United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York City, NY, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1685
Issued: May 16, 2012

Case Submitted on the Record

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

JURISDICTION
On July 14, 2011 appellant, through his attorney, filed a timely appeal from a
July 7, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective March 15, 2009; and (2) whether appellant
established that he had any disability caused by residuals of his accepted conditions following
the termination of his compensation benefits.
FACTUAL HISTORY
On December 11, 2002 appellant, then 55-year-old mail carrier, felt pain in his low back,
which progressed into his right leg while boxing mail. The record reflects that he was working
1

5 U.S.C. §§ 8101-8193.

full-time light duty.2 OWCP accepted the claim for neck strain and back spasm. Appellant
returned to work part-time limited duty. OWCP subsequently accepted a recurrence of disability
of June 12, 2003. Wage-loss benefits were paid and appellant was placed on the periodic
compensation rolls. On October 29, 2004 appellant was involved in a nonwork-related motor
vehicle accident.
In a February 9, 2007 progress note, Dr. Han Ki Sim, a Board-certified physiatrist,
reported treating appellant for his work-related injuries since February 19, 2004. He provided a
history of the December 2002 work injury and noted that appellant had back pain ever since.
Appellant had a neurological work up and back surgery was recommended but he was reluctant
to have surgery. Dr. Sim also noted a history of the motor vehicle accident of October 29, 2004
when appellant’s car was hit from the rear end and he reinjured his low back. He indicated that
appellant still had tingling pain in the low back and knotting pain in the left leg with occasional
loss of balance and that he wore a back brace and used a cane to walk. Dr. Sim assessed chronic
low back pain with bilateral L5-S1 radiculopathy. He opined that appellant was totally disabled
and could not return to work. In a February 9, 2007 work capacity evaluation, Dr. Sim found
that appellant could work two hours a day with changing position and limited activity.
OWCP referred appellant to Dr. Harvey L. Seigel, a Board-certified orthopedic surgeon,
to determine appellant’s current condition and whether he still had residuals from his accepted
conditions. In a November 13, 2008 report, Dr. Seigel reviewed the medical history and the
statement of accepted facts and set forth findings on examination. He noted that appellant was
involved in a motor vehicle accident on October 29, 2004 and reinjured his low back and neck.
Dr. Seigel also noted that the results of several diagnostic tests taken mid to late 2003, which
noted marked desiccation of the disc with moderate to diffuse bulging of annulus and varying
degree of large disc protrusion and laxity of the ligamenta flava from level T11 to L1 as well as
grade one retrolisthesis at L4-5 and degenerative disc disease with hypertrophic change at
multiple levels. Examination showed complete painless cervical range of motion. Lumbosacral
spine range of motion was voluntarily diminished. There was no area of tenderness or muscle
spasm in the spine. Dr. Seigel opined that the accepted conditions of neck strain and back strain
and spasm had resolved and that appellant had fully recovered from the effects of the
December 11, 2002 work injury with no disabling residuals. He also opined that OWCP should
not continue to accept the neck condition and noted that in the medical records appellant
attributed the neck condition to a motor vehicle accident. Dr. Seigel opined that appellant could
return to his original job as a mail carrier and completed a work capacity evaluation indicating no
work restrictions.
On February 5, 2009 OWCP issued a notice of proposed termination of compensation to
appellant. It found that the weight of the medical evidence, as represented by Dr. Seigel’s
opinion, established that his accepted neck and back sprain conditions had ceased and that he had
no work-related residuals stemming from these conditions. No new medical evidence was
received.
2

Under claim File No. xxxxxx108, appellant has an accepted case for right quadriceps tendon rupture from
February 26, 2002. He returned to work, full-time light duty with no wage loss beginning October 1, 2002. By
decision dated March 10, 2003, OWCP issued a formal zero loss of wage-earning capacity decision. This other
claim is not presently before the Board.

2

By decision dated March 11, 2009, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective March 15, 2009, finding that Dr. Seigel’s opinion
represented the weight of the medical evidence.
On March 10, 2010 appellant requested reconsideration. He disputed OWCP’s findings
based on the medical evidence from his physicians. Appellant submitted several letters
indicating the history of his back condition and the medical treatment. He submitted a
September 21, 2009 functional capacity screening and diagnostic tests of October 21, 2007 and
March 4, April 3, May 11, August 5 and September 17, 2009. The tests revealed degenerative
discogenic disease resulting in lumbar stenosis and neural foraminal impingement; degenerative
disc disease and disc bulges of the lumbar spine with resultant multilevel segmental moderate to
marked central canal stenosis.
Dr. Dmitri Gorelov, an osteopath and a Board-certified neurologist. In a March 9, 2009
report, he indicated that appellant was under his medical care and was unable to work due to his
medical condition. In a May 5, 2009 report, Dr. Gorelov assessed lower back pain with
electrophysiological evidence of active on chronic bilateral L5 radiculopathy and peripheral
neuropathy. In a May 11, 2009 report, he stated that appellant’s spinal stenosis and lumbar
radiculopathy precluded him from performing his job duties at the employing establishment.
Numerous nursing notes and neurosurgery outpatient consultation reports from 2009 were
received regarding the possible need for back surgery.
In an April 28, 2009 report, Dr. Zoltan Fekete, a neurologist, provided an assessment of
chronic low back pain and active lumbar disc disease on chronic bilateral L5 radiculopathy on
recent electromyogram.
In a May 21, 2010 decision, OWCP denied modification of the March 11, 2009 decision.
It found that the evidence submitted did not provide a rationalized and comprehensive medical
explanation as to how appellant’s degenerative disc disease, various radiculopathies and spinal
stenosis, which were disabling, were related to the December 11, 2002 work injury.
In a March 3, 2011 letter, appellant requested reconsideration. He indicated that, since
the work injury in 2002, he had lived with lumbosacral spine pain that radiated to both his legs.
Appellant stated that his medical record supported that his current back ailments were causally
related to the 2002 work-related accident.
In a September 19, 2011 report, Dr. Fekete assessed hypercholesterolemia, lumbar disc
disorder with myelopathy and benign hypertension. He indicated that appellant was seen by
neurosurgery specialists, who found his medical documentation from 2003 and saw a connection
between his present condition and the 2002 job injury. Appellant opined that this consideration
was most probably the right one.
In a February 22, 2011 report, Dr. Sanjai Sinha, a Board-certified internist, indicated that
appellant was her patient. She stated that his prior Veterans Administration notes regarding his
chronic back pain were reviewed. Dr. Sinha stated that, since 2002, after appellant sustained a
fall down four to five steps while delivering mail, he suffered a quadriceps rupture and back
pain. Appellant was found to have multiple levels of lumbar spondylosis worst at L1-2. Per the

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Veterans Administration neurosurgery team, surgery was recommended in 2009 but he declined.
As appellant’s neurological examination was stable, they did not think there was an urgent need
for surgery; however, as pain persisted, they recommended surgery at some point, sooner rather
than later. Dr. Sinha indicated that recently back exercises, back brace and other stress-reduction
lifestyle changes had improved his symptoms, though he was still on pain medications. She
opined that there were no inconsistencies from the prior notes and imaging studies and his
condition of back pain today.
By decision dated July 7, 2011, OWCP denied modification of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 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.4 Furthermore, the right to medical benefits for an accepted condition is not limited
to the period of entitlement for disability.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6
OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7 In addition to a proper
factual and medical background, a rationalized medical opinion is one of reasonable medical
certainty and supported by medical rationale explaining the opinion.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant had a neck strain and back spasm as a result of the
December 18, 2002 work injury and he was eventually retained on the periodic compensation
rolls. It terminated compensation for wage-loss and medical benefits effective March 15, 2009
based on the report of the Second Opinion Physician Dr. Seigel. At the time of OWCP’s
March 11, 2009 termination decision, the Board finds that the weight of the medical evidence
was represented by the Second Opinion Physician Dr. Seigel, a Board-certified orthopedic
surgeon, who submitted a well-rationalized opinion based on a complete and accurate factual and
medical history.
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Furman G. Peake, 41 ECAB 361, 364 (1990).

6

Id.

7

J.M., 58 ECAB 478 (2007).

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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In a November 13, 2008 report, Dr. Seigel determined that appellant’s accepted
conditions of neck strain and back strain and spasm had resolved and there were no disabling
residuals from the work injury. He detailed his findings on examination and explained that there
were no objective findings that the accepted conditions continued. Dr. Seigel concluded that
OWCP should not continue to accept the neck condition as appellant had attributed the neck
condition to a nonwork-related motor vehicle accident. He also determined that appellant could
return to his regular duties and that he had no work limitations. The Board finds that the weight
of the medical evidence rested with the report of Dr. Seigel, who submitted a thorough medical
opinion based on a complete and accurate factual and medical history. Dr. Seigel performed a
complete examination, reviewed the record and found no basis on which to attribute any
continuing condition or disability to the December 11, 2002 injury. While appellant’s counsel
contended before OWCP and on appeal that Dr. Seigel’s opinion was conclusory and not well
rationalized, this is not supported by the record. While Dr. Seigel’s responses to the specific
questions asked by OWCP were short and concise, he was thorough in reviewing the statement
of accepted facts and medical documentation provided by OWCP and set forth detailed
examination findings that were consistent with his conclusions. His medical opinion, when read
in conjunction with the context of his entire report, is based on a complete and accurate factual
and medical history. Thus, the Board finds that Dr. Seigel’s report established that appellant
ceased to have any disability or condition causally related to the accepted employment injuries,
thereby justifying OWCP’s March 11, 2009 termination of benefits, including medical benefits.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.9
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. 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
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.10
ANALYSIS -- ISSUE 2
Subsequent to OWCP’s March 11, 2009 decision, appellant requested reconsideration
twice and submitted additional evidence. OWCP denied modification in decisions dated
May 21, 2010 and July 7, 2011. The additional evidence, including the September 21, 2009
9

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

10

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

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functional capacity screening, numerous diagnostic testing as well as numerous nursing notes
and neurosurgery outpatient consultation reports, did not offer any opinion on whether
appellant’s continuing conditions or disability were causally related to the December 11, 2002
work injury.
The reports from Dr. Gorelov noted that appellant was unable to work due to spinal
stenosis and lumbar radiculopathy. Dr. Fekete provided an assessment of chronic low back pain
and active lumbar disc disease on chronic bilateral L5 radiculopathy on recent electromyograms.
OWCP accepted neck strain and back spasm. Neither Dr. Gorelov nor Dr. Fekete addressed or
explained how the diagnosed conditions were caused or aggravated by the December 11, 2002
work injury.11 Their reports are of diminished probative value.12 In a September 19, 2011
report, Dr. Fekete diagnosed hypercholesterolemia and lumbar disc disorder with myelopathy
and benign hypertension. He noted that numerous specialists saw a connection between
appellant’s present condition and the 2002 work injury and opined that this consideration was
probably correct. Dr. Fekete did not adequately explain why the diagnosed condition was
attributable to the accepted employment injuries. Thus, his report is of little probative value.
In a February 22, 2011 report, Dr. Sinha noted appellant’s history since 2002 and stated
that there were no inconsistencies from the prior notes from the Veterans Administration
regarding his chronic back pain, the imaging studies and appellant’s current back pain today.
However, she did not provide medical rationale supporting a causal relationship between
appellant’s work injury and his current condition. Dr. Sinha did not explain how any continuing
condition or disability were caused or aggravated by his accepted neck strain and back spasms.
As this opinion is not supported by medical rationale, her report is insufficient to create a conflict
with the opinion of Dr. Seigel or to require further development by OWCP.
Consequently, appellant has not established that his condition on and after March 15,
2009, when the termination became effective, was causally related to his accepted employment
injury.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s benefits
effective March 15, 2009 and that he did not meet his burden of proof to establish that he had
any injury-related condition or disability after March 15, 2009 causally related to the
December 11, 2002 employment injury.

11

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted or approved by OWCP, the employee
bears the burden of proof to establish that the condition is causally related to the employment injury).
12

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

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 7, 2011 is affirmed
Issued: May 16, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0246
Issued: September 19, 2016

Case Submitted on the Record

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

JURISDICTION
On November 12, 2014 appellant, through counsel, filed a timely appeal from an
October 16, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 19 percent binaural hearing loss causally
related to his federal employment, for which he received a schedule award.
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.

On appeal, counsel notes that a second opinion physician added 1 percent impairment to
appellant’s hearing loss for tinnitus, thereby totaling 20 percent binaural hearing loss while an
OWCP medical adviser excluded the 1 percent impairment for tinnitus without explanation. He
further notes that up to five percent may be added for tinnitus according to the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). Counsel cites Board precedent and contends that the case should be remanded to
OWCP to request that the second opinion physician provide a supplemental report explaining her
rationale for giving one percent impairment for tinnitus.
FACTUAL HISTORY
On December 5, 2012 appellant, then a 59-year-old supervisory mechanical project zone
manager, filed an occupational disease claim (Form CA-2) alleging that on June 25, 1992 he first
became aware of hearing loss in both ears and first realized that his condition was caused by
noise at work. He retired from the employing establishment effective January 1, 2011.
On May 29, 2013 OWCP referred appellant to Dr. Eugenia M. Gray, a Board-certified
otolaryngologist, for a second opinion impairment evaluation. In a June 27, 2013 report,
Dr. Gray diagnosed bilateral high frequency sensorineural hearing loss and checked a box
indicating that appellant’s noise exposure in his federal employment was sufficient to cause
binaural hearing loss. An audiogram performed on her behalf on the same date reflected testing
at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) and revealed the
following decibel (dB) losses: 10, 15, 60, and 65 for the right ear and 15, 20, 60, and 65 for the
left ear, respectively. Based on these results and in accordance with the sixth edition of the
A.M.A., Guides, Dr. Gray determined that appellant had a 20.375 percent binaural hearing loss.
She advised that he had reached maximum medical improvement on the date of her examination.
Dr. Gray recommended hearing protection when indicated and hearing aids. On the form report
she added 1 percent impairment for tinnitus, resulting in a total 19.75 percent monaural hearing
impairment in the right ear (18.75 percent + 1 percent for tinnitus) and 23.5 percent monaural
hearing impairment in the left ear (22.5 percent + 1 percent for tinnitus). Dr. Gray calculated a
binaural hearing impairment of 20.375 percent.
In a June 27, 2013 decision, OWCP accepted appellant’s claim for bilateral hearing loss.
On November 15, 2013 appellant filed a Form CA-7 claim for a schedule award.
In a December 2, 2013 report, Dr. Duane J. Taylor, a Board-certified otolaryngologist
and OWCP medical adviser, reviewed Dr. Gray’s report and audiometric test results. He
concurred with her audiometric findings that appellant had 18.75 percent monaural hearing loss
in the right ear and 22.5 percent monaural hearing loss in the left ear, which yielded a 19.37
percent binaural hearing loss. Dr. Taylor omitted the rating for tinnitus. He determined that the
date of maximum medical improvement was June 11, 2013, the date of Dr. Gray’s second
opinion examination and audiometric test. He recommended authorization for hearing aids and
protection, and yearly audiograms.

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In an October 16, 2014 decision, OWCP granted appellant a schedule award for 19
percent binaural hearing loss impairment, entitling him to 38 weeks of compensation. The
period of the award ran from June 11, 2013 to March 3, 2014.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound 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. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each
frequency are added up and averaged. Then, the fence of 25 dB is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.5
ANALYSIS
On appeal counsel contends that appellant has greater impairment based upon the opinion
of Dr. Gray.
OWCP accepted that appellant sustained a bilateral hearing loss due to noise. It
developed the claim by referring him to Dr. Gray. Dr. Gray diagnosed bilateral sensorineural
hearing loss. She opined that the hearing loss was due to appellant’s workplace noise exposure
and recommended hearing protection and hearing aids. Applying the June 27, 2013 audiometric
data, Dr. Gray calculated that appellant had 18.75 percent monaural hearing impairment in the
right ear and 22.5 percent hearing impairment in the left ear. On the form report, she added 1
percent impairment for tinnitus, resulting in a total 19.75 percent monaural hearing impairment
in the right ear (18.75 percent + 1 percent for tinnitus) and 23.5 percent monaural hearing
3

Id.

4

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

5

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).

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impairment in the left ear (22.5 percent + 1 percent for tinnitus). Dr. Gray calculated a binaural
hearing impairment of 20.375 percent.
The Board finds this case not in posture for a decision as clarification is required from
Dr. Gray as to why she added one percent impairment for tinnitus. Regarding tinnitus, the
A.M.A., Guides states, tinnitus in the presence of unilateral or bilateral hearing impairment may
impair speech discrimination. Therefore, up to five percent may be added for tinnitus in the
presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of
daily living (ADLs).6 Although Dr. Gray included one percent impairment for tinnitus in
appellant’s monaural impairment determinations, she did not address how this impacted him in
his ADLs.7 Further, while she noted +1 tinnitus in her report, Dr. Gray did not include tinnitus
as a diagnosis.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done. As OWCP undertook development of the evidence by referring appellant to
Dr. Gray, it has the duty to secure an appropriate report addressing the relevant issues.8 Because
Dr. Gray did not explain why she included a rating for tinnitus in her determination of
appellant’s hearing loss, the case will be remanded to OWCP to request Dr. Gray to provide a
supplemental report explaining her rationale for giving a one percent impairment rating for
tinnitus when she did not list it as a diagnosis.9 Following this and any necessary further
development, OWCP shall issue a de novo decision relative to the extent and degree of
appellant’s hearing impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant has
more than 19 percent binaural hearing loss, for which he received a schedule award.

6

See R.D., supra note 4; David W. Ferrall, 56 ECAB 362 (2005).

7

R.G., Docket No. 11-19 (issued August 3, 2011); J.P., Docket No. 09-1520 (issued March 1, 2010).

8

Peter C. Belkind, 56 ECAB 580 (2005).

9

D.W., Docket No. 14-931 (issued August 11, 2014); V.D., Docket No. 13-331 (issued August 12, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the October 16, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: September 19, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
X.J., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISIONS, Atlanta, GA, Employer
__________________________________________

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

Docket No. 15-1776
Issued: December 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 24, 2015 appellant filed a timely appeal from May 18 and June 5, 2015 merit
decisions of the Office of Workers’ Compensation Programs (OWCP) and an August 14, 2015
nonmerit decision.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit issues of
the case.

1

The Board notes that appellant submitted additional evidence after OWCP rendered its April 20, 2015 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1). Appellant may
submit this evidence to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § 606(b)(2).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation benefits effective May 19, 2015; and (2) whether OWCP properly denied his
request to reopen his case for further review of the merits of his claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 25, 2013 appellant, then a 44-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on June 21, 2013 he ruptured his right quadriceps tendon
after he slipped and fell on stairs. He stopped work on June 21, 2013.
OWCP accepted appellant’s claim for a rupture of the right quadriceps tendon. On
July 16, 2013 Dr. Mathew W. Pombo, a Board-certified orthopedic surgeon, performed a repair
of the right quadriceps tendon rupture. OWCP paid compensation benefits for total disability
beginning August 25, 2013.3
On June 28, 2014 OWCP referred appellant to Dr. Alexander N. Doman, a Boardcertified orthopedic surgeon, for a second opinion examination as to appellant’s work capacity.
On August 26, 2014 Dr. Doman reviewed the history of injury and the statement of
accepted facts. He noted that appellant was “extremely strong preoperatively and states that he
was squatting 500 pounds. He still feels relatively weak on the right leg compared to prior to his
injury.” On examination Dr. Doman found full flexion and extension of the right knee with no
instability, and normal muscle and quadriceps strength. He determined that appellant had no
objective findings of his accepted work injury. Dr. Doman related, “[He] does have excellent
overall strength of the quadriceps muscle. He may not have reached his maximum preinjury
strength, but his overall strength is excellent.” Dr. Doman opined that appellant could return to
his regular employment. In a work restriction evaluation dated August 26, 2014, he found that
he had no work limitations.
In a report dated November 19, 2014, Dr. Pombo noted that appellant was one year and
four months postsurgical repair of a right quadriceps tendon tear. He noted that appellant was
undergoing physical therapy and also “running and jumping for exercise, but states it [is]
irritating his back and knee.” On examination Dr. Pombo found full right knee motion without
swelling, a negative ligamentous examination, a negative McMurray’s test, full strength, and
mild patella tenderness. He noted that appellant complained of tenderness in the left knee.
Dr. Pombo diagnosed bilateral knee pain and a right quadriceps tendon rupture. He noted that
appellant had a separate claim for problems with his left lower back, hip, and left knee.
Dr. Pombo reviewed the results of an October 6, 2014 functional capacity evaluation (FCE)

3

On October 28, 2014 appellant filed a separate occupational disease claim alleging that he sustained a
consequential injury of the left leg. In a report dated August 18, 2014, Dr. Zouheir A. Shama, a surgeon, reviewed
appellant’s history of injury and noted that he was currently experiencing pain in his left leg and hip. He diagnosed
a quadriceps tendon tear after surgical repair, a left leg sprain, sacroiliac sprain, and hip sprain. Dr. Shama found
that appellant’s left leg condition occurred as a consequence of overcompensating for his right leg injury.

2

finding that appellant could perform heavy work. In a work slip dated November 19, 2014, he
determined that appellant could return to work without restrictions.
On January 30, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
benefits as both Dr. Pombo and Dr. Doman found that he had no further limitations as a result of
his accepted employment injury.
In an April 2, 2015 fitness-for-duty examination, Dr. Vincent E. Boswell, an orthopedic
surgeon, found that appellant could perform all job functions without any restrictions or need for
accommodation.
By decision dated May 18, 2015, OWCP terminated appellant’s wage-loss compensation
benefits based on the report of appellant’s treating physician, Dr. Pombo which established no
further employment-related disability. It noted that the second opinion physician also found him
able to resume full duty.
On May 28, 2015 appellant requested reconsideration. He submitted a request to change
attending physicians and resubmitted medical reports already of record. By decision dated
June 5, 2015, OWCP denied modification of its May 18, 2015 decision. It noted that appellant’s
request to change physicians was a separate issue from the termination of his compensation.
On August 4, 2015 appellant requested reconsideration. In a statement dated August 3,
2015, he related that Dr. Pombo failed to properly evaluate him for his back pain and numbness
of both legs. Dr. Bender performed a magnetic resonance imaging (MRI) scan study and
determined the reason for his continued quadriceps weakness and pain in the lower back and
bilateral knees.
A July 30, 2014 FCE, received by OWCP on June 16, 2015, indicated that appellant
could perform all the duties of his position with the exception of restraining inmates. An
October 6, 2014 FCE determined that he could resume his full employment without restrictions
and could perform heavy work.
In a report dated June 12, 2015, Dr. Jay B. Bender, a Board-certified physiatrist,
discussed appellant’s June 21, 2013 work injury and surgery on his quadriceps tendon. He noted
that he had persistent pain in his right knee, left hip, and lower back. Dr. Bender diagnosed a
right quadriceps rupture and repair, low back strain, and right hip strain. He opined that
appellant ruptured his quadriceps tendon when he fell at work on June 21, 2013.
On July 10, 2015 Dr. Bender indicated that he was evaluating appellant for a June 21,
2013 employment injury. On examination, he found reduced right knee flexion and extension
with crepitus and tenderness to palpation and a loss of spinal motion. Dr. Bender asserted, “Due
to my objective findings, and [appellant’s] job duties, I have determined that [he] is totally
incapacitated and unable to work at this time. He is unable to work with inmates due to his
physical incapacity, especially if sudden motion or physical activity is required.”
On July 17, 2015 Dr. Bender advised that an MRI scan revealed a herniated disc at L4-5
with a fragment at the L4 level more on the right.

3

By decision dated August 14, 2015, OWCP denied appellant’s request for reconsideration
after finding that he had failed to submit evidence or raise an argument sufficient to warrant
reopening his case for further review of the merits of his termination decision under 5 U.S.C.
§ 8128(a).
On appeal appellant argues that he advised Dr. Pombo and Dr. Doman that he was unable
to return to work due to low back pain, hip numbness, and bilateral weakness of the knees and
legs. Dr. Bender diagnosed a herniated disc as a result of his June 21, 2013 injury. Appellant
further contends that the therapist who performed the July and October 2014 FCE found that he
could not work as a correctional officer and noted that he had pain and tightness in his knees,
back, and hip. He further argues that the medical evidence supports his claim for consequential
conditions but that OWCP denied his consequential injury claim.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has determined that an employee has disability causally related to his
or her employment, it may not terminate compensation without establishing that the disability
ceased or that it was no longer related to the employment.4 OWCP must furnish rationalized
medical evidence based on a proper factual and medical background to support its termination of
compensation.5
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a rupture of the right quadriceps tendon on
June 21, 2013. On July 16, 2013 appellant underwent a repair of the right quadriceps tendon
rupture. OWCP paid him compensation for total disability beginning August 25, 2013. Based
on the opinions of Dr. Doman, an OWCP referral physician, and Dr. Pombo, his attending
physician, OWCP terminated his wage-loss compensation effective May 19, 2015.
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits as the opinions of Dr. Doman and Dr. Pombo establish that he had no
further disability due to his accepted employment injury. The August 26, 2015 report of
Dr. Doman reflected an evaluation to determine whether appellant had any further disability due
to his accepted right quadriceps tendon rupture. On examination, Dr. Doman found no loss of
motion or instability of the right knee and normal quadriceps strength. He opined that appellant
had exceptionally good strength and could resume his regular employment without limitations.
Dr. Doman based his opinion on a complete factual and medical background and provided
detailed findings on examination. Moreover, he reached medical conclusions regarding
appellant’s condition which comported with his findings.6 Dr. Doman explained that he had no
further objective findings of the accepted condition of a right tear of the quadriceps tendon.
4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001); 20 C.F.R. § 10.503.

5

See Gewin C. Hawkins, 52 ECAB 242 (2001).

6

M.R., Docket No. 14-1405 (issued December 22, 2015); Pamela K. Guesford, 53 ECAB 727 (2002).

4

Dr. Pombo’s November 19, 2014 report diagnosed bilateral knee pain and a right
quadriceps tendon rupture. On examination he found full range of motion and strength of the
right knee with no swelling and mild patella tenderness. Dr. Pombo noted that an October 6,
2014 FCE indicated that appellant could perform heavy work. He determined that appellant
could return to work without restrictions. As appellant’s attending physician, Dr. Pombo had a
thorough knowledge of appellant’s condition, his opinion is probative on the issue of whether
appellant had any further disability due to his accepted employment injury.7 The Board therefore
finds that OWCP properly relied upon Dr. Pombo’s opinion, as bolstered by the opinion of
Dr. Doman, in terminating his wage-loss benefits.
Subsequent to the termination, appellant submitted a request to change attending
physicians. As found by OWCP, this is a separate issue from the termination of his
compensation benefits.
On appeal appellant relates that he complained of back pain and lower extremity
weakness and numbness to Dr. Pombo and Dr. Doman. Dr. Bender found that a herniated disc
caused his back and lower extremity problems. OWCP, however, did not accept appellant’s
claim for any condition other than a rupture of the right quadriceps tendon. The issue is whether
he sustained any further disability due to his accepted condition of a right ruptured quadriceps
tendon as of May 19, 2015.8
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.10 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received within one year of the

7

See M.D., Docket No. 14-1981 (issued June 24, 2015).

8

JaJa K. Asaramo, 55 ECAB 200, 204 (2004) (where appellant claims that a condition not accepted or approved
by OWCP was due to his employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence).
9

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.”
10

20 C.F.R. § 10.606(b)(3).

5

date of that decision.11 When a claimant fails to meet one of the above standards, OWCP will
deny the application for reconsideration without reopening the case for review on the merits.12
The requirements for reopening a claim for merit review do not include the requirement
that a claimant submit all evidence which may be necessary to discharge his burden of proof.13
The requirements pertaining to the submission of evidence in support of reconsideration only
specifies that the evidence be relevant and pertinent and not previously considered by OWCP.14
If OWCP should determine that the new evidence submitted lacks substantive probative value, it
may deny modification of the prior decision, but only after the case has been reviewed on the
merits.15
ANALYSIS -- ISSUE 2
On August 4, 2015 appellant requested reconsideration of OWCP’s termination of his
compensation benefits. He argued that Dr. Pombo failed to properly evaluate his back and lower
extremity symptoms and his complaints of increased pain with physical therapy. Appellant
advised that Dr. Bender recommended additional surgery. He submitted medical evidence from
Dr. Bender and FCE’s dated July 30 and October 6, 2014 in support of his reconsideration
request.
By decision dated August 14, 2015, OWCP denied appellant’s request for
reconsideration as the evidence submitted and arguments raised were insufficient to warrant
reopening his case for further merit review.
In order to require merit review, it is not necessary that the new evidence be sufficient to
discharge appellant’s burden of proof. Instead, the requirement pertaining to the submission of
evidence in support of reconsideration only specifies that the evidence be relevant and pertinent
and not previously considered by OWCP.16 In a report dated June 12, 2015, Dr. Bender
diagnosed a ruptured tendon due to appellant’s June 21, 2013 work injury. On July 10, 2015 he
evaluated appellant in connection with his June 21, 2013 employment injury. Dr. Bender
provided examination findings of right knee reduced motion, tenderness to palpation, and
crepitus. He advised that appellant was not able to perform his usual employment as he was
unable to perform motion that required sudden movements. Dr. Bender’s July 10, 2015 report is
relevant to the issue of appellant’s ability to perform the duties of his employment. As his report
constituted pertinent new and relevant medical evidence, the Board finds that OWCP improperly
denied his request for review of the merits of the claim. The case will be remanded for OWCP to
conduct an appropriate merit review of the claim. Following this and such other development as
deemed necessary, it shall issue a de novo decision on the claim.
11

Id. at § 10.607(a).

12

Id. at § 10.608(b).

13

Donald T. Pippin, 53 ECAB 631 (2003).

14

Id.

15

See Annette Louise, 53 ECAB 783 (2003).

16

See supra note 13.

6

CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective May 19, 2015 as he had no further disability causally related to his June 21, 2013
employment injury. The Board further finds that OWCP improperly denied his request to reopen
his case for further review of the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
in accordance with this decision of the Board. The June 5 and May 18, 2015 decisions are
affirmed.
Issued: December 10, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy 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
__________________________________________
J.K., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Vancouver, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0064
Issued: July 16, 2020

Case Submitted on the Record

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

JURISDICTION
On October 8, 2018 appellant, through counsel, filed a timely appeal from an April 10,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of a
final adverse OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See
20 C.F.R. § 501.3(e)-(f). One hundred and eighty days from April 10, 2018, the date of OWCP’s last decision was
October 7, 2018. As this fell on a Sunday, appellant had until the following business day, Monday, October 8, 2018.
The appeal was therefore timely filed.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award effective August 11, 2017 as he refused an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On June 12, 2012 appellant, then a 55-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on June 11, 2012 he experienced eye irritation while in the performance
of duty. The employing establishment indicated that his duty station was Vancouver, Washington.
OWCP accepted the claim for right corneal ulcer and later expanded acceptance of the claim to
include right eye corneal pannus, right eye central corneal scarring and right eye corneal scarring.
Appellant stopped work on June 12, 2012 and returned to work on September 21, 2012. OWCP
paid him wage-loss compensation on the supplemental rolls from June 27 to September 13, 2012.
Appellant returned to modified-duty work on April 7, 2013. By decision dated May 16, 2014,
OWCP reduced appellant’s wage-earning capacity to zero as his actual earnings as a modified
maintenance mechanic effective April 7, 2013 fairly and reasonably represented his wage-earning
capacity.
Appellant stopped work again on June 29, 2015. OWCP found that the employing
establishment was unable to accommodate his restrictions and paid him wage-loss compensation
for total disability beginning that date. On January 26, 2018 appellant’s application for disability
retirement was approved due to keratitis.
In a report dated September 11, 2015, Dr. Mitchell V. Brinks, a Board-certified
ophthalmologist, found that appellant had vision loss, particularly in his right eye, and significantly
reduced depth perception. He advised that appellant could resume work if he could “avoid
dangerous situations such as navigating stairs and ladders, drop offs, and high voltage electrical
work.”
On February 17, 2016 OWCP referred appellant for vocational rehabilitation services
based on Dr. Brinks’ work restrictions.
On April 19, 2016 Dr. William Pettit, a Board-certified ophthalmologist, diagnosed a
corneal ulcer, keratitis, recurrent corneal erosions, blepharitis, corneal edema, rosacea,
dysfunctional tear film, corneal scarring including central opacity of the cornea, and floppy eyelid
syndrome. He noted that appellant could not see in one eye and had no depth perception. Dr. Pettit
advised that he could not be exposed to high temperatures, dirt, wind, excrement, dead animal
bodies, or live wires or use power tools. He further found that he could not drive a commercial

3

5 U.S.C. § 8101 et seq.

2

vehicle, direct others driving, climb ladders, use power tools, or be exposed to heights. Dr. Pettit
noted that appellant was at a risk for falling because he had no depth perception.
On June 16, 2016 the employing establishment offered appellant a position as a permanent,
full-time modified electrician in Vancouver, Washington effective July 24, 2016.
OWCP, on June 20, 2016, referred appellant to Dr. Richard H. Hopp, a Board-certified
ophthalmologist, for a second opinion examination.
In a report dated July 13, 2016, Dr. Hopp reviewed appellant’s history of injury and found
that his maximum corrected visual acuity in the right eye was 20/400 “with a high amount of
astigmatism present….” He noted that appellant had experienced 95 percent loss of visual function
in the right eye due to the industrial injury. Dr. Hopp diagnosed a corneal ulcer, corneal pannus,
and corneal scarring due to his employment injury, neurotrophic keratitis that might be an
underlying condition and that may have been aggravated by his injury, nuclear sclerosis unrelated
to the injury, and early cataracts unrelated to the injury. He opined that appellant was unable to
perform the full duties of an electrician. Dr. Hopp found that appellant could work full time and
related that, “[h]e would need to avoid exposure to potential ocular irritants such as smoke, wind,
corneal foreign bodies, and inclement outdoor weather. [Appellant] may be able to work indoors
for extended periods of time although his level of visual acuity is reduced and he would be limited
as to the fine detail work that he could do.”
On July 29, 2016 OWCP referred appellant’s case to a district medical adviser (DMA) to
determine whether the job offer dated June 16, 2016 was suitable. On July 29, 2016 the DMA
opined that the job offer as written was not suitable as it required exposure to hazardous substances.
On August 9, 2016 the employing establishment amended the June 16, 2016 modified
electrician job offer.
On October 18, 2016 Dr. Pettit tested appellant’s ability to see color and he failed all color
plates in the right eye and scored only 14 of 25 correct in the left eye indicating that he was redgreen colorblind.
On April 7, 2017 Dr. Pettit, at the request of an OWCP rehabilitation specialist, reviewed
the clerical positions of information clerk, customer service representative-complaint clerk and
appointment clerk for suitability. He advised that considering only appellant’s eyes it appeared
that he could perform the duties of the positions, but noted that he had other disabilities that may
preclude his performing each position. Dr. Pettit opined, “He has trouble with his hands and
cannot hear on a telephone and has other issues outside of my expertise.”
On April 24, 2017 the employing establishment offered appellant a permanent, full-time
position as a modified motor vehicle dispatcher in Portland, Oregon, effective June 11, 2017. The
duties included scheduling and dispatching vehicles through requests received verbally, in writing,
and via the computer, assessing vehicle status, entering vehicle mileage, assessing for damages,
maintaining logs, records and reports, and making individual work assignments. The work
required knowledge of computers, vehicle dispatch, applicable safety standards, and the ability to
understand maps and locator devices. The physical demands of the position included standing,

3

walking, bending, or sitting. The work environment was primarily in an office setting. The
employing establishment noted that additional technology and tools were available and instructed
appellant to contact the local reasonable accommodation coordinator to pursue training. It advised
that the assignment would remain within the physical restrictions of his attending physician.
In an e-mail dated June 12, 2017, OWCP advised that Dr. Pettit had found that appellant
could perform clerical positions considering only his accepted eye condition, but that appellant
had other disabilities that might prevent his performing the offered position. An official with the
employing establishment, in response, noted that OWCP had not provided Dr. Pettit with the motor
vehicle dispatcher position as it had not yet determined all the details of the job.
On June 16, 2017 the employing establishment confirmed that the April 24, 2017 modified
motor vehicle dispatcher job offer was still open and available.
By letter dated June 21, 2017, OWCP notified appellant that the offered position was
suitable and provided him 30 days to accept the position or provide reasons for his refusal. It
informed him that an employee who refused an offer of suitable work without cause was not
entitled to compensation.
On July 20, 2017 counsel asserted that the offered modified motor vehicle dispatcher
position was not suitable due to the accepted employment injury and appellant’s other medical
conditions. He noted that appellant had substantial visual disability, including from a left eye
condition. Counsel contended that the job offer was not specifically tailored to appellant’s work
restrictions and argued that he did not have the skills necessary to perform the duties of the
position, including the use of computers or transportation databases.
On July 24, 2017 the employing establishment again confirmed that the April 24, 2017
modified motor vehicle dispatcher job offer was still open and available.
On July 26, 2017 OWCP advised appellant that his reasons for refusing the position were
not valid and provided him 15 days to accept the positon or have his entitlement to wage-loss
compensation benefits terminated.
On August 1, 2017 appellant advised that he was not qualified to perform the duties in the
job offer. He asserted that he could not operate a computer or keyboard due to problems with his
vision and “debilitating hand and fingers issues.” Appellant also advised that he had hearing loss
and a history of a brain injury as a child. He maintained that he could not afford to relocate from
the rural area where he resided, noting that the offered position was 260 miles from his home.
Thereafter, OWCP received statements from appellant’s friends and coworkers who
supported that he struggled with cell phones and had no computer skills. It also received March 8
and May 30, 2017 reports from a nurse practitioner, who diagnosed right shoulder rotator cuff
impingement, right shoulder glenohumeral arthritis, right shoulder acromioclavicular
impingement, calcified tendinitis, and partial-thickness tear of the supraspinatus, infraspinatus,
subscapularis and long head of biceps tendon. The nurse practitioner recommended general weight
bearing activity as tolerated without limitations.

4

On June 23, 2017 Dr. Adrian T. Davis, a Board-certified orthopedist, on June 23, 2017,
diagnosed a right partial thickness rotator cuff tear and right glenohumeral arthritis by magnetic
resonance imaging (MRI) scan. He recommended arthroscopic surgery.
On August 9, 2017 counsel asserted that appellant required shoulder surgery which would
affect his ability to work. He maintained that the position was not physically or vocationally
suitable, noting that the vocational rehabilitation counselor assigned by OWCP had not provided
training.
By decision dated August 11, 2017, OWCP terminated appellant’s “entitlement to
compensation for wage-loss and schedule award” as he refused an offer of suitable work pursuant
to 5 U.S.C. § 8106(c)(2). It found that the position was in accordance with Dr. Pettit’s April 7,
2017 work restrictions. OWCP advised that the employing establishment had indicated that
appellant would receive training on the job, and the necessary technology to assist him in
performing the position.
On August 18, 2017 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
A telephonic hearing was held on January 16, 2018. Counsel contended that the employing
establishment had not searched for a position within appellant’s geographical area and that he had
no computer training.
Thereafter, appellant submitted additional evidence. A December 6, 2017 MRI scan of the
brain revealed small focus of posterior right frontal encephalomalacia with gliosis consistent with
a history of prior brain injury with surgery. An electroencephalogram (EEG) dated December 6,
2017 was normal. An electromyogram (EMG) dated December 23, 2017 revealed moderate
generalized axonal sensorimotor polyneuropathy as evidenced by abnormal sensory and motor
potential due to longstanding diabetes, mild-to-moderate bilateral C6, S1 radiculopathy as
evidenced by paraspinal and limb muscle denervation, and bilateral mild-to-moderate median
nerve entrapment across the wrists.
In a report dated January 2, 2018, Dr. Rodrigo R. Lim, a Board-certified neurologist,
advised that appellant had a neurologic diagnosis of post-traumatic brain injury at three years old
with neurosurgical evacuation of a cerebral hematoma on the right side of his brain with residual
left-sided clumsiness/weakness. He noted that he also had a history of “moderate diabetic
polyneuropathy, cervical and lumbosacral spine strain with radiculopathy, and bilateral carpal
tunnel syndrome.”
On February 5, 2018 the employing establishment asserted that it did not have facilities or
a business location within 50 miles of appellant’s geographical location. It advised that it had
periodically searched for positions in his local commuting area which was expanded when it failed
to yield results. The employing establishment asserted that appellant had used Outlook previously
as an employee and had taken online training courses. It related that the offered position did not
have an educational requirements and that it was offered under a modified qualification position.
The employing establishment indicated that appellant could learn computer skills during a 90-day

5

orientation period. It noted that it had advised him that he could contact a reasonable
accommodation coordinator to discuss tools, aids, or assistive technology.
In a February 15, 2018 response, appellant asserted that there was an employing
establishment substation in his town and requested proof that it had performed a geographical
search within his commuting area. He contended that the attached positions searched had been
performed in 2015 and 2016. Appellant advised that when he took classes using technology one
student would sign in and the entire crew would watch.
Appellant also submitted a statement from a supervisor, who indicated that he had worked
for him for four years and that during that time he did not use a computer or take any computer
training while working as an electrician.
By decision dated April 10, 2018, an OWCP hearing representative affirmed the
August 11, 2017 termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.4 Section 8106(c)(2) of FECA5 provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by or secured for the
employee is not entitled to compensation.6 To justify termination of compensation, it must show
that the work offered was suitable and must inform appellant of the consequences of refusal to
accept such employment.7 Section 8106(c) will be narrowly construed as it serves as a penalty
provision, which may bar an employee’s entitlement to compensation based on a refusal to accept
a suitable offer of employment.8
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.9 Section
10.516 of OWCP’s regulations provide that it will advise the employee that the work offered is
suitable and provide 30 days for the employee to accept the job or present any reasons to counter
OWCP’s finding of suitability.10

4

T.M., Docket No. 18-1368 (issued February 21, 2019); Linda D. Guerrero, 54 ECAB 556 (2003).

5

5 U.S.C. § 8101et seq.

6

5 U.S.C. § 8106(c)(2); see also M.J., Docket No. 18-0799 (issued December 3, 2018); Geraldine Foster, 54 ECAB
435 (2003).
7

J.V., Docket No. 17-1944 (issued December 18, 2018); Ronald M. Jones, 52 ECAB 190 (2000).

8

S.B., Docket No. 18-0039 (issued October 15, 2018); Joan F. Burke, 54 ECAB 406 (2003).

9

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 7.

10

Id. at § 10.516.

6

Before compensation can be terminated, however, OWCP has the burden of proof to
demonstrate that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, and establishing that a position has been offered within the employee’s
work restrictions and setting forth the specific job requirements of the position.11 In other words,
to justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision,
OWCP has the burden of showing that the work offered to and refused by appellant was suitable.12
Once OWCP establishes that the work offered is suitable, the burden of proof shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.13 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.14 OWCP
procedures state that acceptable reasons for refusing an offered position include medical evidence
of inability to do the work.15
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award effective August 11, 2017as appellant was
incapable of performing the offered positon of motor vehicle dispatcher.
In terminating appellant’s compensation benefits, OWCP primarily relied upon the opinion
of Dr. Pettit, his attending physician. Dr. Pettit opined that based solely on his eye condition, he
could perform clerical positions, but that he had other medical conditions that needed to be
considered. OWCP also obtained a second opinion from Dr. Hopp, who found that appellant could
work full time if not exposed to ocular irritants or inclement weather, or required to perform duties
requiring visual acuity.
In an April 19, 2016 report, Dr. Pettit diagnosed a corneal ulcer, keratitis, recurrent corneal
erosions, blepharitis, corneal edema, rosacea, dysfunctional tear film, corneal scarring including
central opacity of the cornea, and floppy eyelid syndrome. He noted that appellant could not see
in one eye and had no depth perception. Dr. Pettit advised that he should not be exposed to high
temperatures, dirt, wind, excrement, dead animal bodies, or live wires or use power tools, that he
could not use dangerous equipment, drive a commercial vehicle or direct others driving a vehicle,
and that he could not climb ladders or be exposed to heights because he was a fall risk due to his
limited vision. In an October 18, 2016 report, Dr. Pettit determined that appellant was unable to
see color in the right eye and was red-green colorblind in the left eye.

11

M.H., Docket No. 17-0210 (issued July 3, 2018).

12

J.V. supra note 7; Linda Hilton, 52 ECAB 476 (2001).

13

20 C.F.R. § 10.517(a).

14

D.M., Docket No. 17-1235 (issued February 15, 2018); Gayle Harris, 52 ECAB 319 (2001).

15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4)
(June 2013).

7

On April 7, 2017 Dr. Pettit reviewed the clerical positions of information clerk, customer
service representative-complaint clerk and appointment clerk for suitability. He advised that it
appeared that he could perform the duties of the positions considering only appellant’s eye
condition. Dr. Petit found, though, that he had other disabilities that limited his physical ability to
perform the job duties, including difficulties with his hands and hearing, as well as other issues
that were out of his medical expertise. The Board has held that the issue of whether a claimant is
able to perform the duties of an offered position is a medical question that must be resolved by
probative medical evidence.16 In order for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence must clearly and unequivocally establish that the claimant could
perform the duties of the offered position.17 It, however, did not further develop the evidence to
clarify whether appellant had a condition that would prevent him from performing the offered
position.
OWCP further failed to provide either Dr. Pettit or Dr. Hopp with the opportunity to review
the position description for the job offered by the employing establishment of motor vehicle
dispatcher so that they could render an opinion regarding whether he could perform the required
duties.18 Accordingly their opinions are insufficient to establish appellant’s limitations as it does
not consider all of medical conditions.19
As previously noted, OWCP must consider all of appellant’s conditions, preexisting, workrelated, and subsequently-acquired, in determining whether a position is suitable.20 Additionally,
as a penalty provision, section 8106(c)(3) must be narrowly construed.21 Based on the evidence
of record, the Board finds that OWCP improperly determined that the modified position offered to
appellant constituted suitable work within his physical limitations and capabilities. The record
does not substantiate that OWCP properly considered the entity of his medical conditions before
terminating his wage-loss compensation and entitlement to a schedule award.22 Consequently,
OWCP did not meet its burden to justify the termination of appellant’s compensation benefits
pursuant to section 8106(c)(2).
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award effective August 11, 2017.

16

K.Y., Docket No. 19-1079 (issued November 14, 2019); Gayle Harris, 52 ECAB 319 (2001).

17

C.E., Docket No., 19-0614 (issued November 1, 2019); S.D., Docket No. 18-1641 (issued April 12, 2019).

18

See A.B., Docket No. 15-1947 (issued March 14, 2016).

19

See J.B., Docket No. 08-0684 (issued September 11, 2008).

20

See S.B., Docket No. 18-0039 (issued October 15, 2018).

21

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

22

See K.S., Docket No. 19-0082 (issued July 29, 2019); D.H., Docket No. 17-1014 (issued October 3, 2017).

8

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: July 16, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 07-806
Issued: September 12, 2007

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 February 1, 2007 appellant filed a timely appeal from a November 30, 2006 nonmerit
decision denying her request for reconsideration. Because more than one year has elapsed
between the last merit decision dated September 29, 2005 and the filing of this appeal on
February 1, 2007, the Board lacks jurisdiction to review the merits of her claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 11, 2003 appellant, then a 51-year-old distribution clerk, filed a traumatic
injury claim alleging that on December 1, 2003 she felt a pop in her left elbow while placing a
package into a cart. The Office accepted her claim for bilateral epicondylitis. Appropriate

treatment and compensation benefits were authorized.
retirement disability, which was approved January 2006.

Appellant subsequently applied for

On January 18 and February 14, 2005 the employing establishment offered appellant a
position as a modified distribution window clerk, based on the restrictions Dr. Edward Van
Tassel, an osteopath, had outlined. In a report dated April 7, 2004, Dr. Van Tassel released
appellant to work with certain restrictions. The restrictions included no lifting, pushing, pulling
and grasping over five pounds. In a May 19, 2004 report, Dr. Van Tassel presented his
examination findings and opined that appellant was not a surgical candidate and her condition
was fixed and stable. In a December 30, 2004 report, he provided an assessment of bilateral
forearm and elbow pain of undetermined etiology and probably diffuse tendinitis. Dr. Van
Tassel stated that he did not know of any other modalities he could apply as an orthopedic
surgeon and was concerned that appellant’s recent onset of allergies and intolerance to medicine
may be an immunologic or neurologic source of her symptoms. He advised that the work
restrictions were based on pain and should remain as stated unless a physical capacity evaluation
dictated otherwise.
By letter dated February 16, 2005, the Office found the modified distribution clerk
position suitable.
On February 21, 2005 appellant requested authorization to change physicians. She
indicated that Dr. Van Tassel would not respond to her telephone calls or other correspondence,
nor did he follow through on correspondence for her to see other specialists.
On March 17, 2005 appellant returned to work. On March 22, 2005 she stopped work.
On March 23, 2005 appellant underwent a functional capacity evaluation which Dr. Van Tassel
recommended. The evaluation indicated that she could lift, pull, carry and grasp 5 to 15 pounds.
By decision dated March 25, 2005, the Office denied appellant’s request to change
physicians from Dr. Van Tassel. It found that the evidence did not demonstrate that she was not
receiving proper and adequate care from Dr. Van Tassel.
After the Office advised appellant that the offered position was suitable and within her
medical limitation, she did not return to the job that she stopped performing on March 22, 2005.
By decision dated August 8, 2005, the Office terminated appellant’s compensation benefits on
the grounds that she abandoned suitable work.
Appellant requested review of the written record. By decision dated September 29, 2005,
an Office hearing representative affirmed the Office’s decisions dated March 25 and
August 8, 2005.
In a letter dated October 11, 2005, appellant requested a change to Dr. Danke or one of
his associates, as Dr. Van Tassel was no longer in the area. By letter dated October 21, 2005, the
Office approved appellant’s request to change physicians to Dr. Danke. In a letter dated
November 15, 2005, appellant notified the Office that Dr. Danke was getting ready to retire. She
requested that the Office authorize Robert Barber, a physician’s assistant, until Dr. Danke’s

2

replacement, Dr. Hufman, joined the practice. In a letter dated November 29, 2005, the Office
advised appellant that Dr. Hufman was authorized to treat her and that she could see Mr. Barber
in the meantime.
In a letter dated September 11, 2006, appellant requested reconsideration of the
September 29, 2005 decision. She requested that the Office recognize the treatment Dr. Danke,
Dr. Hufman and Mr. Barber provided and consider their opinions. Appellant referenced several
medical reports from March 2005 which she stated were sufficient to reverse the Office’s
September 29, 2005 decision concerning her failure to accept suitable work. She also provided
copies of medical reports from March 17, 2004 to March 30, 2005, which were previously
submitted and considered. New evidence consisted of a December 8, 2005 report from
Mr. Barber, a physician assistant, and a January 6, 2006 medical report from Dr. Hufman, a
Board-certified family practitioner. In his January 6, 2006 report, Dr. Hufman provided an
assessment of bilateral arm pain. He opined that appellant’s injury was resolved and she had a
type of hyperalgesia from the nerve.
By decision dated November 30, 2006, the Office denied appellant’s request for
reconsideration on the grounds that she had failed to raise a substantive legal question and had
not presented new and relevant evidence.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.2
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.3
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.4 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 10.605.

3

20 C.F.R. § 10.606.

4

Donna L. Shahin, 55 ECAB 192 (2003).

5

20 C.F.R. § 10.608.

3

ANALYSIS
In her request for reconsideration, appellant did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. She requested that the Office recognize Dr. Danke,
Dr. Hufman and Mr. Barber, a certified physician’s assistant, as her physicians. In letters dated
October 21 and November 29, 2005, the Office approved appellant’s change of physicians to
Dr. Danke and Dr. Hufman. It also stated in its November 29, 2005 letter, that it would
authorize treatment with Mr. Barber, a physician’s assistant. Thus, appellant’s argument is moot
as the Office had previously granted her request to change physicians prior to the reconsideration
request. Her assertions also do not offer a relevant legal argument in support of her contention
that the Office improperly terminated her monetary benefits. The Board finds that appellant is
not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).6
With respect to the third requirement under section 10.606(b)(2), appellant did not submit
any relevant and pertinent new evidence not previously considered by the Office.7 In support of
her reconsideration request, appellant cited to and provided copies of medical reports from
March 17, 2004 to March 30, 2005 which were of record before the Office’s September 29, 2005
decision and, thus, previously considered. Evidence that repeats or duplicates evidence already
in the case record has no evidentiary value and does not constitute a basis for reopening a case.8
Appellant also submitted a December 8, 2006 report from Mr. Barber. This report is of no
probative medical value as the Board has found that a physician’s assistant is not a physician as
defined under the Act and, therefore, is not competent to provide medical evidence.9 The
January 6, 2006 report from Dr. Hufman, while new, is not relevant to the issue of whether the
Office properly terminated appellant’s wage loss for abandonment of suitable work. Dr. Hufman
did not specifically address whether appellant was able to perform the job of modified
distribution clerk at the time that the Office found that appellant had abandoned such position.
Rather, he found the work-related injury to be resolved and he felt that appellant’s condition was
more a type of hyperalgesia from the nerve.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2). Accordingly, the Office properly denied appellant’s request for merit review.

6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.608(b)(1) and (2).

8

Edward W. Malaniak, 51 ECAB 279 (2000); Eugene F. Butler, 36 ECAB 393 (1984).

9

5 U.S.C. § 8101(2); see Ricky S. Storms, 52 ECAB 349 (2001).

4

CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review.
ORDER
IT IS HEREBY ORDERED THAT the November 30, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2007
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
__________________________________________
S.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ST. ALBANS EXTENDED CARE CENTER,
St. Albans, NY, Employer
__________________________________________

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

Docket No. 09-539
Issued: September 2, 2009

Case Submitted on the Record

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

JURISDICTION
On December 18, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated July 23 and November 17, 2008, finding that she
did not sustain an injury while in the performance of duty. Pursuant to 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 has established that she sustained a back injury in the
performance of duty on May 14, 2008, as alleged.

FACTUAL HISTORY
On May 15, 2008 appellant, then a 24-year-old food service worker, filed a traumatic
injury claim alleging that on May 14, 2008 she experienced pain in her lower back and buttocks
as a result of slipping on water.1 She stopped work on May 16, 2008.
By letter dated June 18, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested medical evidence, including a rationalized
medical report from an attending physician which described a history of injury, dates and results
of examination and tests, diagnosis, treatment provided, and opinion with medical reasons
establishing that the diagnosed condition was caused or aggravated by the May 14, 2008
incident. Appellant was afforded 30 days to submit the requested evidence.
An unsigned hospital report dated May 16, 2008 stated that appellant’s back pain was
most likely caused by a strain of the muscles or ligaments that support the spine. In a May 16,
2008 disability certificate, a physician whose signature is illegible stated that appellant was
disabled from work as of that date.
In form reports dated May 19 and July 3, 2008, Dr. Stephen C. Sirota, an attending
Board-certified physiatrist, reviewed a history that appellant slipped on a wet floor at work on
May 19, 2008. He diagnosed degenerative disc disease of the lumbar spine. Dr. Sirota indicated
with an affirmative mark that the diagnosed condition was caused by an employment activity. In
a May 19, 2008 narrative report, he reported findings on physical examination which included
decreased range of motion and pain in the back. Regarding the lower extremities, Dr. Sirota
reported 5/5 strength, intact sensation and deep tendon of 2/2. An x-ray of the lumbosacral spine
demonstrated disc space narrowing at L5-S1. No fracture or dislocation was identified.
Dr. Sirota diagnosed possible lumbosacral herniated disc and radiculitis/radiculopathy. He stated
that appellant would start a physical therapy program for her new work-related injury which
occurred on May 15, 2008. In a June 2, 2008 report, Dr. Sirota provided essentially the same
findings as in his May 19, 2008 report. He ruled out lumbosacral herniated disc and
radiculitis/radiculopathy.
By decision dated July 23, 2008, the Office denied appellant’s claim. It found the
evidence insufficient to establish that the claimed injury was causally related to factors of her
employment. On August 15, 2008 appellant requested a review of the written record by an
Office hearing representative.
In reports dated August 4, September 8 and October 27, 2008, Dr. Sirota reiterated his
prior diagnosis of lumbosacral degenerative disc disease. In the August 4, 2008 report, he
opined that appellant’s condition had significantly worsened and that it was caused by a May 15,
2008 work incident. In disability certificates dated August 4 and September 8, 2008, Dr. Sirota
stated that appellant was totally disabled until October 6, 2008.

1

Prior to the instant claim, the Office accepted appellant’s claims for a right hand sprain sustained on July 25,
2005, a left shoulder contusion sustained on March 21, 2007 and a lumbosacral sprain sustained on July 20, 2007;
Office File No. xxxxxx021.

2

By decision dated November 17, 2008, an Office hearing representative affirmed the
July 23, 2008 decision. She found the evidence sufficient to establish that the May 14, 2008
incident occurred at the time, place and in the manner alleged; however, the medical evidence
was insufficient to establish an injury causally related to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of 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 timely filed
within the applicable time limitation period 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.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. 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 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment, is
sufficient to establish a causal relationship.6

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Solomon Polen, 51 ECAB 341 (2000).

6

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

3

ANALYSIS
The Office accepted that appellant slipped on water on May 14, 2008 while working as a
food service worker at the employing establishment. The Board finds, however, that the medical
evidence submitted is insufficient to establish that her diagnosed lumbosacral degenerative disc
disease was caused or aggravated by the May 14, 2008 employment incident.
The unsigned May 16, 2008 hospital report stating that appellant’s back pain was most
likely caused by a strain of the muscles or ligaments that support the spine and May 16, 2008
disability certificate of the physician whose signature is illegible indicating that appellant was
totally disabled from work commencing on that date are insufficient to establish appellant’s
claim. It is unclear from the signature on the disability certificate whether the examiner was a
physician. The Board has previously held that reports submitted that are unsigned or that bear
illegible signatures cannot be considered as probative medical evidence, in that they lack proper
identification.7
Dr. Sirota’s May 19 and July 3, 2008 form reports indicated with an affirmative mark that
appellant’s degenerative disc disease of the lumbar spine was caused or aggravated by a May 19,
2008 work incident. Reports which only address causal relationship with a check mark without
more by way of medical rationale explaining how the incident caused the injury, is insufficient to
establish causal relationship and is of diminished probative value.8 Dr. Sirota did not explain
how the diagnosed condition was caused or contributed to by the accepted May 14, 2008
employment incident. Further, the Board notes that, in his July 3, 2008 report, he incorrectly
stated that the accepted employment incident occurred on May 19, 2008 rather than on
May 14, 2008.
The Board finds that Dr. Sirota’s reports are insufficient to establish that
appellant sustained a back injury causally related to the accepted employment incident.
Similarly, Dr. Sirota’s September 8, 2008 report which found that the worsening of
appellant’s lumbosacral degenerative disc disease was causally related to a May 15, 2008 work
incident is insufficient to establish appellant’s claim. This evidence failed to explain how the
diagnosed condition was caused or contributed to by the accepted May 14, 2008 employment
incident. Further, Dr. Sirota again provided an incorrect date on which the accepted employment
incident occurred.
In a May 19, 2008 narrative report, Dr. Sirota provided findings on physical and x-ray
examination and opined that appellant sustained possible lumbosacral herniated disc and
radiculitis/radiculopathy. His August 4 and September 8, 2008 disability certificates found that
appellant was totally disabled until October 6, 2008. This evidence, however, does not contain a
firm diagnosis of a back condition and failed to discuss how the diagnosed condition was caused
by the accepted employment incident. As Dr. Sirota’s report and disability certificates do not
contain a firm diagnosis and a reasoned medical opinion regarding the cause of appellant’s

7

Thomas L. Agee, 56 ECAB 465 (1985); see Merton J. Sills, 39 ECAB 572 (1988).

8

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

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current back condition, they are insufficient to establish that she sustained an employment injury
causally related to the May 14, 2008 employment incident.9
Dr. Sirota’s June 2, 2008 report ruled out lumbosacral herniated disc and
radiculitis/radiculopathy. He did not address whether appellant sustained a back condition
caused or contributed to by the accepted employment incident.
Dr. Sirota’s August 4 and October 27, 2008 reports found that appellant suffered from
lumbosacral degenerative disc disease. He did not explain how the diagnosed condition was
caused or contributed to by the accepted employment incident.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back injury causally related to the accepted May 14, 2008
employment incident. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back injury in
the performance of duty on May 14, 2008, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the November 17 and July 23, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 2, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
9

See Willie M. Miller, 53 ECAB 697 (2002).

5