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

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

Docket No. 17-0863
Issued: October 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 10, 2017 appellant, through counsel, filed a timely appeal from a February 8,
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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an increased
schedule award for his bilateral upper extremities.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 17, 2010 appellant, then a 48-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral carpal tunnel syndrome due to
repetitive motion and heavy lifting at work. He retired on May 1, 2009.
Appellant underwent electromyogram (EMG) and nerve conduction velocity (NCV)
studies on December 17, 2009 which demonstrated moderately-severe bilateral carpal tunnel
syndrome. He underwent an authorized right carpal tunnel release on January 29, 2010 and left
carpal tunnel release on March 5, 2010.
On December 1, 2010 OWCP accepted appellant’s claim for bilateral carpal tunnel
syndrome.
Appellant filed a schedule award claim (Form CA-7) on March 16, 2011. He underwent
a right-hand magnetic resonance imaging (MRI) scan on November 12, 2010 which
demonstrated mild degenerative osteoarthritis and no significant carpal tunnel abnormalities. A
left-hand MRI scan on November 12, 2010 demonstrated a small ganglion cyst, tendinitis of the
extensor tendon, and no significant carpal tunnel abnormalities.
In a letter dated March 23, 2011, OWCP requested medical evidence describing
appellant’s permanent impairment as a result of his accepted employment injuries. It afforded
him 30 days for a response. Appellant requested a second opinion evaluation on April 2, 2011.
On May 10, 2011 OWCP referred appellant for a second opinion evaluation with
Dr. Richard T. Katz, a Board-certified physiatrist. In a report dated May 23, 2011, Dr. Katz
examined appellant and diagnosed bilateral carpal tunnel syndrome based on EMG/NCV studies.
He reported that appellant had normal strength, normal two-point discrimination and normal
range of motion. Dr. Katz opined that appellant had no evidence of impairment of his upper
extremities based on carpal tunnel syndrome. He concluded that appellant had reached
maximum medical improvement on May 5, 2010.
OWCP’s medical adviser reviewed Dr. Katz’ report on October 3, 2011 and agreed that
given appellant’s lack of complaints of numbness and tingling and his normal physical
examination, there was no objective basis for a schedule award.
Dr. Edward Trudeau, a Board-certified physiatrist, examined appellant on
September 29, 2012. Appellant reported burning pain at his scars, weaker grip, and pain in his
fingers and thumbs following his carpal tunnel surgeries. Dr. Trudeau performed NCV studies
which showed bilateral prolongations of the median motor and sensory latencies. He diagnosed
moderately-severe bilateral carpal tunnel syndrome, greater on the right.
Dr. Theresa Hegge, a plastic surgeon, examined appellant on October 11, 2012 and
diagnosed bilateral carpal tunnel syndrome. She recommended repeated surgeries. Appellant
underwent a second right carpal tunnel release on January 22, 2013. He underwent a second left
carpal tunnel release on March 12, 2013. OWCP authorized both surgeries.

2

Dr. Michael W. Neumeister, a Board-certified hand surgeon of professorial rank,
examined appellant on July 15, 2013 and reviewed his history of injury. He noted that appellant
had increased sensitivity at his incision on the left following surgery which was treated with
Botox resulting in dramatic improvement. Dr. Neumeister found that appellant’s grip strength
was good bilaterally.
In a letter dated March 5, 2014, Dr. Neumeister opined that appellant had reached
maximum medical improvement on July 15, 2013. He noted that appellant was “doing
extremely well” on July 15, 2013.
Appellant filed a schedule award claim (Form CA-7) on June 24, 2014. In a letter dated
July 28, 2014, OWCP requested additional medical evidence in support of his claim for
employment-related permanent impairment.
In a report dated July 16, 2014, Dr. Neil Allen, a Board-certified neurologist, examined
appellant and found that he had reached maximum medical improvement. He noted that
appellant reported bilateral hand pain with intermittent numbness and tingling. Dr. Allen
performed a physical examination and found that appellant had negative Phalen’s test and
Tinel’s sign bilaterally. He reviewed appellant’s clinical studies. Dr. Allen applied the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,3 (A.M.A., Guides) specifically the entrapment/compression neuropathy impairment
table,4 and found that appellant had nine percent bilateral upper extremity permanent
impairment. He reported bilaterally: test findings, grade modifier 3 due to axon loss; history
grade modifier 3 due to constant symptoms; and physical findings grade modifier 3 due to
weakness. Dr. Allen also listed appellant’s functional scale of grade modifier 3, severe due to a
QuickDASH score of 64.
OWCP’s medical adviser reviewed Dr. Allen’s report on September 22, 2014 and
disagreed with his impairment rating, finding Dr. Allen’s rating was inconsistent with
Dr. Neumeister’s assessment of appellant’s progress. The medical adviser determined that
appellant had three percent permanent impairment of each arm due to his bilateral carpal tunnel
syndrome.
By decision dated December 5, 2014, OWCP granted appellant schedule awards for three
percent permanent impairment of each arm. Counsel requested an oral hearing from OWCP’s
Branch of Hearings and Review on December 11, 2014.
In a decision dated May 21, 2015, an OWCP hearing representative determined that the
case was not in posture for a decision and remanded the case for additional development of the
medical evidence, including referral to a second opinion physician for a determination of
appellant’s permanent impairment for schedule award purposes.
3

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
4

A.M.A., Guides 449, Table 15-23.

3

On July 9, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. James B. Stiehl, a Board-certified orthopedic surgeon. In his July 27, 2015 report, Dr. Stiehl
reviewed appellant’s history of injury and medical history. He noted that appellant continued to
have chronic numbness in both hands, greater on the right. Appellant was capable of lifting and
grabbing with both hands without difficulty. Dr. Stiehl determined that appellant’s QuickDASH
score was 68. Phalen’s test was negative with moderate discomfort to palpation over the right
transverse carpal ligament. Sensation was normal to two-point discrimination testing except for
the right thumb. Semmes Weinstein test was normal in all fingers except the right thumb and
index finger. Dr. Stiehl reported that grip strength and pinch were normal with no evidence of
abductor pollicis atrophy. He reviewed appellant’s EMG studies and found that these did not
establish carpal tunnel syndrome on the left. Dr. Stiehl applied the A.M.A., Guides and found
that under Table 15-23 appellant’s left wrist was normal with normal physical findings. He
noted, “I would state that the conflicting evidence of peripheral neuropathy aggravated by
diabetes, hypothyroidism, and other issues in addition to the documented double crush syndrome
negate the presence of chronic occupational left carpal tunnel syndrome. The impairment would
be zero.” Dr. Stiehl applied the A.M.A., Guides to appellant’s right upper extremity and found a
motor conduction block, grade modifier 2, based on the presence of fibrillation and positive
waves in the abductor pollicis brevis muscle and evidence of conduction delays seen with motor
and sensory latency studies. He found significant intermittent symptoms of the right hand and a
demonstration of decreased sensation with both two-point discrimination and Semmes Weinstein
test. Dr. Stiehl listed appellant’s physical findings as grade modifier 1, functional score as grade
modifier 3, and concluded that appellant had five percent permanent impairment of the right arm.
In an August 12, 2015 supplemental report, Dr. Stiehl found that, due to appellant’s
level 3 QuickDASH score of 68, appellant had six percent permanent impairment of the right
arm.
Appellant underwent additional EMG/NCV studies on August 31, 2015.
These
electrodiagnostic studies showed prolonged distal latency in the left and right median motor
nerves. These studies demonstrated severe right distal median neuropathy consistent with severe
right carpal tunnel syndrome and milder left distal median neuropathy consistent with mild left
carpal tunnel syndrome.
On October 10, 2015 OWCP requested an additional supplemental report from Dr. Stiehl
and supplied him the report from OWCP’s medical adviser. He responded on October 28, 2015
and opined that he had correctly applied the A.M.A., Guides in his July 27, and August 12, 2015
reports.
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, and OWCP medical adviser,
reviewed Dr. Stiehl’s reports on January 4, 2016. He agreed with the impairment ratings of six
percent permanent impairment of the right upper extremity and no ratable impairment of the left
upper extremity.
Dr. Neumeister completed a note on March 29, 2016 and opined that it was unclear
whether appellant’s conditions of diabetes, hypothyroidism, and chronic obesity caused or
aggravated his bilateral carpal tunnel syndrome.

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In a decision dated April 28, 2016, OWCP found that appellant had six percent
permanent impairment of his right arm and no ratable impairment of his left arm for which he
had received schedule award compensation.5 Counsel requested an oral hearing from this
decision on May 9, 2016.
Appellant testified at the oral hearing before an OWCP hearing representative on
December 22, 2016. Counsel contended that appellant’s most recent electrodiagnostic studies
supported Dr. Allen’s report and requested that OWCP provide Dr. Stiehl with those studies.
By decision dated February 8, 2017, OWCP’s hearing representative found that appellant
had no more than six percent impairment of his bilateral upper extremities for which he had
received schedule awards.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
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 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.8
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.9 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating

5

OWCP noted that appellant previously received a schedule award for three percent impairment of each arm. It
advised that, as the current medical evidence supported six percent permanent impairment of the right arm and no
impairment of the left arm, no additional payment was warranted. To the extent that OWCP purported to combine
impairment for the right and left arm into an award for bilateral impairment, the Board notes that there is no
provision for bilateral arm impairment under 5 U.S.C. § 8107. Each arm impairment is considered separately under
FECA. R.C., Docket No. 07-0254 (issued August 23, 2007); Cf. Carl J. Cleary, 57 ECAB 563 (2006) (each leg
impairment is considered separately under FECA; there is no provision for bilateral leg impairment).
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See supra note 3.

9

A.M.A., Guides 449, Table 15-23.

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value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.10
ANALYSIS
The Board finds this case not in posture for a decision.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized
repeated surgeries. Dr. Allen provided his findings and opined that appellant had nine percent
impairment of each upper extremity under Table 15-23, page 449, of the A.M.A., Guides. The
Board notes that applying the compression neuropathy rating process to his grade modifiers
results in an average grade modifier of 3 which corresponds to a default upper extremity
impairment of eight percent bilaterally.11 The functional scale modifier of 64 is also grade
modifier 3, such that the default value of eight percent is appropriate.
Dr. Stiehl, OWCP’s second opinion physician, examined appellant and reviewed his
diagnostic studies. He found that appellant’s EMG/NCV studies dated September 29, 2012 did
not establish carpal tunnel syndrome on the left. The A.M.A., Guides provide that the diagnosis
of a neuropathy syndrome must be documented by sensory and motor nerve conduction studies
or EMG to be ratable as impairment.12 As did Dr. Stiehl did not find appellant’s left carpal
tunnel syndrome documented by NCV or EMG, he declined to rate this impairment in keeping
with the A.M.A., Guides. Dr. Stiehl applied the A.M.A., Guides to appellant’s right upper
extremity and found a motor conduction block, test findings grade modifier 2, physical findings
as grade modifier 1, functional scale as grade modifier 3, averaging these grade modifiers results
in a final rating category of 2 with a default value of 5. Dr. Stiehl found that appellant had a
QuickDASH score of 68, corresponding to a functional scale grade modifier of 3, which would
increase appellant’s impairment rating of the right upper extremity to six percent permanent
impairment.
Both Dr. Allen and Dr. Stiehl provided impairment ratings under the A.M.A., Guides.
Due to the disagreement between these physicians on the evaluation of whether appellant had
EMG/NCV studies documenting left carpal tunnel syndrome and the variance in the grade
modifiers, the Board finds that there is a conflict of medical opinion evidence requiring further
development by OWCP. When there are opposing reports of virtually equal weight and
rationale, the case will be referred to an impartial medical specialist pursuant to section 8123(a)
of FECA which provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination and resolve the conflict of medical evidence.13

10

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
functional scale score. A.M.A., Guides 448-49.
11

A.M.A., Guides, 448-449.

12

Id. at 445.

13

5 U.S.C. § 8123(a); B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

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This is called a referee examination and OWCP will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case.14
On remand OWCP should refer appellant, a statement of accepted facts, and a list of
specific questions to an appropriate Board-certified physician to determine the extent and degree
of any ratable permanent impairment of both upper extremities. After this and such other
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision due to an unresolved
conflict of medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this opinion of the Board.
Issued: October 5, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

R.C., 58 ECAB 238 (2006).

7


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

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

Docket No. 10-758
Issued: March 15, 2011

Case Submitted on the Record

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

JURISDICTION
On February 18, 2010 appellant filed a timely appeal from the November 4, 2009
decision of the Office of Workers’ Compensation Programs denying her request for merit
review. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this nonmerit decision. The last merit decision of record
was the Office’s November 12, 2008 decision. Because more than one year has elapsed between
the last merit decision and the filing of this appeal, the Board lacks jurisdiction to review the
merits of this claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 30, 2007 appellant, then a 34-year-old temporary nursing assistant, filed an
occupational disease claim alleging that she sustained a herniated disc due to the work
requirements of her position. The Office accepted her claim for an aggravated herniated disc at
L5-S1, aggravation of degenerative lumbar herniated disc, urinary incontinence and surgical
intervention on February 6, 2007.2
On July 24, 2007 the employing establishment offered appellant a limited-duty job as a
full-time medical clerk. The job duties were considered sedentary to light in nature and
occasionally required walking or carrying light objects. Appellant commenced work but
subsequently resigned from the employing establishment. She notified the employer on
August 29, 2007 that she had found a medical billing position in the private sector which she
would soon start and her last day would be on September 1, 2007.
In a September 7, 2007 letter, the Office advised appellant that the medical clerk position
offered by the employing establishment was found to be suitable. It noted that the position was
still currently available to her. The Office provided appellant 30 days to return to the medical
clerk position or to provide a valid reason for abandoning this position. Appellant was advised
that if she did not provide a valid reason for abandoning suitable work all future entitlement that
might be forthcoming for wage loss or schedule award compensation would not be allowed.
In a September 13, 2007 letter, appellant advised the Office that she had started new
employment in the private sector on September 5, 2007 as an accounts receivable clerk for a
company called Renew.
On September 20, 2007 the Office advised appellant that it had considered the reasons
she provided for not continuing in the modified clerk position but did not find them to be valid.
The letter referenced section 8106(c)(2) of the Act and advised her that if she did not accept the
position within 15 days her benefits would be terminated. Appellant did not return to the
medical clerk position.
In an October 18, 2007 decision, the Office terminated appellant’s entitlement to
monetary compensation effective October 18, 2007 on the grounds that she abandoned suitable
work. It noted that it had advised her that her reasons for abandoning the medical clerk position
were not valid.
In a September 24, 2008 letter, appellant requested reconsideration of her claim. She
stated that she did not realize the consequences of quitting her job at the employing
establishment and that she still had extreme back pain because her L5-S1 disc was not
adequately fused. Appellant submitted medical reports concerning the treatment of her back
condition.

2

On February 6, 2007 appellant underwent a laminectomy, facetectomy and foraminotomy bilaterally at L5-S1
with instrumentation.

2

In a November 12, 2008 decision, the Office affirmed the October 18, 2007 termination
of appellant’s compensation for abandoning suitable work. It noted that it had advised her that
her reasons for abandoning her medical clerk position were not valid.
In an October 1, 2009 letter, appellant requested reconsideration of her claim and advised
that her work-related L5-S1 condition continued to cause her chronic pain. She noted that her
employment injury prevented her from continuing in the private-sector job for which she left the
employing establishment. Appellant stated:
“I know the DOL is hooked on my leaving the position I was offered but I had no
future and no one advised me that I would be treated this way and not
compensated. The job I left for was because they were aware of my surgeries and
did accommodate my needs and it was more money, $12 an hour versus $10
dollars an hour at the Sheridan VA.”3
In a November 4, 2009 decision, the Office denied appellant’s request for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that her application for review
did not raise any substantive legal questions or include new and relevant evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,4
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
The Office’s procedure manual provides that an acceptable reason for refusing an offer of
suitable work is that the employee has found other work which fairly and reasonably represents her
earning capacity.8 When such a reason is offered, the Office is required to make a determination
3

Appellant submitted numerous medical reports concerning the treatment of her back condition between
November 2008 and October 2009.
4

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(a)(2) (July 1996).

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on actual earnings in the new job representing the employee’s wage-earning capacity such that
compensation should be adjusted.9
ANALYSIS
The Office accepted appellant’s claim for an aggravated herniated disc at L5-S1,
aggravation of degenerative lumbar herniated disc, urinary incontinence and surgery on
February 6, 2007. The employing establishment offered her a limited-duty position as a medical
clerk. Appellant started work in the position but later stopped and obtained employment in the
private sector. The Office terminated her monetary compensation effective October 18, 2007 on
the grounds that she abandoned suitable work.
Following a November 12, 2008 merit decision, affirming the termination of her
compensation, appellant requested reconsideration of her claim on October 1, 2009. Appellant
explained the basis for her leaving the offered position: “The job I left for was because they
were aware of my surgeries and did accommodate my needs and it was more money, $12 an hour
versus $10.…”
Appellant’s letters to the Office clearly argued the fact that she had actual earnings in a
new position she commenced on September 5, 2007. The decisions of the Office have been
silent on this matter. As noted, an acceptable reason for refusing an offer of suitable work is that
the employee has found other work which fairly and reasonably represents her earning capacity.10
The Board finds that appellant’s request for reconsideration raised a relevant argument
not previously considered or addressed by the Office. It is sufficient to warrant reopening her
claim for further merit review. The Office abused its discretion by denying appellant’s request
for further review of the merits of her claim. The case is remanded to the Office for
consideration of the merits of her claim to be followed by the issuance of a merit decision.
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). The case is remanded to the Office for
further development.

9

Mary E. Woodward, 57 ECAB 211 (2005).

10

See supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the November 4, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: March 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 18-1805
Issued: May 10, 2019

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 September 27, 2018 appellant filed a timely appeal from a September 11, 2018 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following OWCP’s September 11, 2018 decision
and on appeal. However, the Board’s Rules of Procedure provide: “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 appellant has met her burden of proof to establish total disability
commencing July 14, 2018 causally related to her accepted December 26, 2017 employment
injury.
FACTUAL HISTORY
On May 7, 2018 appellant, then a 44-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on December 26, 2017, she developed pain and swelling in her right
knee when she fell while in the performance of duty. She further noted that she had sustained a
prior injury to her right knee. By decision dated July 5, 2018, OWCP accepted the claim for sprain
of the anterior cruciate ligament (ACL) of the right knee and sprain of other specified parts of the
right knee. Appellant stopped work on July 14, 2018.
On July 23, 2018 appellant filed a claim for compensation (Form CA-7) commencing
July 14, 2018.
In a development letter dated August 2, 2018, OWCP informed appellant that the medical
evidence of record was insufficient to establish total disability commencing July 14, 2018. It
advised her to submit a comprehensive narrative report from her treating physician that included
a history of her injury and a thorough explanation with objective findings as to how her condition
had worsened such that she was no longer able to perform the duties of her position when she
stopped work on July 14, 2018. OWCP afforded appellant 30 days to submit the necessary
evidence.
In an August 14, 2018 report, Dr. Robert Steiner, a Board-certified orthopedic surgeon,
noted that he saw appellant for follow-up examination. He indicated that her condition was
worsening and she continued to have increasing pain, swelling, and giving way of her right knee,
although there was no history of reinjury. Dr. Steiner opined that appellant remained symptomatic
in regards to ACL tear of the right knee with anterolateral rotary instability. He noted that she had
been disabled from work since July 17, 2018 and was currently disabled from work.
In an August 16, 2018 report, Dr. Joseph Finstein, a Board-certified orthopedic surgeon,
noted a right knee examination showed that appellant had positive Lachman’s, a 2+ anterior
drawer, some pain over her medial meniscus, a positive McMurray’s test, trace effusion, and pain
in her lateral joint line. A magnetic resonance imaging (MRI) scan of the right knee showed some
high grade partial tear of the ACL with parameniscal cyst at the lateral meniscus. Dr. Finstein
assessed right high grade partial thickness tear of the ACL with instability and right lateral
parameniscal cyst with likely lateral meniscal tear.
By decision dated September 11, 2018, OWCP denied appellant’s claim for total disability
commencing July 14, 2018. It found that the medical evidence of record was insufficient to
establish that the claimed disability was related to the accepted December 26, 2017 employment
injury.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4
Under FECA, the term disability means “the incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of injury.”5 The question of whether an
employee is disabled from work is an issue that must be resolved by competent medical evidence.6
The employee is responsible for providing sufficient medical evidence to justify payment of any
compensation sought.7
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.8 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow an employee to self-certify his or her disability and entitlement to
compensation.9
ANALYSIS
The Board finds appellant has not met her burden of proof to establish total disability
commencing July 14, 2018 causally related to her accepted December 26, 2017 employment
injury.
Dr. Steiner’s August 16, 2018 report indicated that appellant’s symptoms persisted and
noted her disability. However, it did not address whether or how the accepted employment injury
caused the disability. As Dr. Steiner neither provided clear physical findings supporting
appellant’s disability from work during the period in question, nor provided any rationale
explaining how or why appellant’s limitations resulted from the accepted injury, his report is
insufficient to establish the claim.10

3

Id.

4
S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
5

20 C.F.R. § 10.5(f).

6

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

7

20 C.F.R. § 10.501(a).

8

Id.; see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

9

See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
10

See J.M., Docket No. 16-0306 (issued May 5, 2016).

3

Similarly, Dr. Finstein’s August 16, 2018 report provided assessments of right knee pain,
but did not provide a firm medical diagnosis of appellant’s right knee condition or set forth an
opinion regarding causal relationship. The Board has held that a medical report is of no probative
value if it does not provide a firm diagnosis of a particular medical condition or offer a specific
opinion as to whether the accepted employment incident caused or aggravated the claimed
condition.11 Thus, Dr. Finstein’s report is also insufficient to establish appellant’s claim.
As appellant has not submitted sufficiently rationalized medical opinion evidence
establishing that she was disabled from work commencing July 14, 2018 causally related to the
accepted December 26, 2017 employment injury, the Board finds that she has not met her burden
of proof.
On appeal appellant contends that she cannot perform her normal duties “at all” as she
“can’t walk for a long period of time can’t bend, stand” or carry out “the normal duties of a city
carrier.” As explained above, the medical evidence of record is insufficient to establish that
appellant was totally disabled from work for the claimed period.12
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds appellant has not met her burden of proof to establish disability for the
period July 14, 2018 and continuing causally related to her accepted December 26, 2017
employment injury.

11

Id.

12

The Board notes that the employing establishment issued appellant a signed authorization for examination and/or
treatment (Form CA-16) authorizing medical treatment. The Board has held that where an employing establishment
properly executes a CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an
employment-related injury, it creates a contractual obligation which does not involve the employee directly to pay the
cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300, 10.304;
R.W., Docket No. 18-0894 (issued December 4, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the September 11, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2019
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
El Paso, TX, Employer
)
___________________________________________ )
R.C., Appellant

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

Docket No. 09-122
Issued: March 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated July 29, 2008 which denied his claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee injury in the performance of duty.
FACTUAL HISTORY
On October 4, 2007 appellant, then a 55-year-old supervisory law enforcement agent
filed a claim alleging that, on September 17, 2007, while participating in baton training, his
shoes became stuck on the training mat causing him to sustain a right knee strain. In a witness
statement, a coworker noted that at the baton training, appellant indicated that his right knee was

sore but he would be alright. The coworker noted that the next day appellant stated his knee was
swollen and painful. Appellant did not stop work.
Appellant submitted return to work slips dated October 9, 2007 to June 4, 2008 from
Dr. Alvaro A. Hernandez, a Board-certified orthopedist, who noted appellant was examined and
could return to work on October 15, 2007. On November 7, 2007 he noted that appellant was
examined and was unable to return to work at that time. On December 11, 2007 Dr. Hernandez
noted that appellant’s next appointment was on January 8, 2008, at which time he advised that
appellant was unable to return to work. In a February 19, 2008 work slip, he noted treating
appellant and indicated he could return to work as of March 3, 2008. On June 3, 2008
Dr. Hernandez noted that appellant was examined for an injury occurring on May 14, 2008 and
was totally disabled. In a progress note dated June 4, 2008, he advised that appellant had a fall
and experienced hemarthrosis which was resolved. Dr. Hernandez found range of motion of the
right knee as 130 degrees with no instability and negative x-rays. He diagnosed status post right
total knee replacement. Appellant also submitted physical therapy notes dated January 3 to
February 14, 2008 which indicated he underwent right knee surgery on October 23, 2007.
By letter dated June 19, 2008, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his right knee condition and specific employment factors.
Appellant submitted a May 15, 2008 prescription note from Dr. Charles Zaltz, a Boardcertified orthopedic surgeon, who prescribed a right knee brace and a July 24, 2008 request to
purchase a hinged right knee support.
In a decision dated July 29, 2008, the Office denied appellant’s claim on the grounds that
the medical evidence was not sufficient to establish that his right knee condition was caused by
the factors of employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

2

conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized 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.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
Appellant alleged that he sustained a right knee injury while participating baton training.
The Board initially notes that the evidence supports that the incident occurred on September 17,
2007 as alleged. The Board finds however, that the medical evidence is insufficient to establish
that appellant sustained a right knee injury causally related to the September 17, 2007 work
incident.
On June 19, 2008 the Office advised appellant of the medical evidence needed to
establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how the September 17, 2007 work incident caused or aggravated his right
knee condition.
Appellant submitted several brief notes of Dr. Hernandez who examined him and advised
that appellant was unable to return to work until March 3, 2008. In a June 3, 2008 return to work
slip, Dr. Hernandez noted appellant was examined for a May 14, 2008 injury and was totally
disabled. However, these brief notes do not provide a specific diagnosis, a history of injury,7 or
offer an opinion on how the September 17, 2007 incident caused or aggravated his right knee
3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

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

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

3

condition.8 Consequently these reports are of no probative value and do not establish appellant’s
traumatic injury claim. Such an opinion is essential as the record reflects appellant underwent
right knee surgery on October 23, 2007.
On June 4, 2008 Dr. Hernandez again noted appellant had a sustained fall and
experienced hemarthrosis which was resolved. He noted normal range of motion with no
abnormalities revealed on x-ray. Dr. Hernandez diagnosed status post right total knee
replacement. However, he did not provide any narrative explanation of how the September 17,
2007 incident would cause or contribute to a right knee condition or necessitate surgery.
The May 15, 2008 prescription note of Dr. Zaltz for a right knee brace does not offer any
opinion on whether appellant’s condition was causally related to the September 17, 2007 work
incident. Therefore, this report is insufficient to meet appellant’s burden of proof.
Appellant submitted physical therapy notes dated January 3 to February 14, 2008.
However, the Board has held that physical therapists are not competent to render a medical
opinion under the Act.9 Therefore, these reports are insufficient to meet appellant’s burden of
proof.
The remainder of the medical evidence does not provide any physician’s opinion
addressing causal relationship between appellant’s right knee condition and the September 17,
2007 work incident.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor,
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained right knee injury causally related to his September 17, 2007 employment incident.

8

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under the FECA); 5 U.S.C. § 8101(2) (this subsection
defines a ‘‘physician’’ as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
10

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

4

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

)
)
H.W., Appellant
)
)
and
)
)
VETERANS HEALTH ADMINISTRATION,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Philadelphia, PA, Employer
___________________________________________ )
Appearance:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-1319
Issued: February 3, 2015

Case Submitted on the Record

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

JURISDICTION
On May 19, 2014 appellant filed a timely appeal from the March 31, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which terminated her compensation
benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue on appeal is whether OWCP properly terminated appellant’s compensation and
medical benefits effective April 6, 2014.
FACTUAL HISTORY
On May 27, 2011 appellant then a 53-year-old program assistant filed a traumatic injury
claim alleging that, on May 23, 2011, she “slammed” into a cabinet and sustained an injury to
1

5 U.S.C. § 8101 et seq.

her right knee in the performance of duty. She stopped work on the date of injury. On
August 29, 2011 OWCP accepted the claim for contusion of the right knee.2
On April 16, 2012 appellant requested that OWCP accept a left shoulder consequential
injury. In an April 6, 2012 report, Dr. Randall N. Smith, a Board-certified orthopedic surgeon,
and treating physician, noted that he saw her for the residuals of a May 23, 2011 work injury
involving the right knee, which remained painful. He explained that appellant was using a cane
to protect the knee and developed pain in the left shoulder. Furthermore, appellant was using the
cane with the left arm and that was now a significant problem as well. Dr. Smith also reviewed
her history and advised that she was still having problems with her left knee from another
incident. He opined that, as a direct result of favoring the right knee and protecting the right
knee with a cane, the left shoulder was deteriorating and he believed that there was “a direct
relationship to the use of the cane putting the weight on the left shoulder and the rotator cuff
tendinopathy which” was seen in a magnetic resonance imaging (MRI) scan of the left shoulder.
Dr. Smith indicated that appellant was not working and recommended ergonomic evaluation of
her work site to ensure that the employing establishment lessened the force on any of her injured
areas. He stated that he was pessimistic about her prognosis.
On June 19, 2012 OWCP referred appellant for a second opinion, along with a statement
of accepted facts, a set of questions and the medical record to Dr. Robert Allan Smith, a Boardcertified orthopedic surgeon, to determine if the accepted May 23, 2011 injury caused any
additional injuries to the right knee or other part of the body and also to address whether she
continued to have residuals of the accepted right knee contusion.
In a July 20, 2012 report, Dr. Robert Smith noted appellant’s history of injury and
treatment. He examined her on that date and determined that the right knee revealed no evidence
of any soft tissue abnormality such as scarring or residual abrasions, and there was no swelling in
the knee. Dr. Smith found that active range of motion of the knee was satisfactory with full
extension to 100 degrees of flexion. The McMurray sign was negative and there was no finding
of any internal derangement about the knee. Dr. Smith found no muscle atrophy and determined
that motor strength was satisfactory. Additional findings included that the knee was stable with
intact ligamentous structures and the patellofemoral joint was normal. Dr. Smith determined that
the only accepted condition with regard to appellant’s right knee related to the May 23, 2011
work incident was a contusion. He advised that her complaints about other parts of her body
were unsubstantiated and unrelated to the work injury. Dr. Smith noted that appellant had no
reason for altered gait and was not using any assistive device for ambulation. He opined that
there was no evidence that she continued to suffer from residuals of her right knee contusion and
there was no discernible ongoing injury. Dr. Smith also indicated that appellant did not require
any additional treatment.

2

The record reflects that appellant has filed other claims with OWCP. These include claim number xxxxxx904
accepted for a March 30, 2011 contusion of the left knee; claim number xxxxxx757 accepted for a July 26, 1993
lumbosacral sprain; claim number xxxxxx015 accepted for a June 26, 1997 left knee contusion; and claim number
xxxxxx105 accepted for a July 14, 2002 closed dislocations of the fifth and sixth cervical vertebra, and closed
dislocation of the thoracic vertebra. These other claims are not presently before the Board.

2

In an August 10, 2012 report, Dr. Randall Smith, the treating physician, noted that he had
reviewed Dr. Robert Smith’s report and did not agree with him. He opined that appellant could
not return to work. Dr. Randall Smith explained that it started with the knee injury and favoring
the knee, which caused her alignment to get out of position. Furthermore, appellant had chronic
pain in the neck and back, which could occur with sitting or lying down for short periods of time,
which prevented her from returning to her full-duty previous job. Dr. Smith indicated that she
had not recovered from her May 23, 2011 condition. He indicated that appellant’s objective
findings included: popping in the knee, swelling of the knee, painful range of motion of the knee
along with cervical/lumbar spasms, tenderness, postural scoliosis, and painful range of motion.
Dr. Smith opined that he did not anticipate appellant’s return to the workforce.
In a June 7, 2013 report, Dr. Randall Smith diagnosed: contusion, sprain, internal
derangement, and chondromalacia. He advised that, due to her altered gait, appellant was
developing pain throughout the right thigh, hip, and entire right leg making it difficult for her to
stand, walk, and sit. Dr. Smith noted that an MRI scan of the right knee, revealed
chondromalacia. He indicated that objective findings included swelling of the right knee.
Dr. Smith explained that the injury caused a gait dysfunction leading to progressive deterioration
of appellant’s injury. Regarding work, he indicated that she could not stand, sit, or walk for any
distance and opined that it was not reasonable for her to return to the workforce. Furthermore,
appellant had reached maximum medical improvement with a guarded prognosis and would be
unable to return to work without a surgery or a knee replacement. A June 3, 2013 right knee
MRI scan, from Dr. Irene B. Darocha, a Board-certified diagnostic radiologist, showed
chondromalacia of the patella.
On September 26, 2013 OWCP referred appellant along with a statement of accepted
facts, and the medical record to Dr. Menachem Meller, a Board-certified orthopedic surgeon for
an impartial medical evaluation to resolve the conflict in opinion between Dr. Randall Smith, the
treating physician, who advised that her right knee condition remained symptomatic and would
not improve without surgery, and the second opinion physician, Dr. Robert Smith, who opined
that her right knee condition had resolved and that she could perform her usual job duties and did
not require further treatment for her right knee.3
In an October 14, 2013 report, Dr. Meller noted appellant’s history of injury and
treatment and examined her on October 11, 2013. In reviewing the record, he noted June 19,
2011 and June 22, 2012 right knee MRI scan reports. Dr. Meller that signal changes of the
medial femoral condyle noted on the June 19, 2011 report had resolved by the June 22, 2012
report. On examination, appellant had evidence of behavioral cofounders, with slow deliberate
movements, flat guarded affect, and no visible impairment. Her gait was normal and she walked
with one and one-half inch heels which she wore because she did not want to get her feet wet in
the rain. Dr. Meller conducted range of motion testing and determined that appellant had limited
movement. He presented findings which included approximately 60 degrees of flexion and -20
degrees of extension when sitting over the side of the table with the knee flexed 120 degrees with
a soft endpoint. Appellant had normal stability, normal alignment, no crepitus on motion, no
3

The record contains a September 26, 2013 ME023 appointment schedule notification, indicating Dr. Meller’s
selection and also indicating that no other physicians were bypassed.

3

meniscal signs, no popliteal fullness, no hamstring or gastrocnemius discomfort, no bruises,
abrasions or ecchymosis, and no cutaneous lesions, including any sites of impact from the
cabinet.
Dr. Meller advised that appellant had complaints of aches and pains in her neck,
shoulders, upper back, lower back the right leg, and both knees. He advised that the MRI scan of
the right knee one month following the injury demonstrated a bone bruise or contusion.
Dr. Meller stated that a subsequent right knee MRI scan showed that the prior findings had
healed or disappeared. He explained that appellant also had grade 3 patellofemoral retropatellar
chondromalacia, which was another term for arthritis of the right kneecap. Dr. Meller opined
that this was normal for her age and had no relationship to the original injury. He indicated that
should appellant choose to have knee surgery it would not be related to her work activities or
work injury of May 23, 2013. Dr. Meller opined that appellant “has no objective structural
lesions relating to work preventing her from carrying out her work duties. [Appellant] does
however have evidence of work intolerance and behavioral confounders unrelated to work
injuries.” He observed that, while out of work, she developed “diffuse left knee pain” that she
attributed to favoring the right knee but he noted insufficient findings to explain the basis for the
severity of left knee complaints. Instead, Dr. Meller opined that the right knee complaints were
also due to aging wear and tear. He indicated that appellant was capable of returning to her
preinjury occupation without any restrictions and no further treatment. In an accompanying
October 16, 2013, work capacity evaluation, he advised that she could perform her usual job.
On February 26, 2014 OWCP proposed to terminate appellant’s medical and wage-loss
compensation based on the report of Dr. Meller. Appellant was given 30 days to submit
additional evidence or argument.
In a March 13, 2014 letter, appellant noted that the physicians selected by OWCP were
paid in excess of $800.00 for less than 15 minutes of work. She indicated that she had a basic
understanding of FECA and noted that most of the people did not understand the concept of the
“help.” Furthermore, appellant indicated that she accepted “the proposed termination of
medical/wage[-]loss compensation at this time for right now.” She noted that she did not agree
with the opinions of the second opinion and impartial medical examiners. In a letter dated
March 14, 2014, appellant stated that she would appeal any decision to terminate her benefits.
She noted that Dr. Meller was a colleague of her ex-fiancé, who worked as a psychotherapist.
Appellant argued that Dr. Robert Smith was a second opinion physician for the left knee and
OWCP misinformed Dr. Meller that Dr. Smith was a second opinion physician for the present
claim. She asserted that she never saw Dr. Meller for her right knee. Appellant also indicated
that his opinion was “preconceived.” She stated that she found it strange that Dr. Meller
photographed both knees, but did not mention them in his report. Appellant indicated that she
would forward photographs of her knees.
In a July 22, 2013 report, Dr. Kai Syvertsen, a clinical psychologist, indicated that he saw
appellant as part of a disability evaluation. Appellant related that she injured her knee at work
and now had pain in both knees and that in 2012 she injured her shoulder using a cane because of
the knee injuries. Dr. Syvertsen noted her treatment and examined her. He diagnosed major
depressive disorder, recurrent severe without psychotic features, deferred, and knee, shoulder,
and headache pain. Dr. Syvertsen indicated that appellant was unemployed and had no friends,

4

and financial difficulties. He indicated that her inability to complete activities of daily living was
“partially due [to] physical limitations and partially due to lack of motivation and increased
discomfort in social settings.” In an August 9, 2013 report, Dr. Zhiping Mo, Board-certified in
preventative medicine, indicated that appellant presented for a social security disability
evaluation. He examined her and diagnosed chronic knee, leg, shoulder, and back pain. OWCP
also received a July 19, 2013 intake assessment from Jenifer L. Erickson, a clinical counselor,
who recommended psychotherapy and a neurological assessment.
In a letter dated March 26, 2014, appellant indicated that OWCP failed to provide her
with a list of three physicians when the conflict appointment was arranged. She requested a list
of three physicians from which she could select a “creditable” referee that conformed to the
standards regarding a conflict adopted by OWCP. Appellant indicated that she had researched
Dr. Meller’s background and concluded that his report was not “creditable.” She argued that his
report was not impartial as he did not consider all of the orthopedic evidence. Appellant asserted
that Dr. Meller did not consider that both her knees were swollen at the time of the examination,
despite taking photographs. She noted that he refused to mention them in his biased report.
Appellant also indicated that Dr. Meller has a personal vendetta against Dr. Randall Smith, her
attending physician. She provided photographs of her knees.
In a March 31, 2014 decision, OWCP terminated appellant’s compensation benefits
effective April 6, 2014. It found that the weight of medical evidence rested with the impartial
medical examiner, Dr. Meller.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.4 Having determined that an employee has a
disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.5
Furthermore, FECA provides that, if there is disagreement between the physician making
the examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.6 In cases where OWCP has referred appellant to an impartial
medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.7

4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

7

Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

A claimant who asks to participate in the selection of a referee physician based on an
objection to the physician selected, must provide reasons for the request to participate.8
Examples of circumstances under which a claimant may participate in the selection of a referee
are document bias or unprofessional conduct by the selected physician.9
ANALYSIS
OWCP accepted that appellant sustained a contusion of the right knee on May 23, 2011.
On September 26, 2013 it determined that a conflict of medical opinion existed between
Dr. Randall Smith, the treating physician, and the second opinion physician, Dr. Robert Smith.10
Therefore, OWCP properly referred appellant to Dr. Meller, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict.
In his October 14, 2013 report, Dr. Meller noted appellant’s history, reviewed the
medical record, and noted examining her. He found that she had normal knee stability and
alignment with no crepitus on motion, no meniscal signs, and no popliteal fullness. Dr. Meller
also found no bruises, abrasions, or ecchymosis, and no cutaneous lesions, including any sites of
impact from the cabinet. He explained that a right knee MRI scan one month following the
injury showed a bone bruise or contusion but that a subsequent MRI scan of the right knee
demonstrated that the prior findings had healed or disappeared. Dr. Meller explained that
appellant had patellofemoral retropatellar chondromalacia, which was another term for arthritis
of the right kneecap. He advised that this was normal for her age. Dr. Meller advised that it had
no relationship to the original injury. He stated that it was the type of arthritis which caused
anterior knee pain with activities such as kneeling, squatting, or extensive stair climbing but was
not the type of finding which prevented someone from performing clerical office work.
Dr. Meller opined that she had no objective structural lesions relating to work preventing her
from carrying out her work duties. He indicated that appellant was capable of returning to her
preinjury occupation without any restrictions and needed no further treatment. Dr. Meller opined
that any mood disorders or behavioral confounders were not work related.
The Board finds that Dr. Meller’s opinion is entitled to special weight as his report is
sufficiently well rationalized and based upon a proper factual background. OWCP properly
relied upon his reports in finding that appellant’s employment-related condition had resolved.
Dr. Meller examined her, reviewed his medical records, and reported an accurate history. He
indicated that appellant’s accepted right knee contusion had resolved and her present right knee
condition was degenerative and not employment related. Because appellant no longer has
residuals or disability related to her accepted employment condition, the Board finds that OWCP
met its burden of proof to terminate compensation benefits.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4(f) (July 2011).
9

Id. See L.J., Docket No. 13-1920 (issued February 18, 2014).

10

Appellant alleged before OWCP that Dr. Robert Smith was not a second opinion physician for OWCP in the
present claim for the right knee contusion. However, the record clearly reflects that OWCP referred her to him
regarding the right knee condition and the affect of this condition on other parts of her body.

6

OWCP received a July 22, 2013 report from Dr. Syvertsen who conducted a disability
examination and diagnosed major depressive disorder. Dr. Syvertsen indicated that appellant’s
inability to complete activities of daily living was “partially due physical limitations and partially
due to lack of motivation and increased discomfort in social settings.” On August 9, 2013
Dr. Mo diagnosed chronic knee, leg shoulder, and back pain. The Board notes that neither
physician specifically addressed the May 23, 2011 right knee contusion or explained how any
diagnosed condition was causally related to the May 23, 2011 right knee contusion. These
reports are insufficient to overcome the weight accorded to Dr. Meller’s report or to create a new
conflict.11 OWCP also received a report from a counselor. However, this report is of no
probative value as she is not a physician under FECA and, therefore, not competent to provide a
medical opinion.12
The Board notes that, subsequent to the examination and on appeal, appellant challenged
the selection of the impartial medical examiner, Dr. Meller, and asked to be given a list of three
physicians from which to select an impartial specialist. Furthermore, appellant argued that he
had no credibility and was sued for malpractice.
To select a referee physician, OWCP used a medical management application with a
strict rotational scheduling feature.13 It documented the selection of Dr. Meller with an ME023
form, which also indicated that no physicians were bypassed. Appellant raised an objection to
the selection when OWCP proposed to terminate her benefits and alleged that he was biased. As
noted above, a claimant may participate in the selection if a valid reason is established.
However, a general allegation that a physician is biased, without supporting documentation, is
not sufficient.14 Appellant did not provide any supporting documentation as to bias in this claim.
There is no unqualified right to participate in the selection of an impartial specialist.15 There is
no evidence that Dr. Meller was improperly selected. The Board has held that an impartial
medical specialist properly selected by OWCP will be presumed unbiased and the party seeking
disqualification bears the substantial burden of proving otherwise.16 Here, there is no evidence
of record supporting that Dr. Meller was unqualified to render an impartial opinion at the time he
examined appellant or that his opinion was biased.
Appellant on appeal also repeated her arguments that the photographs were not
mentioned in Dr. Meller’s report. However, as explained, the Board has found that he conducted
a complete examination and provided a well-rationalized opinion finding that appellant’s
11

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

12

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physicians assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); Charley V.B. Harley, 2 ECAB 208 (1949)
(the Board held that medical opinion, in general, can only be given by a qualified physician). See also 5 U.S.C.
§ 8101(2).
13

J.G., Docket No. 13-965 (issued December 11, 2013); see supra note 8 at Chapter 3.500.5 (March 2013).

14

S.C., Docket No. 12-801 (issued January 4, 2013).

15

A.H., Docket No. 11-2080 (issued July 26, 2012).

16

59 ECAB 471, 480 (2008).

7

employment-related condition had resolved. Appellant has provided no medical evidence
addressing why mention of such photographs was medically necessary for a proper report. She
also argued that she had not recovered from her work injury and continued to have residuals.
Appellant indicated that OWCP was not clear in its termination decision and argued that the
reasoning was not definitive enough. She also argued that her due process rights were violated.
However, the record indicates that appellant was given a pretermination notice on February 26,
2014 and had an opportunity to submit evidence supporting her claim. OWCP’s termination
notice and its termination decision also made sufficient findings and offered a statement of
reasons to provide appellant a reasonable explanation for the basis of OWCP’s action. Appellant
also asserted that her attempts to expand her claim were disregarded and asserted matters
pertaining to her other claims. The Board notes however that it only has jurisdiction over the
March 31, 2014 decision in the present claim.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s benefits
effective April 6, 2014.

17

See 20 C.F.R. § 501.2(c). Appellant may wish to contact OWCP if she wishes to pursue matters in any of her
other claims.

8

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 16-1405
Issued: January 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 27, 2016 appellant filed a timely appeal from a December 31, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated December 20, 2013, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant contends that the medical evidence submitted in support of her
request for reconsideration is sufficient to establish that her current emotional conditions are
causally related to her accepted employment injuries. She further contends that OWCP erred in

1

5 U.S.C. § 8101 et seq.

giving the weight of the medical opinion to an OWCP referral physician as to whether appellant
had any employment-related residuals or disability.
FACTUAL HISTORY
On May 21, 1993 appellant, then a 35-year-old clerk typist, filed an occupational disease
claim (Form CA-2) for carpal tunnel syndrome. OWCP accepted the claim for bilateral carpal
tunnel syndrome, bilateral trigger finger, right de Quervain’s tenosynovitis, and right radial
styloid tenosynovitis. It authorized right carpal tunnel, right de Quervain’s, and right thumb
releases performed on March 17, 1998 and left trigger thumb release performed on
July 21, 1998. Appellant stopped work at the employing establishment in January 2000. She has
not returned to work.
In a February 9, 2000 decision, OWCP granted appellant a schedule award for four
percent permanent impairment of the right upper extremity and six percent permanent
impairment of the left upper extremity. Appellant had requested an increased schedule award
but, on May 13, 2005, OWCP denied the claim.
Appellant submitted medical evidence, including treatment notes, from an unknown
provider, dated November 4, 1998 to July 5, 2000, magnetic resonance imaging (MRI) scan
reports dated March 10, 1998 and July 10, 2000 from Dr. Yong W. Kim, a Board-certified
radiologist, progress reports dated November 20 and December 6, 2001 from Dr. William W.
Dzwierzynski, a Board-certified plastic surgeon specializing in hand surgery, and a letter dated
October 27, 2003 from Dr. John T. Kroner, a Board-certified orthopedic surgeon, which
addressed her left knee, cervical, and bilateral upper extremity conditions.
On August 26, 2005 OWCP accepted appellant’s claim for mental disorder secondary to
her medical condition.
In an April 24, 2006 decision, OWCP denied appellant’s claim for compensation for
leave without pay from April 18, 2002 to September 20, 2003. It noted that disability
compensation covering the period July 1, 2001 to June 3, 2003 had been paid in part through
April 17, 2002. In a June 12, 2006 decision, OWCP vacated the April 24, 2006 decision. It
found that appellant was entitled to compensation from April 18, 2002 to April 6, 2003.
By decision dated March 7, 2011, OWCP reduced appellant’s wage-loss compensation
effective that date as she had the capacity to earn wages in a constructed position of receptionist.
Appellant continued to receive partial disability compensation payments on the periodic rolls.
In 2013 OWCP referred appellant to Dr. Ronald M. Lampert, a Board-certified
orthopedic surgeon, for a second opinion to determine the nature and extent of her employmentrelated conditions. In an October 25, 2013 medical report, Dr. Lampert provided appellant’s
history of injury and medical and family background. He reviewed medical records, reported
examination findings, and diagnosed postoperative right de Quervain’s surgery, bilateral carpal
tunnel surgery, and multiple surgeries on her right hand fingers. Dr. Lampert advised that there
was no objective evidence to indicate that appellant’s ongoing subjective complaints were
secondary to her accepted employment injuries. He further advised that there was no evidence to

2

indicate either a temporary or permanent aggravation. Dr. Lampert opined that, there was no
objective evidence to indicate any residual disability due to appellant’s accepted conditions. He
also opined that she had reached maximum medical improvement and released her to her date-ofinjury work.
In a notice dated November 12, 2013, OWCP advised appellant that it proposed to
terminate her compensation benefits based on the weight of the medical evidence, as represented
by Dr. Lampert. It afforded her 30 days to submit additional evidence or argument in
disagreement with the proposed action.
In a December 20, 2013 decision, OWCP terminated appellant’s partial wage-loss
compensation and medical benefits effective that date. It found that the weight of the evidence
was represented by Dr. Lampert. OWCP noted that appellant had failed to submit any evidence
in response to the November 12, 2013 termination notice.
Appellant resubmitted the February 9 to July 5, 2000 treatment notes with an unknown
signature, Dr. Kim’s March 10, 1998 and July 19, 2000 MRI scan reports, Dr. Dzwierzynski’s
November 20, 2001 progress report, and Dr. Kroner’s October 27, 2003 letter.
In a lumbar MRI scan report with a partial date of 1999, Dr. Kim found no acute fracture.
He found facet arthropathy from L3 through S1 with narrowing of disc space at L5-S1.
In an April 8, 2014 letter, appellant requested maintenance payments from OWCP
regarding her participation in a vocational rehabilitation program in 2009.
On October 5, 2015 appellant requested reconsideration of the December 20, 2013
decision. She disagreed with Dr. Lampert’s opinion and contended that she continued to suffer
from residuals of her accepted work-related conditions. Appellant asserted that she had been
unable to receive any medical treatment for her accepted emotional condition.
Appellant submitted OWCP’s August 26, 2005 letter in which it had expanded her
accepted conditions to include a mental disorder secondary to her medical condition.
In a September 30, 2013 report, Dr. Kristine Brazzel, a clinical psychologist, conducted a
presurgical psychological evaluation to assess appellant’s candidacy for a vertical sleeve
gastrectomy. She provided a history of appellant’s weight gain and noted that she experienced
stress from her prior job at the employing establishment and having to file a workers’
compensation claim for on-the-job injuries. Dr. Brazzel reported findings on psychiatric
examination and diagnosed recurrent moderate major depressive disorder, post-traumatic stress
disorder (by history), and victim of childhood abuse/neglect on Axis I, borderline personality
disorder traits on Axis II, morbid obesity on Axis III, multiple stressors related to appellant’s
family of origin on Axis IV, and a global assessment functioning score of 65 on Axis V. She
recommended outpatient psychotherapy and advised that once her depressive symptoms were
reduced, coping skills increased, and stress decreased, she would likely be a reasonable candidate
for the proposed surgery. Dr. Brazzel also recommended psychotropic medication.
By decision dated December 31, 2015, OWCP denied appellant’s request for
reconsideration finding it untimely filed and that it failed to demonstrate clear evidence of error.
3

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.2 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.3 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.4
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake
a limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.5
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,6 and is positive, precise, and explicit, and manifests on
its face that OWCP committed an error.7 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must also
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.8
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations9 and procedures10 establish a one-year time
2

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

3

20 C.F.R. § 10.607(a).

4

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term clear evidence of error
is intended to represent a difficult standard).
6

Dean D. Beets, 43 ECAB 1153 (1992).

7

Leona N. Travis, 43 ECAB 227 (1991).

8

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

9

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

10

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.1602.4 (October 2011); see Veletta C. Coleman,
48 ECAB 367, 370 (1997).

4

limit for requesting reconsideration, which begins on the date of the original OWCP decision.
The most recent merit decision was OWCP’s December 20, 2013 decision. Appellant had one
year from the date of this decision to make a timely request for reconsideration. Since OWCP
did not receive her request until October 5, 2015, it was filed outside the one-year time period.
As appellant’s October 5, 2015 request for reconsideration was submitted more than one year
after the December 20, 2013 merit decision, it was untimely filed. Consequently, she must
demonstrate clear evidence of error by OWCP in the denial of her claim.11
The Board finds that appellant has failed to demonstrate clear evidence of error. In her
request for reconsideration, appellant disagreed with OWCP’s decision, terminating her partial
wage-loss compensation and medical benefits effective December 20, 2013 based on the medical
opinion of Dr. Lampert, an OWCP referral physician, who opined that she no longer had any
residuals or disability causally related to her accepted employment injuries. She asserted that she
continued to have residuals of her accepted work-related conditions, particularly her accepted
emotional condition for which she was unable to receive medical treatment. The Board notes
that while appellant addressed her disagreement with OWCP’s termination decision, her general
contentions do not demonstrate clear evidence of error as they do not raise a substantial question
as to the correctness of OWCP’s most recent merit decision which terminated her compensation
benefits.
The Board notes that the underlying issue in her claim was medical in nature. The Board
also notes that the term clear evidence of error is intended to represent a difficult standard.12
Even a detailed, well-rationalized medical report, which would have created a conflict in medical
opinion requiring further development if submitted prior to issuance of the denial decision, is
insufficient to demonstrate clear evidence of error.13 It is not enough to show that evidence
could be construed so as to produce a contrary conclusion. Instead, the evidence must shift the
weight in appellant’s favor.14
Appellant submitted Dr. Brazzel’s September 30, 2013 report in which the physician
assessed her candidacy for a vertical sleeve gastrectomy. Dr. Brazzel reported findings on
examination and diagnosed recurrent moderate major depressive disorder, post-traumatic stress
disorder (by history), and victim of childhood abuse/neglect on Axis I, borderline personality
disorder traits on Axis II, morbid obesity on Axis III, multiple stressors related to appellant’s
family of origin on Axis IV, and a global assessment functioning score of 65 on Axis V. She
opined that appellant would likely be a reasonable candidate for the proposed vertical sleeve
gastrectomy following a reduction of her depressive symptoms, an increase in her coping skills,
and a decrease of her stress with outpatient psychotherapy and psychotropic medication.

11

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

12

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5 (October 2011); see supra note 6.

13

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

14

See M.N., Docket No. 15-0758 (issued July 6, 2015).

5

Dr. Brazzel’s report is insufficient to demonstrate clear evidence of error as it fails to
demonstrate any error in OWCP’s December 20, 2013 decision.15
Similarly, Dr. Kim’s 1999 lumbar MRI scan report finding that appellant had no acute
fracture and facet arthropathy from L3 through S1 with narrowing of disc space at L5-S1 is
insufficient to demonstrate clear evidence of error. The reports do not raise any error in the
underlying December 20, 2013 termination decision.16
Appellant resubmitted the February 9 to July 5, 2000 treatment notes from an unknown
provider, Dr. Kim’s March 10, 1998 and July 19, 2000 MRI scan reports, Dr. Dzwierzynski’s
November 20, 2001 progress report, and Dr. Kroner’s October 27, 2003 letter. OWCP had
previously considered this evidence and appellant, in submitting these documents, did not
explain how this evidence was positive, precise, and explicit in manifesting on its face that
OWCP committed an error in terminating her compensation benefits.17 Thus, these treatment
notes and reports are insufficient to discharge appellant’s burden of proof, as their resubmission
is insufficient to raise a substantial question as to the correctness of OWCP’s decision.
Appellant submitted an April 8, 2014 letter, which addressed her request for maintenance
payments for participating in a vocational rehabilitation program. However, this letter fails to
establish any error in OWCP’s December 20, 2013 decision.18
The Board finds that OWCP properly found that appellant’s October 5, 2015 request for
reconsideration failed to demonstrate clear evidence of error. It therefore properly denied
appellant’s reconsideration request.
On appeal, appellant reiterates assertions that she made before OWCP indicating that she
had submitted sufficient medical evidence to establish continuing employment-related residuals
and disability and that an OWCP referral physician’s report did not constitute the weight of the
medical opinion evidence. However, as noted, the Board does not have jurisdiction over the
merits of the claim. Appellant has not presented evidence or argument that raises a substantial
question as to the correctness of OWCP’s termination decision for which review is sought.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

15

Id.

16

Id.

17

See S.E., Docket No. 16-1258 (issued December 5, 2016).

18

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the December 31, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Great Falls, MT, Employer
__________________________________________

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

Docket No. 15-1045
Issued: August 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2015 appellant filed a timely appeal from December 5, 2014 and March 3,
2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on August 5, 2013 in the performance
of duty, as alleged.
FACTUAL HISTORY
On October 21, 2014 appellant, then a 39-year-old flat sorting machine operator, filed a
traumatic injury claim alleging that on August 5, 2013 she strained her right wrist while pulling
tubs of mail. She did not stop work.
1

5 U.S.C. § 8101 et seq.

By letter dated October 28, 2014, OWCP requested that appellant submit additional
factual and medical information, including a detailed report from a physician addressing the
causal relationship between any diagnosed condition and the alleged work incident. It also asked
that she clarify why she waited over one year to file her traumatic injury claim.
In a November 4, 2014 response, appellant related that she pulled a muscle in her wrist
when pulling mail tubs while running a flat sorter. She did not know the time of injury, but
stated that it happened during her tour of duty. Appellant told her supervisor about the incident
the following day and he instructed her to go to the emergency room.
By decision dated December 5, 2014, OWCP denied appellant’s claim as the medical
evidence was insufficient to show that she sustained a diagnosed condition causally related to the
accepted August 5, 2013 work incident. It noted that she had not submitted any medical
evidence in support of her claim.
In an emergency room report dated August 5, 2013, received by OWCP on December 16,
2014, Dr. Paul Johnson, who specializes in sports medicine, evaluated appellant for an injury to
her right wrist that occurred the previous evening. He noted that she had “been repetitively
working with the arm” and that it “[o]ccurred at work.” On examination of the right wrist,
Dr. Johnson found “moderate tenderness and swelling located in the radial aspect of the wrist”
and reduced motion due to pain. He diagnosed acute pain in the right wrist and tendinitis and
indicated that it was a “work[-]related injury.”
On February 3, 2015 appellant requested reconsideration. In a decision dated March 3,
2015, OWCP denied modification of its December 5, 2014 decision. It found that Dr. Johnson’s
opinion was insufficiently rationalized to establish that appellant sustained tendinitis causally
related to the August 5, 2013 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
2

5 U.S.C. § 8101 et seq.

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

2

alleged, by a preponderance of the reliable, probative, and substantial evidence.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.6 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.7
ANALYSIS
Appellant alleged that she sustained an injury to her right wrist on August 5, 2013 while
pulling tubs of mail. She has established that the August 5, 2013 incident occurred at the time,
place, and in the manner alleged. The issue is whether the medical evidence establishes that
appellant sustained an injury as a result of this incident. The determination of whether an
employment incident caused an injury is generally established by medical evidence.8
The Board finds that appellant has not established that the August 5, 2013 employment
incident resulted in an injury.
Evidence was submitted indicating that Dr. Johnson evaluated appellant at the emergency
room on August 5, 2013. Dr. Johnson obtained a history of appellant experiencing pain at work
the previous night after performing repetitive employment duties. On examination he found
reduced motion of the right wrist due to pain and moderate swelling and tenderness of the right
radial wrist. Dr. Johnson diagnosed right wrist pain and tendinitis and stated that the condition
was work related. He did not provide any rationale for his findings or explain the mechanism by
which performing the repetitive work duties caused the right wrist pain and tendinitis.9 A mere
conclusion without the necessary rationale explaining how and why the physician believes that a
claimant’s accepted exposure could result in a diagnosed condition is not sufficient to meet a
claimant’s burden of proof.10
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on
August 5, 2013 in the performance of duty.
5

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Id.

8

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

9

See R.C., Docket No. 15-315 (issued May 4, 2015).

10

See Beverly A. Spencer, 55 ECAB 501 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2015 and December 5, 2014 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 3, 2015
Washington, DC

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

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

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

4