United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF DEFENSE, MARINE
CORPS BASE, Camp Pendleton, CA, Employer
__________________________________________

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

Docket No. 09-556
Issued: October 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 22, 2008 appellant filed a timely appeal from the October 14, 2008 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative, who affirmed
the reduction of appellant’s compensation to zero for her failure to cooperate with vocational
rehabilitation efforts. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.1
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to zero for
failure to cooperate with vocational rehabilitation efforts.

1

The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c). The Board therefore has no jurisdiction to review the February 8, 2009 Form CA-20
or the April 13, 2009 narrative medical report appellant submitted on appeal.

FACTUAL HISTORY
On December 10, 2003 appellant, then a 47-year-old special assistant, filed an
occupational disease claim alleging that her emotional stress, anxiety and depression were
causally related to her federal employment. The Office accepted her claim for the condition of
major depressive disorder, single episode. It paid compensation for wage loss on the periodic
rolls.
The Office referred appellant for vocational rehabilitation services. It learned that she
was on an extended trip out of state to visit family and would not return for several months. The
Office advised appellant on April 22, 2008 that she was impeding the initial vocational
rehabilitation services. It directed her to contact both the Office and the rehabilitation specialist
within 30 days to make a good faith effort to participate in the rehabilitation effort. The Office
notified appellant of 5 U.S.C. § 8113(b) and the implementing regulations and gave her 30 days
to show good cause for not participating in the effort. No response was received.
In a decision dated May 28, 2008, the Office reduced appellant’s compensation for wage
loss to zero for refusal to participate in vocational rehabilitation.
On June 12, 2008 the Office received a May 5, 2008 note from appellant’s psychiatrist,
Dr. Margarita M. Alonso, who stated: “At this time I do not recommend my patient to be
involved in [v]oc[ational] [r]eh[abilitation] due to returning symptoms of depression and
anxiety.” Appellant subsequently requested a review of the written record by an Office hearing
representative.
On August 19, 2008 the Office received Dr. Alonso’s June 30, 2008 report: “At this time
I do not recommend my patient be involved in [v]ocational [r]ehabilitation due to returning
symptoms of depression and anxiety. The patient will be reevaluated for this purpose on
December 31, 2008.”
In a decision dated October 14, 2008, an Office hearing representative affirmed the
reduction of appellant’s wage-loss compensation to zero. The hearing representative found that
Dr. Alonso failed to provide any findings on examination or a rationalized medical opinion
explaining how appellant’s disability for work was causally related to the accepted factors of
employment, which occurred before August 11, 2003, and not to some intervening factors,
including the personal matters she was attending to on her trip.
LEGAL PRECEDENT
Section 8104(a) of the Federal Employees’ Compensation Act provides: “The [Office]
may direct a permanently disabled individual whose disability is compensable under this
subchapter to undergo vocational rehabilitation. The Secretary shall provide for furnishing the
vocational rehabilitation services.”2

2

5 U.S.C. § 8104(a).

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Section 8113(b) of the Act provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would have probably been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”3
Section 10.519 of the implementing regulations provide:
“Under 5 U.S.C. § 8104(a), [the Office] may direct a permanently disabled
employee to undergo vocational rehabilitation. To ensure that vocational
rehabilitation services are available to all who might be entitled to benefit from
them, an injured employee who has a loss of wage-earning capacity shall be
presumed to be ‘permanently disabled,’ for purposes of this section only, unless
and until the employee proves that the disability is not permanent. If an employee
without good cause fails or refuses to apply for, undergo, participate in, or
continue to participate in a vocational rehabilitation effort when so directed, [the
Office] will act as follows:
(a) Where a suitable job has been identified, [the Office] will reduce the
employee’s future monetary compensation based on the amount which
would likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. [The Office] will determine this
amount in accordance with the job identified through the vocational
rehabilitation planning process, which includes meeting with the [Office]
nurse and the employer. The reduction will remain in effect until such
time as the employee acts in good faith to comply with the direction of
[the Office].
(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meetings with the [Office] nurse, interviews,
testing, counseling, functional capacity evaluations, and work
evaluations), [the Office] cannot determine what would have been the
employee’s wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, [the Office] will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity, and [the Office] will reduce the
employee’s monetary compensation accordingly (that is, to zero). This
3

Id. at § 8113(b).

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reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of [the Office].”4
Given the variety of reasons which claimants may offer for noncooperation, and the
circumstances in which these reasons may be offered, it is impossible to establish a definitive list
of acceptable and unacceptable reasons for lack of cooperation. In general, however, a claimant
is expected to treat the vocational rehabilitation effort as seriously as employment and reasons
for lack of cooperation should be considered in this light. A situation which would be
considered a valid reason for absence from work (e.g., an illness) may be considered good cause
for failure to cooperate with vocational rehabilitation for a reasonable period of time.5
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.6 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.7
ANALYSIS
The issue is whether appellant established good cause for her failure to undergo
vocational rehabilitation when so directed. The Office found that Dr. Alonso, appellant’s
psychiatrist, failed to provide findings on examination and a rationalized medical opinion
explaining how appellant’s disability for work was causally related to the accepted factors of
employment, which occurred before August 11, 2003, and not to some intervening factors,
including the personal matters she was attending to on her trip. Appellant contends that she
complied with the Office’s April 22, 2008 request for information. She argues that she was only
doing what her doctor recommended.
In the case of Mary Ann J. Aanenson,8 the employee’s doctor withdrew her from
vocational rehabilitation for a period of 60 days because she did not have the alertness or
capacity to absorb the material in her computer classes. The Board found in that case that the
employee’s failure to cooperate with vocational rehabilitation was due to her doctor’s
recommendation that she not do so. The employee discontinued her participation in the training
on his recommendation. The Board held that the evidence supported that her failure to continue
the training program was with good cause.
The circumstances in the present case are similar. Appellant was not already
participating in vocational rehabilitation, and Dr. Alonso did not give as clear an explanation.

4

Id. at § 10.519.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.12.a (November 1996).
6

5 U.S.C. § 8102(a).

7

Harold S. McGough, 36 ECAB 332 (1984).

8

53 ECAB 761 (2002).

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The fact remains that her failure to undergo vocational rehabilitation when so directed was due to
her doctor’s recommendation that she not do so. Dr. Alonso recommended against it.
In Yusuf D. Amin,9 a psychiatrist and a clinical psychologist substantiated that the
employee’s headaches, as well as his accepted emotional condition, caused marked interference
with his ability to comprehend and follow instructions and marked impairment of other skills,
such as the ability to make generalizations or decisions, necessary to carry out vocational testing
activities. The Board held: “As appellant did substantiate his allegation of inability to
participate in vocational rehabilitation, with medical evidence, appellant did establish ‘good
cause’ for his failure to fully cooperate with vocational rehabilitation.”10
The Office never notified appellant or Dr. Alonso that such additional rationale was
required to avoid the penalty under section 8113(b) of the Act. Office procedures provide
guidance on how to evaluate reasons for lack of cooperation. A situation which would be
considered a valid reason for absence from work, an illness, for example, may be considered
good cause for failure to cooperate with vocational rehabilitation for a reasonable period of time.
Considering Dr. Alonso’s recommendation in that light, the Board finds that appellant has made
a prima facie showing for not participating in vocational rehabilitation. If the Office wanted
more information from Dr. Alonso to clarify how returning symptoms of depression and anxiety
would interfere with vocational rehabilitation efforts, it should have developed that evidence.
The Office has the burden of proof to justify any modification of appellant’s
compensation for wage loss, including any reduction under section 8113(b) of the Act. Where
appellant has submitted prima facie evidence that she was following her doctor’s orders not to
undergo vocational rehabilitation, the Board finds that the Office did not meet its burden to
justify the penalty under section 8113(b). The Board will therefore reverse the Office hearing
representative’s October 14, 2008 decision.
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation to zero for
failing to cooperate with vocational rehabilitation efforts.

9

47 ECAB 804 (1996).

10

Cf. David L. Maes, 54 ECAB 727 (2003) (the doctor did not address the claimant’s capacity to participate in
the functional capacity evaluation, so the evidence did not support the claimant’s assertion that his doctor advised
against it); S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008) (the claimant submitted no medical
evidence to establish she had a medical condition that prevented her from enrolling in school and attending class);
R.H., 58 ECAB ___ (Docket No. 07-74, issued August 16, 2007) (the claimant asserted she could not meet with the
rehabilitation counselor or drive to work due to his medication, but he submitted no medical evidence from his
physician to support that contention); F.R., 58 ECAB ___ (July 10, 2007) (progress notes merely summarizing
treatment sessions and containing no opinion on disability did not show good cause for failing to participate in
vocational rehabilitation).

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ORDER
IT IS HEREBY ORDERED THAT the October 14, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 1, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eatontown, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1830
Issued: May 23, 2013

Case Submitted on the Record

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

JURISDICTION
On September 5, 2012 appellant, through her attorney, filed a timely appeal from an
August 23, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Because more than 180 days elapsed from the most recent merit decision dated January 5, 2012
to the filing of this appeal, the Board lacks jurisdiction to review the merits of the case1 pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2009 appellant, then a 56-year-old express clerk, filed a traumatic injury
claim alleging that on that day she suffered intense pain in her hip/groin area over her right leg.
She stated that the mail hamper wheels did not swivel/move as they were supposed to and the
pressure she applied with her right leg to get the cart back into the “tight” set up caused the
pulling, tearing feeling at the hip/groin area over her right leg. OWCP accepted the claim for
right hip sprain. Appellant did not work from December 3, 2009 through January 3, 2010. She
returned to full-time regular duty on January 4, 2010.
Appellant stopped work on June 15, 2010 and did not return. On June 20, 2010 she filed
a recurrence claim alleging that her June 15, 2010 work stoppage was causally related to her
December 1, 2009 work injury. In support of her claim of recurrence of disability, appellant
submitted several reports from Dr. Michael J. Cunningham, a Board-certified orthopedic
surgeon. In a June 15, 2010 report, Dr. Cunningham noted appellant’s history of injury and
diagnosed right hip avascular necrosis, stage four. He did not offer an opinion regarding the
cause of the avascular necrosis. Dr. Cunningham discussed continued conservative treatment
and total hip replacement with appellant. On June 25, 2010 he requested authorization for total
hip replacement. On August 30, 2010 OWCP also received a July 20, 2010 addendum report
from Dr. Kimberly Atienza, an internist, who summarized appellant’s continued treatment for
hip pain. Dr. Atienza concluded that following June 14, 2010 appellant’s hip pain recurred and
she was no longer physically able to work.
By decision dated November 9, 2010, OWCP denied the recurrence claim as the factual
and medical evidence were insufficient to establish that the claimed recurrence resulted from the
accepted work injury.
On November 15, 2010 appellant requested a hearing, which was held March 31, 2011.
At the hearing, she asserted that her avascular necrosis and right shoulder condition were
attributable to her accepted hip injury. On June 5, 2011 appellant submitted a series of reports
from Dr. Cunningham. In an August 10, 2010 report, Dr. Cunningham stated an impression of
“probable avascular necrosis with severe degenerative changes of the right hip.” He did not
provide an opinion regarding the cause of the conditions. On September 9 and 23, 2010
Dr. Cunningham noted an impression of “severe degenerative changes of the right hip, secondary
to injury sustained on December 1, 2009.” On November 4, 2010 he noted an impression of
“severe degenerative changes of the right hip, secondary to hip injury, including the sprain,
which occurred on December 1, 2009 originally with a reinjury occurring on June 14, 2010, as
previously described, as well.” Records from the Bayshore Community Hospital dated
January 19, 2011 state that appellant underwent a total right hip replacement on
January 19, 2011. Appellant’s postoperative diagnosis was stated as right hip osteoarthritis.
By decision dated June 28, 2011, an OWCP hearing representative affirmed the
November 9, 2010 decision. The hearing representative found that appellant had not established
that the necrotic hip condition was related to the December 1, 2009 work incident or that the
medical evidence was sufficient to support that the accepted hip strain was the cause of her
June 15, 2010 recurrence of disability.

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On October 3, 2011 appellant’s attorney requested reconsideration of the June 28, 2011
OWCP decision. He argued that Dr. Cunningham provided medical support to establish that the
recurrence of injury beginning June 14, 2010 and appellant’s subsequent right hip replacement
surgery were directly related to the December 1, 2009 work injury. Counsel also contended that
appellant aggravated her right shoulder condition as a result of her hip replacement surgery and
rehabilitation. Additional progress reports from Dr. Cunningham were received. In a March 15,
2011 report, he related diagnoses of status post total right hip replacement, bilateral shoulder
impingement and possible early mild right carpal tunnel symptoms. Dr. Cunningham did not
offer any opinion regarding the cause of these conditions. On April 26, 2011 he noted an
impression of “status-post right total hip replacement with some intermittent pain.
Dr. Cunningham repeated the hip and shoulder diagnoses on May 10 and June 14, 2011, but
again offered no opinion regarding the cause of these conditions.
In a narrative report dated October 10, 2011, Dr. Cunningham explained that he had been
treating appellant for her right hip injury since June 15, 2010. At that time an x-ray evaluation
performed in his office revealed severe degenerative changes of the right hip, consistent with
avascular necrosis, stage four. Dr. Cunningham stated that he also reviewed an x-ray from the
date of injury, December 1, 2009, which revealed some mild irregularity of the femoral head,
which was consistent with an early collapse of the articular surface, consistent with early
avascular necrosis. He concluded that, based upon these radiographic findings, appellant’s
accepted injury resulted in a severe exacerbation of a previously undiagnosed underlying
condition, avascular necrosis of the right hip, which necessitated the right hip replacement.
By decision dated January 5, 2012, OWCP denied modification of the June 28, 2011
decision. It found that the medical evidence failed to establish that the claimed recurrence of
disability of June 15, 2010 was related to the accepted injury of December 1, 2009 by proximate
causation, precipitation, acceleration or aggravation.
Specifically, OWCP found that
Dr. Cunningham failed to provide a well-reasoned explanation as to how avascular necrosis of
the right hip was aggravated by the December 1, 2009 employment incident and whether and
how the accepted right hip sprain caused the claimed June 15, 2010 recurrence of disability.
On May 25, 2012 appellant, through counsel, requested reconsideration. He argued that
Dr. Cunningham’s report supported a causal relationship between appellant’s right hip condition
and surgery that was performed on January 19, 2011 and her December 1, 1999 work injury.
Counsel further requested that OWCP expand the claim to include right shoulder and right carpal
tunnel conditions as a result of stress put on the shoulder from appellant’s altered gait, as
discussed in Dr. Cunningham’s report. Medical evidence previously of record was submitted
along with January 5 and May 17, 2012 reports from Dr. Cunningham.
In the January 5, 2012 report, Dr. Cunningham related appellant’s diagnoses as status
post right hip replacement, chronic low back pain, rule out carpal tunnel syndrome and status
post old right shoulder arthroscopy with recurrent impingement symptoms.
In his May 17, 2012 report, Dr. Cunningham noted that he first saw appellant on June 15,
2010 for complaints of right hip pain. He again related that he performed x-rays on that date
which revealed stage four avascular necrosis with severe degenerative changes. Dr. Cunningham
noted the history of appellant’s December 1, 2009 work injury and indicated that, when he

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evaluated x-rays taken on the date of injury, they revealed mild irregularity of the femoral head
consistent with the earliest stages of avascular necrosis. He performed a total right hip
replacement surgery on January 19, 2011. Dr. Cunningham noted her progress postoperatively
including bilateral shoulder pain and mild flare of carpal tunnel syndrome as a result of the pain
and walker usage related to the surgery. He diagnosed avascular necrosis of the right hip, with
right hip strain; low back pain with right radiculopathy; carpal tunnel syndrome right wrist and
right shoulder impingement syndrome. Dr. Cunningham opined that the work-related right hip
strain exacerbated appellant’s previous underlying hip pathology of avascular necrosis of the
right hip and that the worsening of appellant’s hip degeneration caused the recurrence of
disability. He opined that appellant’s low back pain, with right radiculopathy, was related to the
work injury as a consequence of the stress from gait alteration, as a result of the injury and
subsequent hip problems. Dr. Cunningham also opined that the carpal tunnel syndrome and right
shoulder impingement syndrome, while preexisting, was also related to the injury as a result of
stress due to chronic usage of assistive walking devices that were needed because of the altered
gait as a result of the hip injury.
By decision dated August 23, 2012, OWCP denied appellant’s request for reconsideration
on the grounds that no substantive legal questions were raised and there was no new and relevant
evidence submitted to support that the avascular necrosis and resultant hip replacement were
causally related to the December 1, 2009 injury. It further found that her allegations about other
diagnosed conditions (i.e., back, shoulder and carpal tunnel conditions) which developed as a
consequence of the avascular necrosis and hip replacement were not relevant as causal
relationship had not been established for the avascular necrosis and hip replacement.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,3
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.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
Appellant disagreed with OWCP’s January 5, 2012 decision which denied her recurrence
of disability claim of June 15, 2010 and requested reconsideration. The issue presented on

3

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

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appeal is whether her May 25, 2012 request for reconsideration met any of the conditions of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for further review of the merits.
In her May 25, 2012 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not identify a specific point of
law or show that it was erroneously applied or interpreted. While appellant advanced arguments
regarding the expansion of her claim, the conditions claimed are a consequence of the avascular
necrosis and hip replacement and thus would be relevant only if the avascular necrosis and hip
replacement are causally related to the injury of December 1, 2009. Furthermore, she had
previously asserted that the avascular necrosis, hip replacement and other nonaccepted
conditions were due to her December 1, 2009 work injury.6
In the May 17, 2012 report, Dr. Cunningham, appellant’s attending physician, discussed
how the December 1, 2009 work injury caused the avascular necrosis which resulted in the hip
replacement and subsequent development of the consequential conditions. He stated that the
December 1, 2009 x-ray, which he evaluated at a later date, revealed mild irregularity of the
femoral head, which was consistent with the earliest stages of avascular necrosis.
Dr. Cunningham explained that appellant’s conservative treatment following the work injury
failed and, when he first saw her on June 15, 2010, the x-ray revealed stage four avascular
necrosis with severe degenerative changes. He opined that the avascular necrosis of the right hip
was an exacerbation of the previous underlying hip pathology, which had been asymptomatic
and undiagnosed prior to her work-related right hip sprain. This report provided additional
explanation on the issue of causal relationship of appellant’s avascular necrosis and subsequent
hip replacement. The report also discusses the how her other claimed conditions are a
consequence of the avascular necrosis and hip replacement.
The Board has conducted a limited review of Dr. Cunningham’s May 17, 2012 report and
can find no similar explanation of the mechanism of injury. The rationale he provided in his
May 17, 2012 report regarding the avascular necrosis of the right hip and hip replacement is new
and relevant.7 It directly addresses OWCP’s previous finding that the medical evidence did not
explain how the December 1, 2009 work injury caused appellant’s avascular necrosis and
subsequent hip replacement which resulted in additional condition.
To obtain a reopening of her case for a merit review, appellant need not submit evidence
that cures all the deficiencies in her claim and establishes her entitlement to compensation.8 She
need only submit evidence that is relevant and pertinent new evidence not previously considered
by OWCP.9 The Board finds that appellant has submitted such evidence and is therefore entitled
6

Howard A. Williams, 45 ECAB 853 (1994). 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
7

See Fed. R. Evid. 401 ( relevant evidence means evidence having any tendency to make the existence of any fact
that is of consequent to the determination of the action more probable or less probable than it would be without the
evidence).
8

See Helen E. Tschantz, 39 ECAB 1382 (1988).

9

See 20 C.F.R. § 10.606(b)(3)(iii). See also Mark H. Dever, 53 ECAB 710 (2002).

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to a merit review of her case. The Board set aside OWCP’s August 23, 2012 decision denying
reconsideration and will remand the case for a merit review and de novo decision on her injury
claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s May 25, 2012 reconsideration
request. Appellant is entitled to a merit review of her case.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action in
conformance with this decision.
Issued: May 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
J.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Fort Lauderdale, FL, Employer
__________________________________________

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

Docket No. 12-979
Issued: June 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 2, 2012 appellant filed a timely appeal of an October 5, 2011 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration of the merits of her claim. As more than 180 days has elapsed between the
issuance of the last merit decision of OWCP dated August 20, 2010 and the filing of this appeal
on April 2, 20121 and pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant has up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2) (2007). For final adverse decisions issued on or after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e) (2009); R.C., Docket No.
10-2371 (issued July 14, 2011).
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that, as she furnished new and relevant evidence with her
reconsideration request, OWCP should have conducted a merit review and that medical evidence
established that she continued to have residuals of right upper extremity injuries.3
FACTUAL HISTORY
On May 22, 2002 appellant, then a 42-year-old customs inspector, filed a traumatic injury
claim alleging that she injured her right hand on that date while lifting a wooden barricade. The
claim was initially accepted for bursitis right shoulder and later expanded to include right
shoulder adhesive capsulitis and right shoulder de Quervain’s tenosynovitis. Appellant was paid
wage-loss compensation for intermittent periods until she stopped work on October 31, 2005 and
did not return. On March 23, 2007 OWCP accepted that she sustained a recurrence of disability
on December 19, 2006, and she was placed on the periodic compensation rolls. On
September 26, 2007 and April 9, 2008, Dr. Francis Moll, III, a Board-certified orthopedic
surgeon, performed corrective right shoulder surgery.
In a January 12, 2009 report, Dr. Manuel Porth, an attending Board-certified orthopedist,
noted appellant’s history of right shoulder surgery and her complaint that her left shoulder had
been symptomatic recently. He advised that appellant had significant stresses due to job loss and
ongoing upper extremity complaints and needed continued psychiatric counseling. On March 2,
2009 OWCP requested that Dr. Porth provide an update regarding appellant’s accepted right
upper extremity condition. Dr. Porth did not respond and OWCP referred appellant for a secondopinion evaluation.4
In a June 13, 2009 report, Dr. Richard L. Glatzer, Board-certified in orthopedic surgery,
noted the history of injury, his review of the medical record and the statement of accepted facts,
and appellant’s complaints of pain in the right hand and shoulder and left shoulder. He provided
physical examination findings and diagnosed post arthroscopy right shoulder with continuing
subjective complaints. Dr. Glatzer stated that, other than the healed arthroscopy scars, there
were no objective orthopedic or neurological clinical findings to corroborate appellant’s
3

Appellant is requesting only medical benefits under the instant claim, adjudicated by OWCP under file number
xxxxxx987. She has a separate claim for a psychiatric condition, adjudicated by OWCP under file number
xxxxxx750. In a July 13, 2006 order, Docket No. 06-780, the Board remanded the case to OWCP for further
development of the medical evidence. In an order dated February 26, 2007, Docket No. 06-1485, the Board
dismissed an appeal at appellant’s request. Following further development, on August 27, 2009, OWCP accepted
that she sustained an employment-related adjustment disorder with depressed mood. Appellant was placed on the
periodic compensation rolls under this claim, effective August 7, 2009, the date her compensation benefits under the
instant claim were terminated. See discussion infra. The emotional condition claim is not before the Board on the
present appeal.
4

OWCP initially referred appellant to Dr. Barry Schapiro, a Board-certified orthopedic surgeon, who did not
timely provide a report. It then referred appellant to Dr. Richard L. Glatzer.

2

complaints, which indicated to him that the May 22, 2002 employment injury was no longer
active and was not causing objective findings. He found no residuals of the employment-related
right shoulder conditions, either from his review of the medical records or upon his evaluation.
Dr. Glatzer indicated that appellant had a functional overlay which caused possible
iatrogenically-induced-pain-related behavior. He explained that, if she had the pain she claimed
in the right upper extremity, there would have been some evidence of atrophy from disuse but
that none had been measured by him or noted by any other doctor. Dr. Glatzer concluded that
appellant was capable of performing her job duties with minor restrictions based on her
subjective complaints, indicating that there was no objective basis for imposing restrictions. In
an attached work capacity evaluation, he advised that appellant could perform her usual job.
On June 24, 2009 OWCP proposed to terminate appellant’s medical benefits and wageloss compensation. Appellant disagreed with the proposed termination. By decision dated
August 5, 2009, OWCP found that the weight of the medical evidence rested with the opinion of
Dr. Glatzer and terminated appellant’s medical benefits and wage-loss compensation, effective
August 6, 2009.
On June 24, 2010 appellant requested reconsideration. She submitted reports dated
January 23 and May 17, 2010 in which Dr. Porth noted that appellant was symptomatic with
regard to both shoulders, with the right worse than the left. Dr. Porth recommended
electrodiagnostic studies of the upper extremities. In a June 17, 2010 report, Dr. Douglas M.
Lanes, a Board-certified psychiatrist, advised that, as a consequence of appellant’s injured
shoulder, she had developed an adjustment reaction with depression which was totally disabling.5
In a merit decision dated August 20, 2010, OWCP reviewed the medical evidence
submitted and denied modification of the August 5, 2009 decision. On August 12, 2011
appellant again requested reconsideration, stating that she was requesting medical benefits for
this claim and that Dr. Porth’s requests for testing should be authorized. She noted that she had
separate OWCP claims for a left shoulder condition and a reinjury to her right shoulder and wrist
in August 2004 and still had pain and discomfort in the right shoulder. Appellant submitted an
August 5, 2011 report in which Dr. Porth noted a chief complaint of left shoulder and right wrist
discomfort with continued complaints of right shoulder problems. Dr. Porth recommended a
right upper extremity electrodiagnostic study and magnetic resonance imaging of the left
shoulder.
In a nonmerit decision dated October 5, 2011, OWCP denied appellant’s reconsideration
request. It found that she had not shown that it erroneously applied or interpreted a point of law
and that the evidence and argument submitted were cumulative or immaterial.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.6 Section 10.608(a) of Title 20 of the Code of Federal Regulations
5

Supra note 3.

6

5 U.S.C. § 8128(a).

3

(C.F.R.) provides that a timely request for reconsideration may be granted if OWCP determines
that the employee has presented evidence and/or argument that meets at least one of the
standards described in section 10.606(b)(2).7 This section provides that the application for
reconsideration must be submitted in writing and set forth arguments and contain evidence that
either: (i) shows that OWCP erroneously applied or interpreted a specific point of law; or (ii)
advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes
relevant and pertinent new evidence not previously considered by OWCP.8 Section 10.608(b)
provides that when a request for reconsideration is timely but fails to meet at least one of these
three requirements, OWCP will deny the application for reconsideration without reopening the
case for a review on the merits.9
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated October 5, 2011 denying appellant’s application for review. Because there is no OWCP
merit decision within the Board’s jurisdiction, the Board lacks jurisdiction to review the merits
of appellant’s claim.10
With her August 12, 2011 reconsideration request, appellant requested medical benefits
for this claim and that Dr. Porth’s requests for testing should be authorized. She therefore did
not allege or demonstrate that OWCP erroneously applied or interpreted a specific point of law,
or advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant was not entitled to a review of the merits of the claim based on the first and second
above-noted requirements under section 10.606(b)(2).11
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted an August 5, 2011 report from Dr. Porth. In the last merit OWCP decision dated
August 20, 2010, OWCP noted that it had reviewed all medical evidence submitted with
appellant’s June 24, 2010 reconsideration request. This evidence included a May 17, 2010 report
in which Dr. Porth requested authorization for upper extremity electrodiagnostic studies. In his
August 5, 2011 report, submitted with appellant’s August 12, 2011 reconsideration request, he
discussed appellant’s left upper extremity condition, which is not relevant in this case which is in
regard to appellant’s right shoulder. Regarding the right shoulder, Dr. Porth merely indicated
that appellant continued to complain of right upper extremity pain and again recommended an
electrodiagnostic study, as previously recommended by him on May 17, 2010. He did not
discuss physical examination findings or render an opinion regarding the merit issue in this case.
Thus, appellant did not submit relevant and pertinent new evidence not previously considered by
OWCP.
7

20 C.F.R. § 10.608(a) (1999).

8

Id. at § 10.608(b)(1), (2) (1999).

9

Id. at § 10.608(b).

10

Supra note 1.

11

20 C.F.R. § 10.606(b)(2).

4

As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by OWCP, OWCP properly denied her reconsideration
request.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0500
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 14, 2022 appellant filed an appeal from a July 14, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0500.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 14, 2021 decision was January 10, 2022. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
July 14, 2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0500 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained his failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the ap peal docketed
as No. 22-0500, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0500 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Schenectady, NY,
Employer
__________________________________________

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

Docket No. 21-0139
Issued: October 26, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 3, 2020 appellant filed a timely appeal from a September 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 24, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish recurrences of
disability commencing April 8, 2002 and September 20, 2006 causally related to his accepted
January 3, 1996 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decisions and order are incorporated herein by reference. The
relevant facts are as follows.
On January 16, 1996 appellant, then a 46-year-old aircraft mechanic foreman, filed a notice
of traumatic injury (Form CA-1) alleging that on January 3, 1996 he sustained a back injury when
moving lockers while in the performance of duty.4 He stopped work on January 8, 1996. OWCP
initially accepted the claim for lumbosacral strain and subsequently expanded acceptance of the
claim to include displacement of a lumbar intervertebral disc without myelopathy and other
acquired deformities of the ankle and foot, bilateral. On August 14, 1996 appellant underwent a
hemilaminotomy and microdiscectomy at L4-5. He worked intermittently before returning to fullduty work on October 5, 1998. Appellant was suspended without pay effective April 21, 2002 and
terminated for cause effective September 12, 2002. After his suspension, he worked in private
sector employment. Appellant was incarcerated from November 17, 2003 until September 5, 2006
for reasons unrelated to his compensation claim. He did not return to work.
On April 13, 2007 appellant filed a notice of recurrence (Form CA-2a) claim. He alleged
that the recurrence occurred on September 20, 2006 when he was playing with his grandchildren
and he felt a sharp low back pain and a loss of strength in his low back and left leg, which caused
him to fall. Appellant explained that he had numbness and pain in his toes, low back pain radiating
down his left leg, and sharp left buttock pain. He advised that he had never fully recovered from
his work injury, which had worsened over time, disabled him, and limited his activity.
On February 18, 2010 appellant filed another Form CA-2a. He alleged that his recurrence
occurred on April 8, 2002. Appellant alleged that two or three times a month he experienced sharp
pain in his left buttock which radiated down his left leg to his left heel and caused him to fall. He
indicated that the pain worsened each time and the falls were occurring more often.
Following further development, by decision dated August 11, 2016, the Board reversed
OWCP’s February 9, 2016 decision, which affirmed the rescission of acceptance of appellant’s
recurrence of disability claim beginning September 20, 2006 causally related to his accepted
January 3, 1996 employment conditions. 5 The Board found that OWCP had not met its burden of
3

Order Remanding Case, Docket No. 19-0346 (issued November 26, 2019); Docket No. 17-1390 (issued April 23,
2018); Docket No. 16-0715 (issued August 11, 2016).
4

Appellant sustained prior injuries to his back. OWCP File No. xxxxxx757 pertains to a January 12, 1983 back
injury and OWCP File No. xxxxxx431 pertains to a July 6, 1994 back injury.
5

Docket No. 16-0715, supra note 3.

2

proof to rescind acceptance of the recurrence claim as it should have analyzed the medical evidence
to determine whether he had sustained a spontaneous change in a medical condition which resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.
By decision dated April 23, 2018, the Board affirmed OWCP decisions dated May 1, 2017
and two decisions dated April 28, 2017.6 The Board found that OWCP had met its burden of proof
to rescind its acceptance of the September 20, 2006 recurrence claim. The Board also found that
appellant had not met his burden of proof to establish a recurrence of total disability commencing
either April 8, 2002 or September 20, 2006 causally related to his January 3, 1996 employment
injury.
During the pendency of appellant’s prior appeal to the Board, OWCP, in a letter dated
July 13, 2017, requested that Dr. Kevin Scott, a Board-certified orthopedic surgeon, review an
updated statement of accepted facts (SOAF) dated July 13, 2017 and provide a supplemental report
regarding appellant’s lumbar condition. 7 It inquired as to the cause of appellant’s disability and
whether or not his accepted conditions or the aggravations had resolved. In a July 18, 2017
addendum to his January 18, 2017 report, Dr. Scott indicated that his opinion on causality
remained unchanged. He opined that appellant’s current disability was related to appellant’s
January 3, 1996 employment injury as it was his most significant injury and caused him to have a
discectomy at that level. Dr. Scott explained that appellant did well for a while but, according to
the most recent magnetic resonance imaging (MRI) scan, appellant has a paracentral disc extrusion
at the previous level of L3-4 and a left sided lateral recess impingement of the L4 nerve root, where
the extruded disc was back in 1996. He noted that, while he would like to see documentation that
appellant actually performed the exercises noted on the SOAF during his incarceration, he did not
think it would change his opinion. Dr. Scott reiterated that, for now, his opinion remained
unchanged.
On August 17, 2018 appellant, through his then-representative, requested reconsideration
and submitted additional evidence. OWCP received treatment notes from Dr. Paul Salerno, a
Board-certified physiatrist, dated May 1, 2017 through October 18, 2018. Dr. Salerno provided
assessments of lumbosacral region intervertebral disc degeneration, postlaminectomy syndrome,
muscle spasm back, and lumbar region spinal enthesopathy. He opined that appellant’s current
disability was related to appellant’s original work injury and subsequent surgery. Duplicative
copies of health records dated January 21, 2004 through July 31, 2006 from the State of New York
Department of Correctional Services, signed by registered nurses and a nurse practitioner, were
also received.

6

Docket No. 17-1390, supra note 3.

7

The SOAF noted that on or about March or April 2006, while incarcerated, appellant’s right hand slipped while
going onto the bunk and he reached for a bar and he felt a tear. It also noted that a ppellant’s physical activities while
incarcerated included: 400 sit ups/day, running 4 miles/day, and pushups.

3

By decision dated October 30, 2018, OWCP denied modification of its April 28 and May 1,
2017 decisions. It noted that medical evidence was submitted, but did not reference the July 18,
2017 addendum from Dr. Scott.
On December 3, 2018 appellant appealed to the Board. In an order dated November 26,
2019, the Board set aside OWCP’s October 30, 2018 decision and remanded the case for further
development. 8 The Board found that Dr. Scott’s July 18, 2017 addendum report was received, but
not reviewed by OWCP prior to the issuance of its October 30, 2018 decision. It remanded the
case for a proper review of all the evidence of record followed by the issuance of a de novo
decision.
OWCP received additional reports from Dr. Salerno dated November 15, 2018 through
January 9, 2020, in which he continued to opine that appellant’s current disability was related to
appellant’s original work injury and subsequent surgery. It also received letters dated August 20
and November 25, 2018 from appellant’s then-representative which presented arguments
pertaining to the violation of appellant’s privacy rights regarding the use of his medical records
from the State of New York Department of Corrections.
By decision dated February 25, 2020, OWCP denied modification of its prior decision. It
found that the medical evidence did not contain a rationalized medical opinion based on a complete
and accurate history with supporting objective findings which explained how appellant’s disability
was caused by a change/worsening of his accepted conditions during th e periods claimed.
On July 14, 2020 appellant requested reconsideration. He submitted additional reports
from Dr. Salerno dated February 20, March 19 and May 6, 2020. In a July 15, 2020 12 page letter,
appellant’s then representative, went over the procedural history of the claim and set forth several
arguments where he alleged OWCP erred in each of its decisions. With regard to appellant’s
recurrence claims, the representative alleged, in relevant part, that OWCP should have requested
a supplemental opinion from Dr. Scott as it knew that his second opinion reports were of limited
probative value as they did not address appellant’s claims of recurrence on the dates in question.
By decision dated September 24, 2020, OWCP denied modification of its February 25,
2020 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 9 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
8

Order Remanding Case, Docket No. 19-0346, supra note 3.

9

20 C.F.R. § 10.5(x); see A.E., Docket No. 20-0259 (issued April 28, 2021); J.D., Docket No. 18-1533 (issued
February 27, 2019).

4

employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.10
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.11
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 12 Where no such rationale is present,
the medical evidence is of diminished probative value.13
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury. 14 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow an employee to self -certify their disability and entitlement to
compensation.15
ANALYSIS
The Board finds that this case is not in posture for decision.
Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted
prior to the issuance of OWCP’s May 1, 2017 and the two April 28, 2017 decisions, which was
considered by the Board in its April 23, 2018 decision. Findings made in prior Board decisions
are res judicata absent further merit review by OWCP under section 8128 of FECA. 16
10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
12

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

13

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

14

See B.D., Docket No. 18-0426 (issued July 17, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005).

15

Id., Fereideoon Kharabi, 52 ECAB 291 (2001).

16

C.M., Docket No. 19-1211 (issued August 5, 2020).

5

OWCP has accepted that appellant, as a result of his January 3, 1996 employment injury,
sustained displacement of lumbar intervertebral disc without myelopathy; other acquired
deformities of ankle and foot, bilateral; and sprain of lumbosacral joint/ligament. Following the
Board’s November 26, 2019 order remanding the case for consideration of Dr. Scott’s July 18,
2017 addendum report, OWCP issued a de novo decision dated February 25, 2020 denying
appellant’s recurrence claims and a September 24, 2020 decision denying modification of its
February 25, 2020 decision. It found that the medical evidence submitted in support of appellant’s
alleged recurrence failed to provide a well-rationalized opinion supported by objective findings
that his work-related condition had materially changed or worsened without an intervening injury
or exposure to work factors and which prevented him from performing work during the claimed
period of disability.
OWCP undertook development of the claim by referring appellant for a second opinion
examination with Dr. Scott. On July 13, 2017 it requested a supplemental report from Dr. Scott
based on an updated SOAF. In its July 13, 2017 letter, OWCP inquired as to the cause of
appellant’s disability and whether or not his accepted conditions or the aggravations had resolved.
It did not inquire as to whether he sustained a recurrence of disability commencing April 8, 2002
and September 20, 2006 causally related to his accepted January 3, 1996 employment injury.
OWCP then found Dr. Scott’s July 18, 2017 addendum report of limited probative value as it failed
to address the relevant issue of whether or not appellant sustained a recurrence of disability on the
dates in question.
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 of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.17 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in a manner that will resolve the relevant issues in the case. 18
Because Dr. Scott, serving as OWCP’s second opinion examiner, has not specifically addressed
whether or not appellant sustained a recurrence of disability on the dates in question, the case must
be remanded to OWCP. 19
On remand OWCP shall request a supplemental report from Dr. Scott to obtain a
rationalized medical opinion on whether or not appellant sustained a recurrence of disability on
April 8, 2002 and September 20, 2006 causally related to his accepted January 3, 1996
employment injury. If Dr. Scott is unavailable or unwilling to provide a supplemental opinion,
OWCP shall refer appellant, together with a SOAF and a list of specific questions, to another
second opinion physician in the appropriate field of medicine to resolve the issue. Following this
and other such further development as deemed necessary, OWCP shall issue a de novo decision.

17

C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

18

M.T., Docket No. 20-0321 (issued April 26, 2021); T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket
No. 17-1906 (issued January 10, 2018).
19

M.T., id.

6

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 26, 2021
Washington, DC

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

Janice B. Askin, 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
__________________________________________
G.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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Appearances:
Tom McMenamy, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1358
Issued: November 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 20, 2013 appellant, through his attorney, filed a timely appeal from an April 11,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury on
August 14, 2011 in the performance of duty.
FACTUAL HISTORY
On September 24, 2012 appellant, then a 59-year-old motor vehicle operator, filed a
traumatic injury claim alleging that on August 14, 2011 he experienced pain in his back and
buttocks when in the performance of duty he picked up postal containers (post cons) that had
1

5 U.S.C. § 8101 et seq.

fallen onto the street. He explained that he was cleaning up mail that had fallen onto the street
when he pulled a muscle in his right hip. The next day appellant could not stand up and could
hardly walk. He stopped work and returned on August 22, 2011.
In a handwritten August 16, 2011 note, Dr. Edmond Sarkissian, a Board-certified
internist, stated that he examined appellant for a lower back and buttock strain. He advised
appellant to rest and apply a warm compress. Dr. Sarkissian noted that appellant could return to
work on August 22, 2011.
In a September 25, 2012 attending physician’s report, Dr. Manuel A. Ceja, an internist,
stated that he first examined appellant on September 25, 2012 for an injury to his lower back
after he picked up mail that fell out of a postal vehicle. He observed tenderness in the lower
back and diagnosed lumbar radiculopathy. Dr. Ceja checked “yes” that appellant’s condition
was caused or aggravated by the employment activity. He stated that appellant was totally
disabled from September 25 to October 1, 2012.
In a September 25, 2012 duty status report, Dr. Ceja noted a date of injury of
August 14, 2011. He reported clinical findings of tenderness of the lower back and diagnosed
lumbar radiculopathy. Dr. Ceja authorized appellant to return to work with restrictions.
By letters dated September 27 and October 2, 2012, OWCP advised appellant that the
evidence submitted was insufficient to establish his claim. It requested additional factual
evidence to establish that the alleged August 14, 2011 incident occurred and additional medical
evidence to establish that he sustained a back condition as a result of the alleged incident.
In October 1 and 5, 2012 reports, Dr. Ceja noted a date of injury of September 25, 2012.
He related that appellant was a postal service employee who felt a sharp pain in his lower back
when he picked up mail that fell out of a postal container. Dr. Ceja reported mild improvement
in his lower back pain which now radiated down his right hip. Upon examination, he observed
mild tenderness to palpation and decreased range of motion to rotation and lateral bending.
Straight leg raise testing was negative. Dr. Ceja diagnosed lumbar sprain and strain.
In October 5 and 12, 2012 attending physician’s reports, Dr. Ceja noted a date of injury
of September 25, 2012 when appellant picked up a postal container that fell out of a truck.
Examination revealed decreased range of motion and tenderness. Dr. Ceja diagnosed lumbar
radiculopathy and reported that appellant was totally disabled until October 12, 2012. He
checked “yes” that appellant’s condition was caused or aggravated by an employment activity.
By letter dated October 9, 2012, OWCP stated that it created two separate cases for the
same injury. It advised appellant that it deleted case number xxxxxx025 and all the documents
in that case were moved to case number xxxxxx653.
In an October 9, 2012 statement, appellant explained that he did not file a CA-1 form
after his August 14, 2011 injury on the job because he was not advised to do so. He stated that
he did not feel any pain immediately after the incident but the next day he reported it to his
supervisor when he realized that he was unable to perform any duties at the start of his shift.
Appellant noted that he had not sustained any other injury between the date of injury and the date

2

it was first reported to his supervisor and did not have any similar disability or symptoms before
the alleged August 14, 2011 injury.
In decisions dated November 7 and 16, 2012, OWCP denied appellant’s traumatic injury
claim finding insufficient evidence to establish that the August 14, 2011 employment incident
occurred as alleged and that he sustained any diagnosed condition as a result of the alleged
incident.
On December 14, 2012 appellant submitted a request for an oral hearing, which was held
on March 4, 2013. He stated that on August 14, 2011 he sustained a minor injury at work that he
never filed a claim for, but on September 24, 2012, he felt a sharp pain in his lower back and
buttock when he pushed the postal containers into the truck. Appellant noted that he did not get
any medical treatment after he returned to work in August 2011 until September 2012. He
explained that when he got hurt in September 2012 he initially thought it was from the previous
August 2011 injury.
In a January 2, 2013 statement, appellant stated that there was a discrepancy in the date of
injury he reported to OWCP. He explained that on September 24, 2012 at approximately 6:45
a.m. he was carrying a full truck load of bulk mail containers and postal containers. Appellant
was pushing the mail containers up onto the dock plate to load his truck when he felt a sharp pain
in his right buttocks area. He stated that he did not pay much attention but the pain continued to
intensify until he realized there was something clearly wrong. Appellant completed the
truckload and notified his supervisor immediately. His supervisor told him to go home and he
returned the next day to fill out paperwork. Appellant noted that he incorrectly indicated a date
of injury of August 14, 2011 on his CA-1 form. He stated that he did pull a muscle in his right
hip on August 14, 2011 but did not file an OWCP claim for this condition. Appellant concluded
that the evidence he submitted established that he sustained an on-the-job injury on
September 24, 2012.
In a November 7, 2012 report, Dr. Ceja related that on September 25, 2012 appellant felt
a sharp pain in his lower back while working as a motor vehicle operator. He stated that after
work he began to feel his right hip pain return and travel down to his right foot. Upon
examination, Dr. Ceja observed full range of motion and mild tenderness of the right hip. He
diagnosed lumbar sprain and strain and pain in the joint of the pelvic region and thigh.
By decision dated April 11, 2013, an OWCP hearing representative affirmed the
November 16, 2012 denial decision finding insufficient evidence to establish that the August 14,
2011 occurred as alleged and that appellant sustained any injury as a result of the alleged work
incident.2

2

The hearing representative also determined that appellant attempted to claim two separate traumatic incidents,
one in August 2011 and one in September 2012, under the same claim, which was procedurally incorrect. He noted
that his decision did not relate to a September 2012 incident, which had not been formally adjudicated yet.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA5 and that he or
she filed his or her claim within the applicable time limitation.6 The employee must also
establish that he or she sustained an injury in the performance of duty and that any specific
condition or disability for work for which he or she claims compensation is causally related to
that employment injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.8
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident which is alleged to have occurred.9 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.10
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. An injury does not
have to be confirmed by eyewitnesses in order to establish the fact that an employee sustained an
injury in the performance of duty, as alleged, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.11 An
employee has not met his or her burden of proof establishing the occurrence of an injury when
there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statement in determining whether a prima facie case has been established.12 An employee’s
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercardo), 4 ECAB 357, 359 (1951).

6

R.C., 59 ECAB 42 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954).

7

G.T., 59 ECAB 447 (2008); M.M., Docket No. 08-1510 (issued November 25, 2010).

8

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

9

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

10

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

11

Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
12

Betty J. Smith, 54 ECAB 174 (2002).

4

statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.13
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.14 To establish a
causal relationship between the condition, as well as any attendant disability, claimed and the
employment event or incident, the employee must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting such a causal relationship.15
ANALYSIS
On September 24, 2012 appellant filed a traumatic injury claim alleging that on
August 14, 2011 he sustained an injury to his back and buttocks when he picked up postal
containers on the street. OWCP denied his claim finding insufficient evidence to establish that
the August 14, 2011 incident occurred as alleged and that he sustained any diagnosed condition
as a result of the alleged incident. The Board finds that appellant failed to establish that he
sustained an injury in the performance of duty on August 14, 2011.
The Board notes that appellant has the burden of proof to establish the essential elements
of his claim, including that the employment incident occurred at the time, place and in the
manner alleged and that the incident resulted in an injury. In this case, appellant alleged that on
August 14, 2011 he picked up postal containers and experienced pain in his lower back and
buttocks. The Board finds that he has not provided the sufficient detail needed to establish that
the August 14, 2011 incident occurred as alleged. Appellant did not adequately describe the
circumstances of his injury and failed to present evidence regarding the mechanism of injury.16
He did not provide any statements from his supervisor supporting his claim even though he
alleged that he notified his supervisor of the incident when he realized he was unable to complete
his work duties due to pain and did not identify any possible witnesses to the incident. The only
reference to an August 14, 2011 incident is in a September 25, 2012 duty status report by
Dr. Ceja who noted a date of injury of August 14, 2011, but Dr. Ceja does not provide any
description of the alleged event.17 Moreover, appellant did not file a traumatic injury claim until
September 24, 2012, more than one year after the alleged incident. The Board also notes that
appellant initially referenced an August 14, 2011 incident but later alleged that the injury
occurred on September 24, 2012. As previously noted, an employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the
validity of the claim.18 Because appellant failed to provide evidence to establish that the
13

D.B., 58 ECAB 529 (2007).

14

J.Z., 58 ECAB 529 (2007).

15

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

16

Paul Foster, 56 ECAB 1943 (2004).

17

The additional medical evidence of record relates to a September 24, 2012 date of injury. If appellant is
seeking compensation for a work injury that occurred on September 24, 2012, he must file another traumatic injury
claim (Form CA-1) for the September 24, 2012 incident.
18

Supra note 12.

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August 14, 2011 incident occurred at the time, place and in the manner alleged, the Board finds
that OWCP properly denied his traumatic injury claim.
The Board further notes that in order to establish fact of injury appellant also has the
burden of proof to provide rationalized medical opinion evidence establishing that he sustained a
diagnosed condition as a result of the alleged incident. The only report that referred to an
August 14, 2011 incident is a September 25, 2012 duty status report by Dr. Ceja, who provided
clinical findings and diagnosed lumbar radiculopathy. Although Dr. Ceja noted a correct date of
injury and provided a diagnosis, he did not provide any opinion on the cause of appellant’s
lumbar condition. The Board has found that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.19 Thus, this duty status report is insufficient to establish appellant’s case.
Appellant submitted additional reports by Drs. Ceja and Sarkissian for complaints of pain
in his lower back and buttocks. In reports dated September 25 to October 12, 2012, Dr. Ceja
noted a date of injury of September 25, 2012. He conducted an examination and diagnosed
lumbar radiculopathy and lumbar sprain and strain. Dr. Ceja checked “yes” that appellant’s
condition was related to the incident described. The Board has held, however, that medical
opinions based on an incomplete or inaccurate history are of limited probative value.20 In his
reports, Dr. Ceja did not reference an August 14, 2011 incident. Accordingly, his opinion fails to
establish causal relationship.
On appeal appellant alleged that he was not trying to claim the August 2011 injury as
contended and that he explained during the hearing and in a letter that the September 24, 2012
CA-1 form that he filed was for an alleged September 24, 2012 injury. He explains that he
initially thought the September 24, 2012 injury was related to an August 14, 2011 injury but he
later found out that they were entirely different incidents. The record reveals, however, that the
CA-1 form indicates a date of injury of August 14, 2011. If appellant is now alleging a
September 24, 2012 injury, he must file a separate traumatic injury claim. In this instant case, he
failed to provide sufficient evidence to prove that the August 14, 2011 incident occurred as
alleged and that he sustained any diagnosed condition as a result of the alleged incident. Thus,
the Board finds that OWCP properly denied appellant’s claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on August 14, 2011.

19

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

20

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the April 11, 2013 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7