of accepted facts
(SOAF). He noted that both range of motion (ROM) and DBI methods could be used to rate
appellant’s permanent impairment. The DMA provided a DBI impairment rating of zero percent
permanent impairment citing to Table 15-4, page 399 of the sixth edition of the A.M.A., Guides,
for a diagnosis of left elbow ulnar collateral ligament tear. He indicated his disagreement with
Dr. Macht’s assignment of class 1 for appellant’s ulnar collateral ligament injury under Table 154 as Dr. Macht specifically related that there was no evidence of instability during appellant’s
physical examination. Regarding Dr. Macht’s impairment rating for ulnar nerve compression, the
DMA explained that the A.M.A., Guides at page 445 required electromyography (EMG) or nerve
conduction velocity (NCV) studies be obtained to rate the impairment under Table 15-23, page
449. He noted that Dr. Macht assigned an impairment rating for ulnar nerve compression at the
elbow without any supporting EMG/NCV studies. Therefore, the DBI methodology of rating of
permanent impairment for appellant’s left shoulder elbow ulnar collateral ligament tear and ulnar
5

A.M.A. Guides (6th ed. 2009).

6

In CA-7 forms dated November 21, 2017 and April 11, 2018, appellant filed claims for a schedule award.

3

nerve compression amounted to zero percent of the left upper extremity. Next, the DMA noted
that Dr. Macht did not use the ROM method in his impairment calculation. He proceeded to
evaluate appellant’s permanent impairment under the ROM methodology found at Table 15-22 on
page 474 of the A.M.A., Guides. The DMA found that appellant’s flexion of 130 degrees yielded
three percent permanent impairment, 0 degrees of extension yielded zero percent permanent
impairment, 90 degrees pronation yielded zero percent permanent impairment and 90 degrees
supination yielded zero percent permanent impairment, totaling three percent left upper extremity
permanent impairment, utilizing the ROM methodology. Thus, the he concluded that appellant
had three percent left upper extremity permanent impairment and, therefore, no additional schedule
award was warranted.
By decision dated October 4, 2018, OWCP found that appellant was not entitled to an
additional schedule award. It found that the weight of the medical opinion evidence was
represented by the DMA’s July 3, 2018 report.
On October 11, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on February 13, 2019.
By decision dated April 22, 2019, OWCP’s hearing representative affirmed the October 4,
2018 denial of appellant’s claim for an additional schedule award. She found the weight of the
medical opinion evidence was represented by the well-rationalized report of the DMA.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulation,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.9 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

4

and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted by GMFH, GMPE, and GMCS.12 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 Evaluators are directed to
provide reasons for their impairment choices, including the choices of diagnoses from regional
grids and calculations of modifier scores.14
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)15
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”16
ANALYSIS
The Board finds that appellant has not established greater than five percent permanent
impairment of the left upper extremity, for which he previously received schedule award
compensation.

11

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
12

Id. at 383-492.

13

Id. at 411.

14

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

15

FECA Bulletin No. 17-06 (May 8, 2017); see also W.H., Docket No. 19-0102 (issued June 21, 2019).

16

Id.

5

In support of his schedule award claim appellant submitted a June 13, 2017 permanent
impairment evaluation and a May 11, 2018 addendum report from Dr. Macht. Using A.M.A.,
Guides and DBI methodology, Dr. Macht determined that appellant had six percent permanent
impairment of the left upper extremity according to Table 15-7 on page 406 and Table 15-4 on
page 399 for his left ulnar collateral ligament tear and either a three or five percent impairment of
the left upper extremity using Table 15-23 on page 449 for the diagnosis of ulnar nerve
compression. Dr. Macht then combined the impairment ratings for the left ulnar neuritis and left
ulnar neuropathy impairment ratings, resulting in a 9 or 11 percent permanent impairment of left
upper extremity. He did not provide an impairment rating using the ROM methodology, but did
provide ROM measurements.
The DMA reviewed Dr. Macht’s reports on July 3, 2018 and concluded that the ROM
methodology provided a greater impairment than the DBI methodology. He disagreed with
Dr. Macht’s assignment of class 1 for appellant’s ulnar collateral ligament injury under Table 15 4
because Dr. Macht had related that appellant had no evidence of instability on physical
examination. The Board also notes that while Dr. Macht related that appellant had occasional
instability based upon his history, he did not actually document any instability in his recitation of
appellant’s complaints.17 Since Table 15-4 requires occasional recurrent instability for rating of a
collateral ulnar ligament injury, as a class 1 impairment, the DMA properly assigned a class 0, and
found that appellant’s collateral ulnar ligament injury would be rated as zero percent permanent
impairment. The DMA also disagreed with Dr. Macht’s ulnar nerve compression impairment
rating. He properly noted that the A.M.A., Guides required supporting EMG/NCV studies before
a permanent impairment rating could be made under Table 15-23. Thus, the DMA found zero
percent permanent impairment using Table 15-23 on page 449 for the diagnosis of ulnar nerve
compression. Utilizing the ROM methodology found in Table 15-33 on page 474, he properly
concluded that appellant had three percent left upper extremity permanent impairment using ROM
methodology and ROM findings from Dr. Macht’s report, based upon his 130 degrees of elbow
flexion.
The Board finds that the DMA discussed how he arrived at his conclusion by listing
specific tables and pages in the A.M.A., Guides and he properly interpreted the sixth edition of the
A.M.A., Guides to find that appellant had three percent permanent impairment of the left upper
extremity and was not entitled to an additional schedule award. Therefore, the DMA’s opinion is
given the weight of the medical evidence and supports that appellant does not have greater than
the five percent upper extremity permanent impairment previously awarded.18
There is no current medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has greater than the five percent permanent
impairment of the left upper extremity previously awarded. Accordingly, appellant has not met
his burden of proof to establish that he is entitled to an additional schedule award.

Dr. Macht noted appellant’s complaints of occasional pain and “popping” of the left elbow, but he did not explain
that the complaint of “popping” constituted instability of the elbow.
17

18

R.R., Docket No. 17-1947 (issued December 19, 2018).

6

On appeal counsel asserts that the decision is contrary to law and fact. As set forth above,
appellant has not established greater than the five percent permanent impairment of the left upper
extremity previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established greater than five percent permanent
impairment of his left upper extremity, for which he previously received schedule award
compensation.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 20, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 17-1174
Issued: September 6, 2017

Case Submitted on the Record

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

JURISDICTION
On May 8, 2017 appellant filed a timely appeal from a March 10, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
from the last merit decision, dated June 16, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly found that appellant abandoned her request for an
oral hearing.
FACTUAL HISTORY
OWCP accepted that on or before September 21, 2000 appellant, then a 47-year-old
distribution clerk, climbed stairs, walked, and stood while in the performance of duty, causing an
1

5 U.S.C. § 8101 et seq.

aggravation of degenerative joint disease of the left knee. Appellant stopped work on
September 21, 2000 and did not return. OWCP paid appellant wage-loss compensation for total
disability from September 22, 2000 to July 29, 2001.
Dr. Thaddeus W. Hume, an attending Board-certified orthopedic surgeon, provided
periodic reports February 22, 2002, noting that appellant had remained off work after the
September 26, 2000 arthroscopic left knee surgery. He opined that she remained disabled from
her date-of-injury position and might require total knee arthroplasty in the future. On April 1,
2002 Dr. Hume requested OWCP to authorize purchase of a wheelchair due to appellant’s severe
osteoarthritis in both knees. Periodic reports kept her off work due to severe osteoarthritis of
both knees.
In a June 19, 2002 report, Dr. Hume opined that appellant had 37 percent permanent
impairment of the right lower extremity and 20 percent permanent impairment of the left lower
extremity due to severe osteoarthritis of both knees, according to the fifth edition of the
American Medical Associations, Guides to the Evaluation of Permanent Impairment
(hereinafter, A.M.A., Guides) then in effect.
On November 19, 2002 an OWCP medical adviser reviewed Dr. Hume’s evaluation and
found 35 percent permanent impairment of the right lower extremity and 20 percent permanent
impairment of the left lower extremity. He found that appellant had attained maximum medical
improvement as of June 19, 2002.
By decision dated January 22, 2003, OWCP issued a schedule award for 35 percent
permanent impairment of the right lower extremity and 20 percent permanent impairment of the
left lower extremity due to bilateral knee osteoarthritis. The period of the award ran from
May 19, 2002 through May 31, 2005.
Following the end of the schedule award, OWCP resumed paying disability
compensation from June 1, 2005 through March 18, 2006.2 Appellant was paid compensation on
the periodic rolls from March 19, 2006 to July 23, 2016. She remained under medical treatment
and participated in physical therapy periodically from 2010 through early 2014.
In an April 25, 2014 report, Dr. Robin N. Goytia, an attending Board-certified orthopedic
surgeon, diagnosed bone on bone post-traumatic osteoarthritis of both knees. On June 30, 2015
he recommended bilateral total knee arthroplasties.
On July 8, 2015 OWCP authorized Dr. Goytia’s request for a total left knee arthroplasty.

2

On February 1, 2005 OWCP obtained a second opinion report from Dr. David Vanderweide, a Board-certified
orthopedic surgeon, who opined that an accepted bilateral shoulder condition had returned to baseline. By notice
dated July 25, 2005 and finalized September 6, 2005, it terminated appellant’s compensation effective September 6,
2005, finding that an accepted bilateral shoulder condition had ceased with no residuals. By decision dated
February 16, 2006, OWCP’s Branch of Hearings and Review reversed the termination and reinstated her
compensation benefits. OWCP again terminated appellant’s wage-loss compensation by May 20, 2008 decision,
finding that she refused an offer of suitable work. By decision dated May 27, 2008, OWCP’s Branch of Hearings
and Review reversed the May 20, 2008 decision and reinstated her compensation benefits.

2

In a February 22, 2016 report, an OWCP medical adviser opined that appellant’s right
knee osteoarthritis was due to nonoccupational causes, including morbid obesity. Dr. Goytia
again recommended total right knee arthroplasty on February 24, 2016, emphasizing that
appellant’s severe osteoarthritis was post-traumatic and not idiopathic in nature.
By decision dated June 16, 2016, OWCP denied appellant’s request to authorize a total
right knee arthroplasty, as OWCP’s medical adviser had opined that the right knee osteoarthritis
was due solely to preexisting, idiopathic conditions.
In a July 8, 2016 appeal request form received by OWCP on July 12, 2016, appellant
requested a telephonic oral hearing before a representative of OWCP’s Branch of Hearings and
Review. OWCP issued an acknowledgement letter on July 18, 2016.
In a January 5, 2017 letter, OWCP notified appellant that a telephonic oral hearing was
scheduled in her case for 2:15 p.m. (Eastern Standard Time) on February 17, 2017. It provided a
toll-free call-in number and passcode. OWCP explained that, if appellant no longer desired a
hearing, she should request cancellation immediately by writing to the Branch of Hearings and
Review.
In a February 3, 2017 letter received by OWCP and imaged into the electronic case
record on February 14, 2017, appellant requested that OWCP cancel the oral hearing scheduled
for February 17, 2017. She also asked to change her request for an oral hearing to a request for a
review of the written record. Appellant submitted a new report from Dr. Goytia dated
September 20, 2016, explaining why the requested right knee arthroscopy was necessitated by
the accepted injuries.
By decision dated March 10, 2017, OWCP’s hearing representative found that appellant
had abandoned her request for a hearing, which had been scheduled for February 17, 2017, as
she had failed to appear at the designated time and place and, according to the hearing
representative, there was no indication in the file that she had contacted OWCP either before or
after the scheduled hearing explaining her failure to appear.
LEGAL PRECEDENT
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely
request, to a hearing before an OWCP representative.3 The claimant may request either an oral
hearing or a review of the written record.4 Unless otherwise directed in writing by the claimant,
OWCP’s hearing representative will mail a notice of the time and place of the oral hearing to the
claimant and any representative at least 30 days before the scheduled date.5 A claimant who fails
to appear at a scheduled hearing may request in writing within 10 days after the date of the

3

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

4

Id. at § 10.615.

5

Id. at § 10.617(b).

3

hearing that another hearing be scheduled.6 Where good cause for failure to appear is shown,
another hearing will be scheduled and conducted by teleconference.7 The claimant’s failure to
request another hearing within 10 days shall constitute abandonment of the hearing request.8
Once an oral hearing is scheduled and OWCP’s hearing representative has mailed
appropriate written notice to the claimant and representative, OWCP will, upon submission of
proper written documentation of unavoidable serious scheduling conflicts (such as court-ordered
appearances/trials, jury duty, or previously scheduled outpatient procedures), entertain requests
from a claimant or his or her representative for rescheduling as long as the hearing can be
rescheduled on the same monthly docket, generally no more than seven days after the originally
scheduled time. In these instances, rescheduled hearings will usually be held via teleconference,
and the hearing representative will ensure that the file accurately reflects any action taken to
reschedule the hearing. When a request to postpone a scheduled hearing cannot be
accommodated on the docket, no further opportunity for an oral hearing will be provided.
Instead, the hearing will take the form of a review of the written record and a decision issued
accordingly.9
ANALYSIS
On a July 8, 2016 appeal request form, appellant initially requested a telephonic oral
hearing with respect to OWCP’s June 16, 2016 decision. OWCP received her request on
July 12, 2016 and sent an acknowledgment letter on July 18, 2016. In a January 5, 2017 letter, it
notified appellant that the hearing was scheduled for February 17, 2017 at 2:15 p.m. and
provided a toll-free call-in number and passcode. This letter also explained the procedures for
cancelling the hearing.
In a February 3, 2017 letter received by OWCP on February 14, 2017, three days prior to
the scheduled hearing, appellant requested that OWCP cancel the scheduled hearing and instead
conduct a review of the written record. OWCP did not acknowledge receipt of her letter
cancelling the hearing and prepared to conduct the hearing as scheduled. Appellant did not
appear for the scheduled February 17, 2017 hearing. OWCP subsequently issued its March 10,
2017 decision, finding that she abandoned her hearing request as she did not participate in the
scheduled hearing or contact OWCP either before or after to explain why she failed to appear.
Once a request for a hearing has been received, the claimant may request a change in the
format from a hearing to a review of the written record by making a written request to the Branch
of Hearings and Review.10 OWCP will grant a request received by the Branch of Hearings and
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6g (October 2011).
7

Id.

8

Id.

9

20 C.F.R. § 10.622(c).

10

Id. at § 10.616(b).

4

Review within 30 days of: (1) the date OWCP acknowledges the initial hearing request; or
(2) the date OWCP issues a notice setting a date for an oral hearing, in cases where the initial
request was for, or was treated as a request for, an oral hearing.11 A request received beyond the
above-noted time frames will be subject to OWCP’s discretion.12 The decision to grant or deny a
change of format from a hearing to a review of the written record is not reviewable.13
The Board finds that appellant did not abandon her request for a hearing, as the record
reveals that she timely requested cancellation. On February 12, 2017 OWCP received her
request to cancel the hearing and conduct a review of the written record. The Board further
finds, however, that her February 14, 2017 request for a review of the written record was
untimely filed, as it was not received by OWCP within 30 days of the July 18, 2016
acknowledgement letter, or the January 5, 2017 notice of hearing.14 OWCP therefore must
exercise its discretion as to whether to grant appellant’s request for a change of format.15
However, the March 10, 2017 decision finding that appellant abandoned her hearing request did
not address her request for a review of the written record. Therefore, the case must be remanded
for review and an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.

11

Id.

12

Id.

13

Id.

14

Id.

15

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 10, 2017 is set aside, and the case remanded for additional
action consistent with this decision and order.
Issued: September 6, 2017
Washington, DC

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

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

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

6