United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTHERN OREGON REHABILITATION
CENTER & CLINICS, White City, OR,
Employer
__________________________________________

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

Docket No. 08-2012
Issued: April 10, 2009

Case Submitted on the Record

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

JURISDICTION
On June 17, 2008 appellant, through her attorney, filed a timely appeal from June 18 and
July 24, 2007 and February 11, 2008 merit decisions of the Office of Workers’ Compensation
Programs denying her claim for disability compensation. She also appealed April 9 and June 5,
2008 nonmerit decisions denying her requests for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and over the April 9
and June 5, 2008 nonmerit decisions.
ISSUES
The issues are: (1) whether appellant has established that she was disabled from
November 18, 2005 to June 21, 2006 and August 7 through 13, 2006 due to her March 18, 2005
work injury; and (2) whether the Office properly denied her requests for reconsideration under
5 U.S.C. § 8128.

FACTUAL HISTORY
On March 18, 2005 appellant, then a 46-year-old nursing assistant, sustained an injury to
her lower back while assisting a patient. She stopped work on March 18, 2005 and returned to
limited-duty work on March 19, 2005. The Office accepted the claim for lumbar sprain/strain.
Appellant returned to her usual employment around May 3, 2005.
On July 11, 2005 appellant filed a claim for compensation (Form CA-7) requesting
compensation for total disability from June 25 to August 15, 2005. On August 16, 2005 she
accepted a light-duty position with the employing establishment, which required sitting for six
hours per day, standing and walking for two hours per day and lifting and carrying under
10 pounds for eight hours per day.
By decision dated August 25, 2005, the Office denied appellant’s claim for compensation
and/or continuation of pay from June 24 to August 15, 2005 on the grounds that the medical
evidence did not establish that she was disabled due to her accepted March 18, 2005 work injury.
It noted that the medical evidence initially supported that she was disabled because of a prior
nonemployment-related motor vehicle accident.
In a report received December 13, 2005, Dr. Thomas R. Gilliland, a chiropractor,
indicated that he had treated appellant since a motor vehicle accident the previous year. He
found that she had not completely recovered from the motor vehicle accident at the time of her
work injury. Dr. Gilliland submitted progress reports and duty status form reports in 2005
and 2006.
On January 4, 2006 Dr. Juanita Kcomt, an internist, opined that appellant could work
with no lifting and carrying, sitting six hours per day, standing two hours per day and walking
two hours per day. In a January 11, 2006 progress report, she noted appellant’s symptoms of
back pain with heavy lifting, right hip pain with excessive work.1 In a progress report dated
March 23, 2006, Dr. Kcomt noted appellant’s history of back pain and right hip pain. Appellant
was advised to return as needed.
On April 12, 2006 Dr. Joseleeto U. Chua, an internist and neurologist, discussed
appellant’s history of low back pain beginning after a July 2004 motor vehicle accident and after
lifting a patient at work in March 2005. He diagnosed facet arthropathy, lumbosacral
spondylosis without myelopathy and myofascial pain.
On June 20, 2006 Dr. Steven R. Foutz, Board-certified in family practice, related that
appellant injured her back in 2002 and 2004 motor vehicle accidents. In March 2005, appellant
injured her back lifting a patient. Dr. Foutz diagnosed chronic low back pain and opined that she
should “remain at her current work status….”
1

On December 29, 2005 the Office referred appellant to Dr. Stephen J. Thomas, Jr., a Board-certified orthopedic
surgeon, for a second opinion examination regarding her work restrictions. In a report dated January 20, 2006,
Dr. Thomas diagnosed lumbar strain and a possible herniated disc causally related to appellant’s March 18, 2005
work injury. He found that she was not capable of performing her position as a nursing assistant but was “able to
perform light[-]duty work and she is working as a desk clerk.” In a February 10, 2006 addendum, Dr. Thomas
diagnosed degenerative arthritis of the lumbar spine.

2

On March 27, 2007 appellant filed a claim for compensation (Form CA-7) for loss of
night differential, Sunday premium pay and holiday pay from June 25, 2005 to August 13, 2006.
On the form she also indicated that she was claiming compensation for periods that she was
unable to work or lost time for medical treatment.
By letter dated May 14, 2007, the Office informed appellant that it had previously
adjudicated her claim for disability from June 25 to August 15, 2005. It noted that the evidence
of record was currently insufficient to establish that she was disabled for November 18, 2005
through January 10, 2006 and January 17 through April 30, 2006. The Office requested that
appellant submit medical evidence containing objective findings addressing the periods in
question or evidence to show that she had no light duty available within her limitations. It
further listed the dates that she claimed intermittent time lost from work without supporting
medical evidence. The Office requested that appellant submit evidence showing that she sought
medical treatment for those dates.
In a report dated August 8, 2006, Dr. Foutz evaluated appellant for back pain and noted
that she had recently injured her left foot at work. He diagnosed chronic back pain and the onset
of resolving foot pain. On August 15, 2006 Dr. Foutz treated appellant for back pain and
abdominal symptoms.
By decision dated June 18, 2007, the Office denied appellant’s claim for compensation
for the period November 18, 2005 through June 21, 2006 as the medical evidence was
insufficient to support that she was disabled from employment. It noted that there was sufficient
evidence to show that she missed work for 2.5 hours on March 23 and May 16, 2006. The Office
additionally requested that she submit medical evidence supporting her claim that she was unable
to work from August 7 through 13, 2006.
In a decision dated July 24, 2007, the Office denied appellant’s claim for compensation
from August 7 through 13, 2006. It noted that in a recent telephone call, appellant specified that
her claim for compensation was for lost wages because she was unable to work in the evenings
and on weekends due to her work restrictions. The Office indicated that the evidence did not
show that she required limited duty from August 7 through 13, 2006.
In a report dated July 29, 2007, Dr. Allen J. Thomashefsky, Board-certified in family
practice, related that he performed low back and sacroiliac joint injections from June through
November 2006. He stated, “During the time she was getting injections, I had advised her to be
off work because of her severe pain. [Appellant] could not afford to be off work and instead
went on light duty….”
On November 12, 2007 appellant requested reconsideration. By decision dated
February 11, 2008, the Office denied modification of its June 18 and July 24, 2007 decisions.
On February 15, 2008 appellant requested reconsideration. She related that Dr. Kcompt
found her disabled from work for 45 days after her March 16, 2005 work injury. Appellant then
worked light duty. She stated, “I was put on a day schedu[le] with no weekend or pm hours. I
am asking only for the loss of what I was making while being put on light duty.”

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By decision dated April 9, 2008, the Office denied appellant’s request for reconsideration
on the grounds that the evidence was insufficient to warrant further review of the merits under
section 8128.
On April 26, 2008 appellant again requested reconsideration. In a report dated July 27,
2007, Dr. Thomas J. Purtzer, a Board-certified neurosurgeon, opined that she was totally
disabled from employment. In a decision dated June 5, 2008, the Office denied appellant’s
request for reopen her case for further merit review.
LEGAL PRECEDENT -- ISSUE 1
The term disability as used in the Federal Employee’s Compensation Act2 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.3 Whether a particular injury caused an employee disability for employment
is a medical issue, which must be resolved by competent medical evidence.4 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.5 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for lumbar sprain/strain.7 Appellant accepted a
light-duty assignment with the employing establishment on August 16, 2005. On March 27,
2007 she filed a claim for compensation and for loss of night differential, Sunday premium pay
and holiday pay from June 25, 2005 to August 13, 2006. The Office had previously adjudicated
her claim for compensation from June 25, to August 15, 2005. It also found that appellant had
not established that she was either disabled from work or lost time due to medical appointments
from November 18, 2005 through August 13, 2006, except for 2.5 hours on March 23 and
May 16, 2006. The Office did not consider whether she sustained a loss of wage-earning
capacity due to loss of night differential, Sunday premium pay or holiday pay.

2

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

3

Paul E. Thams, 56 ECAB 503 (2005).

4

Id.

5

Id.

6

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

On July 11, 2005 appellant filed a claim for compensation from June 25 to August 15, 2005. By decision dated
August 25, 2005, the Office determined that the medical evidence was insufficient to show that she was disabled
from by her accepted employment injury for this period. Appellant did not exercise appeal rights from this decision.

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Regarding the issue of whether appellant established that she was unable to perform her
light-duty employment during the period claimed, the record contains numerous progress and
form reports from Dr. Gilliland, a chiropractor. Section 8101(2) of the Act provides that the
“term ‘physician’ includes chiropractors only to the extent that their reimbursable services are
limited “to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist….”8 A chiropractor cannot be considered a physician under the
Act unless it is established that there is a subluxation as demonstrated by x-ray evidence.9 As
Dr. Guilliland did not diagnose a subluxation as demonstrated by x-ray, he is not considered a
“physician” under the Act and his report is of no probative value.10
On January 4, 2006 Dr. Kcomt opined that appellant could work with no lifting and
carrying, sitting six hours per day, standing two hours per day and walking two hours per day.
On January 11, 2006 she noted that appellant experienced back pain and right hip pain with
excessive work or heavy lifting. On March 23, 2006 Dr. Kcomt noted appellant’s history of
back pain and right hip pain. As she did not find appellant disabled from her limited-duty
employment, her opinion is of little probative value.
On April 12, 2006 Dr. Chua reviewed appellant’s history of injury and diagnosed facet
arthropathy, lumbosacral spondylosis without myelopathy and myofascial pain. On June 20,
2006 Dr. Foutz noted that appellant injured her back in March 2005 lifting a patient. He
diagnosed chronic low back pain and found that she should continue with her current work
restrictions. On August 8, 2006 Dr. Foutz diagnosed chronic back pain and the onset of
resolving foot pain and on August 15, 2006, he treated appellant for back pain and abdominal
symptoms. Neither Dr. Chua nor Dr. Foutz found her unable to perform the duties of her
employment and thus their reports are insufficient to meet her burden to show that she was
disabled from work. The Board will not require the Office to pay compensation for disability in
the absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.11
The Board finds, however, that the Office did not consider whether appellant sustained a
loss of wage-earning capacity due to her work injury.12 Appellant claimed compensation for lost
night differential, Sunday premium pay and holiday pay. The employing establishment
confirmed that these elements were included in her pay prior to her injury. The Act defines
disability as the incapacity because of an employment injury to earn the wages that the employee
8

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

9

The Office’s regulations, at 20 C.F.R. § 10.5(bb), defines subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae, which must be demonstrated on x-ray. See
Mary A. Ceglia, 55 ECAB 626 (2004).
10

Isabelle Mitchell, 55 ECAB 623 (2004).

11

Fereidoon Kharabi, supra note 6.

12

Regarding appellant’s claim for partial days missed due to medical appointments, the Board notes that there is
no evidence of time lost for medical treatment for days other than found by the Office.

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was receiving at the time of injury.13 When the medical evidence shows that a claimant is unable
to continue in her employment held at the time of injury due to residuals of her work injury, she
is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.14 The Office noted in its July 24, 2007 decision that for the period August 7 through
13, 2006 the medical evidence did not show that she required light duty. However, it did not
discuss the medical evidence relied upon in making this determination or adjudicate this aspect
of her claim for any other period. The case, therefore, will be remanded for the Office to
determine whether appellant sustained a loss of wage-earning capacity due to her employment
injury.15
CONCLUSION
The Board finds that the case is not in posture for decision on the issue of whether
appellant is entitled to compensation from the Office for the periods November 18, 2005 to
June 21, 2006 and August 7 through 13, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 5, April 9 and February 11, 2008 and July 24 and June 18,
2007 are affirmed, in part, and set aside in part. The case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: April 10, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
13

Paul E. Thams, supra note 2.

14

Id.

15

In view of the Board’s disposition of the merits, the issue of whether the Office properly denied appellant’s
request for reconsideration in its April 9 and June 5, 2008 decisions under section 8128 is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

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

Docket No. 11-528
Issued: December 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 28, 2010 appellant, through his attorney, filed a timely appeal from an
August 20, 2010 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 sustained an injury in the performance of duty on
June 29, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 8, 2010 appellant, then a 36-year-old security screener, filed a traumatic injury
claim (Form CA-1) alleging an injury in the performance of duty on June 29, 2010.2 She stated
that between 4:00 and 4:05 p.m. she was crossing a pedestrian walkway near Island 4 in a
parking lot near the Denver Airport, attempting to get to Island 5, when she was struck by the
side mirror of a “Wally Park” shuttle. Appellant described the injury as a closed head injury and
nasal contusion. The reverse of the claim form, completed by the employing establishment,
asserted that appellant was off duty, outside the airport in the ground transportation pick-up
area.3 According to the employing establishment the area was not owned or operated by the
employing establishment.
By letters dated July 15, 2010, OWCP requested additional information from appellant
and the employing establishment. In an August 5, 2010 response, an employing establishment
human resources specialist stated that the incident did not occur in a parking lot. According to
the specialist, there are public transportation pick-up islands outside the airport terminal, used by
travelers and employees and Island 4 was approximately 90 to 100 feet beyond the terminal
doors. The human resources specialist stated that appellant was crossing to another island
en route to a Regional Transportation District (RTD) bus, when she was struck by the shuttle
bus.
By decision dated August 20, 2010, OWCP denied the claim for compensation. It found
that appellant was not in the performance of duty at the time of the June 29, 2010 incident.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”4 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”5
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he may
reasonably be expected to be in connection with the employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.6

2

In her description of the injury, appellant used the date June 27, 2010, but she identified the date of injury
elsewhere on the form as June 29, 2010, the reverse of the form provides a June 29, 2010 date of injury, and the
record contains medical treatment on June 29, 2010 indicating that the alleged incident occurred on June 29, 2010.
3

The record also contains a handwritten CA-1 dated July 3, 2010, with regular work hours reported as 6:00 a.m.
to 4:00 p.m. On this claim form appellant stated that she was leaving work when she was struck by a shuttle bus.
4

5 U.S.C. § 8102(a).

5

Valerie C. Boward, 50 ECAB 126 (1998).

6

R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

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The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or during
a lunch period, are not compensable, as they do not arise out of and in the course of employment.
Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself,
which are shared by all travelers.7
ANALYSIS
In the present case, appellant alleged that she was struck by the side mirror of a shuttle
bus on June 29, 2010. Based on her statements on the claim form and the response of the
employing establishment, the incident occurred shortly after she left work for the day and was on
her way to catch a local bus to take her home. As noted, the criteria used to determine if an
incident arises in the course of employment include the time, place and the activity involved in
the incident.
With respect to time, the incident occurred after appellant’s work shift had ended. It did
not therefore occur at a time when the employee may reasonably be said to be engaged in the
employing establishment’s business. With respect to place, the incident occurred outside the
airport terminal in an area where public transportation was available. The employing
establishment stated that it did not own or operate the area. While ownership or control of a
location does not necessarily establish the boundaries of the employing establishment’s
premises,8 it is an important consideration. In J.B., a security screener was struck by a shuttle
bus in a crosswalk outside the airport terminal.9 The Board noted that the employing
establishment did not own, control or maintain the area, and also noted that this was an area open
to the general public. Even if employees customarily used the area, “this would not alter the
public nature of the walkway or render it part of the employing establishment’s premises.”10
In the present case, the evidence establishes that the crosswalk where the June 29, 2010
incident occurred was open to the general public and was not owned or maintained by the
employing establishment. The risk of being struck by a shuttle bus is a risk faced by all travelers
to the airport, and not a special hazard faced by employees.11 In F.S. a security screener fell in a
crosswalk outside the airport terminal on her way to work.12 The Board found that even if this
had been her normal route to and from work, the risk of an injury on the crosswalk was one

7

See John M. Byrd, 53 ECAB 684 (2002); see also Gabe Brooks, 51 ECAB 184 (1999); Thomas P. White, 37
ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984).
8

See, e.g., Diane Bensmiller, 48 ECAB 675 (1997).

9

Docket No. 11-106 (issued August 17, 2011).

10

Id.

11

The Board has recognized that the employing establishment premises may be extended to include a specific
route used primarily by employees that presents a special hazard to these employees. See Michael K. Gallagher, 48
ECAB 610 (1997). Factors such as whether the employing establishment contracted for the exclusive use of the
area, and whether the area is maintained to see who may access the premises, are considered. See R.M., Docket No.
07-1066 (issued February 6, 2009).
12

Docket No. 09-1573 (issued April 6, 2010).

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shared by all travelers, not a special hazard to airport employees. In the present case, the Board
finds the June 29, 2010 incident did not occur on the employing establishment’s premises.
The third criterion to consider is the activity itself. In this case, appellant was not
reasonably fulfilling the duties of her employment or something incidental to the fulfillment of
her job duties.13 She had left work and was on her way to take a bus home. As noted, an
employee going from work who is injured off-premises is not in the course of employment.
Based on the evidence of record, the Board finds that the evidence fails to establish an exception
to the general rule.
The Board finds that appellant was not in the course of employment when she was struck
by the shuttle bus on June 29, 2010. Since appellant was not in the course of employment at the
time of the June 29, 2010 incident, OWCP properly denied the claim for compensation.
CONCLUSION
The Board finds that appellant’s injury on June 29, 2010 did not occur in the performance
of duty and she is not entitled to compensation under FECA.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 20, 2010 is affirmed.
Issued: December 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

13

Cf. D.M., Docket No. 10-1723 (issued August 23, 2011), where a security screener was stopped by a passenger
as she left work and was injured while assisting the passenger.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellerose, NY, Employer
__________________________________________

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

Docket No. 17-1501
Issued: January 5, 2018

Case Submitted on the Record

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

JURISDICTION
On June 26, 2017 appellant filed a timely appeal from a June 15, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability commencing March 27, 2017, causally related to his accepted employment injuries.
On appeal appellant contends that his injuries never healed and have worsened.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s June 15, 2017 decision, appellant submitted new
evidence. The Board’s jurisdiction is limited to evidence which was before OWCP at the time it issued its final
decision. Thus, the Board is precluded from considering the new evidence for the first time on appeal. See
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that on November 3, 2016 appellant, then a 47-year-old clerk, sustained
a lumbar sprain and lower back strain as a result of picking up a heavy package for a customer at
work. It paid him wage-loss compensation for temporary total disability for the period
December 19, 2016 through February 3, 2017.
Initial medical records indicate that appellant was seen in an emergency room on
November 4, 2016 and discharged with a diagnosis of back pain. On November 8, 2016
Dr. Richard Morrow, a family practitioner, diagnosed acute left-sided low back pain with sciatica
as well as back strain. On November 10, 2016 Dr. Osafradu Opam, an attending neurologist,
noted the history of the November 3, 2016 work incident, reported findings, and diagnosed
lumbosacral sprain, and possible lumbosacral radiculopathy and herniated disc. He opined that
the employment incident caused appellant’s condition.3
On February 6, 2017 appellant returned to full-time modified-duty work at the employing
establishment. He stopped work on March 27, 2017 and returned to part-time limited-duty work
on April 3, 2017. Appellant worked eight hours a day from April 3 to 5, 2017. He worked six
hours or less a day commencing on April 6, 2017.
In a March 27, 2017 disability certificate, Dr. Opam noted a date of injury as
November 3, 2016 and diagnoses of lumbosacral disc syndrome and left sciatica. He advised
that appellant was totally incapacitated through March 31, 2017. Dr. Opam indicated that he
continued to have active symptoms.
On May 2, 2017 appellant filed a recurrence of disability (Form CA-2a) beginning on
March 24, 2017 due to his accepted November 3, 2016 employment injuries. He reported that
after the original injury he returned to light-duty work as a window clerk, eight hours a day.
Appellant contended that, following his return to work, his back stiffened more and more each
day. On March 24, 2017 he felt more intense tightening in his back. On March 25, 2017
appellant’s wife had to help him get out of bed. On the next day, appellant was unable to get up
without assistance or walk without intense pain. He reported that he stopped work on
March 27, 2017.4
In support of his claim, appellant submitted a March 28, 2017 medical report from
Dr. David Marshak, Board-certified in anesthesiology and pain medicine. Dr. Marshak noted a
history of the November 3, 2016 employment injury. He reported appellant’s complaint of
worsening low back pain, intermittent tingling and shooting pain down both legs (left greater
than right), and difficulty bending. Dr. Marshak discussed examination findings and reviewed
prior diagnostic test results. He assessed low back pain and lumbar disc disorder with
3
On December 19, 2016 OWCP accepted the claim for the conditions noted, infra. In a separate decision of the
same date, it also denied the claim for the conditions of left-side sciatica, lumbosacral disc syndrome, and lumbar
radiculopathy. Appellant did not appeal OWCP’s December 19, 2016 denial decision.
4
Appellant also submitted claims for compensation (Form CA-7) claiming intermittent wage loss from April 3 to
June 9, 2017. On these forms, the employing establishment indicated that appellant worked within restrictions.

2

radiculopathy, sacroiliitis, and myofascial pain.
physical therapists.

Appellant also submitted evidence from

OWCP, in a May 3, 2017 letter, advised appellant of the deficiencies of his claim and
requested that he respond to its inquiries.
In response to OWCP’s May 3, 2017 development questionnaire, appellant again
described the symptoms he experienced on March 24, 2017. He also described his work
activities, which included sitting, standing, walking, kneeling, bending, stooping, twisting,
pulling, pushing, simple grasping, fine manipulation, and reaching above the shoulder.
Appellant reported that he had not participated in any hobbies or activities since his original
injury/illness occurred that may have affected his accepted work-related conditions.
OWCP also received a series of form reports all dated May 20, 2017 from Dr. Opam. In
a duty status report (Form CA-17), Dr. Opam provided clinical findings and an illegible
diagnosis due to injury. He advised that appellant could resume work with restrictions. In a
work capacity evaluation (Form OWCP-5), Dr. Opam reiterated his prior diagnosis of lumbar
disc syndrome. He maintained that appellant was not capable of performing his usual job
without restriction because he had active symptoms and acute exacerbations. Dr. Opam further
maintained that appellant could only work six hours a day with physical restrictions due to a
significant indication of the presence of disc protrusion, sprain, and nerve root impingement. He
advised that appellant could work full time in four months. In an attending physician’s report
(Form CA-20), Dr. Opam noted a history of the November 3, 2016 employment injury. He
reported findings and confirmed his diagnoses of lumbar disc syndrome and left sciatica.
Dr. Opam checked a box marked “Yes” indicating that the conditions noted were caused or
aggravated by the described employment activity. He advised that appellant was totally disabled
from work from November 3, 2016 through February 5, 2017. Dr. Opam noted that he resumed
light-duty work on February 6, 2017 and listed his physical restrictions.
Dr. Opam, in a May 22, 2017 narrative report, noted that he initially treated appellant on
November 10, 2016 for injuries sustained as a result of an accident at work on that date.
Appellant reported that he injured his back while picking up a box and noted the history of
medical treatment. Dr. Opam noted appellant’s current complaints, described findings on
physical and mental examination, and reviewed diagnostic test results. He again diagnosed
lumbar disc syndrome. Dr. Opam also diagnosed left L5 radiculopathy, right L5 and S1
radiculopathy, and a bulging disc at L4-5. He opined that appellant’s condition was chronic,
permanent, and disabling in nature. Dr. Opam advised that his prognosis was guarded. OWCP
also received an additional physical therapy report.
Appellant submitted completed development questionnaires on May 13, 2017, regarding
his back condition and physical limitations. On that same date, Dr. Opam reviewed the May 13,
2017 test results and completed an outcome assessment testing summary report. He indicated
that appellant’s lower back required further management. In a prescription note dated May 22,
2017, Dr. Opam ordered physical therapy to treat appellant’s lumbosacral myofascitis and left
sciatica.

3

By decision dated June 15, 2017, OWCP found that appellant had not established a
recurrence of disability commencing March 27, 2017, causally related to his accepted
November 3, 2016 work injuries. It found that the reports of Drs. Marshak and Opam failed to
explain how the accepted conditions worsened and resulted in the claimed recurrence of
disability. OWCP also found that the physicians failed to explain how appellant’s additional
lumbar conditions were causally related to the accepted work incident.
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 resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.6 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.7
In the absence of rationale, the medical evidence is of diminished probative value.8 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.9
ANALYSIS
The Board finds that appellant has failed to establish a recurrence of total disability
commencing on March 27, 2017 causally related to the accepted employment injuries.
5

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
6

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

7

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

8

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

9

Ricky S. Storms, 52 ECAB 349 (2001).

4

OWCP accepted that appellant sustained a lumbar sprain and lower back strain while
lifting a heavy package at work on November 3, 2016. As of February 6, 2017 appellant was
performing full-time, modified-duty work. He stopped work on March 27, 2017 and claimed
disability compensation due to a worsening of his accepted employment-related back conditions.
Appellant returned to part-time, limited-duty work on April 3, 2017, but worked eight hours a
day from April 3 to 5, 2017. He subsequently worked six or less hours a day commencing on
April 6, 2017. Appellant further claimed a recurrence of disability from April 17 through June 9,
2017 based on the worsening of his accepted conditions. There is no evidence of record that the
employing establishment did not provide appropriate light-duty employment.
In support of his recurrence claim, appellant submitted a series of reports from his
attending physician, Dr. Opam, diagnosing lumbosacral disc syndrome, left sciatica, left L5 and
right L5 and S1 radiculopathy, a bulging disc at L4-5, and lumbosacral myofascitis and
addressing disability. While additional conditions have been diagnosed, Dr. Opam’s reports fail
to provide medical rationale explaining how the diagnosed conditions were causally related to
the original accepted November 3, 2016 employment injury. The only accepted conditions are
lumbar sprain and lower back strain. It is the employee’s burden of proof to provide rationalized
medical evidence sufficient to establish causal relationship for conditions not accepted by OWCP
as being employment related, not OWCP’s burden to disprove such relationship.10 Further,
medical evidence offering no opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.11 The Board finds that while
Dr. Opam, in a March 27, 2017 disability certificate, reported that appellant was totally disabled
through March 31, 2017, he failed to provide any medical rationale explaining how appellant’s
disability was caused by the accepted work injuries.12 Likewise, Dr. Opam’s May 20, 2017
Form OWCP-5 report and May 22, 2017 narrative report failed to provide medical rationale
explaining the causal relationship between appellant’s disability for work and the November 3,
2016 employment injuries.13 In his May 20, 2017 Form CA-20 report, Dr. Opam noted that
appellant was totally disabled from November 3, 2016 through February 5, 2017. The Board
notes that this period of disability predates the claimed period of disability commencing on
March 27, 2017. Dr. Opam did not opine that appellant was totally or partially disabled during
the claimed period due to the accepted employment injuries.14 The Board therefore finds that his
reports are insufficient to establish appellant’s claim.
Dr. Marshak’s March 28, 2017 report noted a history of the November 3, 2016
employment injury, discussed examination findings, and reviewed prior diagnostic test results.
10
G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
12

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52
ECAB 332 (2001).
13

Id.

14

Supra note 11.

5

He assessed appellant as having low back pain and lumbar disc disorder with radiculopathy,
sacroiliitis, and myofascial pain. However, OWCP has not accepted these conditions as work
related. Dr. Marshak provided no medical rationale explaining how appellant’s conditions or
period of disability were causally related to the accepted employment injuries. Thus, the Board
finds that Dr. Marshak’s report is insufficient to establish appellant’s claim.15
The record also contains reports from appellant’s physical therapists. However, these
reports are of no probative medical value as physical therapists are not considered physicians as
defined under FECA.16
Appellant failed to submit sufficiently rationalized medical evidence establishing that his
disability commencing on March 27, 2017 resulted from the residuals of his accepted injuries.17
The Board therefore finds that he has not met his burden of proof.18
On appeal appellant contends that his injuries never healed and have worsened. For the
reasons set forth above, the Board found that the weight of the medical evidence does not
establish that appellant sustained a recurrence of disability commencing March 27, 2017,
causally related to the accepted November 3, 2016 employment injuries.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a
recurrence of disability commencing on March 27, 2017 causally related to his accepted
employment injuries.

15

Supra notes 10 and 11.

16

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
17

Cecelia M. Corley, 56 ECAB 662 (2005).

18

Tammy L. Medley, 55 ECAB 182 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eagan, MN, Employer
__________________________________________

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)
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)
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)

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

Docket No. 18-0139
Issued: May 24, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 23, 2017 appellant filed a timely appeal from a September 15, 2017 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 the claim.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted April 10, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its September 15, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from considering this additional for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 11, 2017 appellant, then a 29-year-old postal clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on April 10, 2017, he injured his left hand and shoulder while
attempting to keep mail from falling off a postal cart that had a bad wheel. On the claim form, a
witness verified that she saw appellant preventing the mail from falling off the cart which had a
broken wheel. Appellant did not stop work following the injury. In an April 24, 2017 development
letter, OWCP advised appellant of the deficiencies in his claim and requested additional factual
and medical information. Appellant was afforded 30 days to respond.
OWCP subsequently received an April 24, 2017 narrative statement from appellant.
Appellant further explained that he sustained his injury while he was supporting the postal cart to
keep it upright, to keep the mail from falling off the cart.
Appellant went to Fairview Eagan Urgent Care on April 15, 2017 and was seen by Andrea
Hutchens-Wojahn, a certified physician assistant. In an April 15, 2017 report, Ms. HutchensWojahn indicated that appellant was evaluated for an acute onset of left shoulder pain related to a
work injury the prior Monday. She noted that “it looks most likely that he has shoulder tend[i]nitis
and/or impingement syndrome. However, it is possible appellant could have a rotator cuff tear.”
Ms. Hutchens-Wojahn indicated that appellant could try light-duty work for the next two days. In
the April 15, 2017 After Visit Summary, she diagnosed left shoulder tendinitis, impingement
syndrome of left shoulder, acute pain of left shoulder and pain in humerus. Care instructions
related to impingement syndrome and referrals were also provided.
In an April 17, 2017 note, Dr. Sara E. Hartfeldt, a Board-certified family practitioner,
indicated that appellant was seen on April 17, 2017 for a workers’ compensation injury which had
occurred on April 10, 2017. She noted that appellant had improved and was able to resume fullwork duties without restrictions.
By decision dated May 26, 2017, OWCP denied appellant’s claim. It found that, while the
claimed event occurred as alleged, the medical component of fact of injury had not been met as
the medical evidence submitted did not contain a diagnosis in connection with the accepted
employment incident.
On June 19, 2017 OWCP received appellant’s request for review of the written record by
an OWCP hearing representative.
In an April 15, 2017 x-ray report of the left shoulder, Dr. Andrew Lee, a diagnostic
radiologist, advised that there was no acute fracture and minimal evaluation of the distal left
clavicle at the acromioclavicular (AC) joint. He indicated that the question remained whether this
was a mid AC joint injury versus an anatomic variant.
A copy of Ms. Hutchens-Wojahn’s April 15, 2017 note was resubmitted and countersigned
by Dr. Nasser Ani, a Board-certified orthopedic surgeon.
By decision dated September 15, 2017, an OWCP hearing representative affirmed the
denial of the claim. The hearing representative found that appellant had not met his burden of

2

proof to establish that a firm diagnosis from a physician was made in connection with the April 10,
2017 employment incident.
LEGAL PRECEDENT
A claimant 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,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury.6 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted April 10, 2017 employment incident.
OWCP accepted that the employment incident of April 10, 2017 occurred as alleged. It
denied his claim because he had not submitted sufficient medical evidence which contained a
medical diagnosis in connection with the claimed April 10, 2017 employment injury.

3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Findings of pain or discomfort alone do not satisfy the medical aspect of
the fact of injury medical determination. Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter
2.803.4a(6) (August 2012).
7

Shirley A. Temple, 48 ECAB 404, 407 (1997). Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

M.L., Docket No. 17-1026 (issued April 20, 2018).

3

OWCP received two reports dated April 15, 2017 from Ms. Hutchens-Wojahn, a certified
physician assistant. The April 15, 2017 After Visit Summary is of no probative value as it was not
countersigned by a physician.9 However, Ms. Hutchens-Wojahn’s April 15, 2017 report was
countersigned by Dr. Ani and is thus considered medical evidence. While Dr. Ani noted
appellant’s acute onset of left shoulder pain related to a work injury, he failed to describe the work
injury or offer a definite medical diagnosis. Rather, he noted that “it looks most likely that he has
shoulder tend[i]nitis and/or impingement syndrome. However, it is possible appellant could have
a rotator cuff tear.” Medical opinions that are speculative or equivocal are of diminished probative
value.10 Therefore, the April 15, 2017 report of Dr. Ani is of limited probative value and
insufficient to establish a firm medical diagnosis.
The April 15, 2017 report from Dr. Lee merely interpreted the x-ray report. He failed to
provide an opinion relating a firm diagnosed condition to the accepted employment incident.11
Accordingly, this diagnostic study is of limited probative value.12
In an April 17, 2017 note, Dr. Hartfeldt indicated that appellant was seen in follow-up for
a workers’ compensation injury of April 10, 2017. However, she did not report the history of the
April 10, 2017 employment incident or provide a diagnosis of a medical condition causally related
to the employment incident. Dr. Hartfeldt’s note is insufficient to establish the medical component
of the fact-of-injury inquiry.13
For these reasons, the Board finds that there is no medical evidence of record establishing
an injury causally related to the accepted April 10, 2017 employment incident.
On appeal appellant contends that the claimed “injury or incident happened on the job and
it was work related.” As noted, OWCP accepted that the April 10, 2017 employment incident
occurred as alleged. Appellant, however, has not met his burden of proof to establish an injury
causally related to the accepted April 10, 2017 employment incident.
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.

9

E.K., Docket No. 09-1827 (issued April 20, 2010); J.M., 58 ECAB 303 (2007); David P. Sawchuk, 57 ECAB 316,
320 n.11 (2006). A physician assistant is not considered a physician under FECA and his or her opinion is of no
probative value. 5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law.
10

Lourdes Harris, 45 ECAB 545, 547 (1994).

11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).
12

G.M., Docket No. 14-2057 (issued May 12, 2015).

13

Supra note 8.

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted April 10, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 24, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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Appearances:
B. Norman Williamson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1980
Issued: July 18, 2012

Case Submitted on the Record

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

JURISDICTION
On September 8, 2011 appellant, through his attorney, filed a timely appeal from a
June 18, 2011 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 sustained a low back condition causally related to his
July 23, 2008 employment injury.
FACTUAL HISTORY
Appellant, a 48-year-old auto technician, filed a claim for benefits on July 30, 2008,
alleging that he sustained rectal bleeding while cleaning, lifting and crating automotive
transmissions on July 23, 2008.
1

5 U.S.C. § 8101 et seq.

On August 1, 2008 the employing establishment controverted the claim. Appellant’s
supervisor, Robert T. Smith, asserted that he did not report the alleged work incident until
Wednesday, July 30, 2008, one week after it allegedly occurred. Appellant told him that he felt
something “kind of funny” on the day of the lifting but did not notice any bleeding until
sometime over the weekend. He related that he had hoped his condition would improve;
however, when it worsened on Tuesday, July 29, 2008 he decided to file a Form CA-1.
Mr. Smith noted that appellant had experienced hemorrhoid problems in the past and had
undergone surgery for this condition. He also noted that appellant had previously filed a claim in
which he alleged that he sustained a neck strain and hemorrhoid problems while lifting
transmissions. This claim was denied.
By letter dated August 20, 2008, OWCP advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. It
asked appellant to submit a comprehensive medical report from his treating physician describing
his symptoms and the medical reasons for his condition and an opinion as to whether his claimed
condition was causally related to his federal employment. OWCP requested that appellant
submit the additional evidence within 30 days.
By decision dated September 22, 2008, OWCP denied the claim, finding that he failed to
establish the time, place and manner in which the incident occurred. It also found that he failed
to submit medical evidence relating the diagnosed condition to the alleged July 23, 2008 work
incident.
On September 26, 2008 appellant requested reconsideration.
In a report dated January 5, 2009, Dr. Thomas R. Benton, Board-certified in family
practice, stated that appellant had complaints of lower back pain which he experienced after
lifting some transmissions. He related that appellant had a dull pain in his lower back which had
begun to radiate into his right leg. Dr. Benton noted results of a magnetic resonance imaging
(MRI) scan which appellant underwent on December 5, 2008. He advised that appellant had
moderate right-sided neural foraminal narrowing at L4-5; secondary to mild generalized bulge
with superimposed right foraminal disc protrusion; moderate bilateral facet/ligamentous
hypertrophy; moderate bilateral neural foraminal narrowing at L5-S1 and mild left neural
foraminal narrowing at L4-5, secondary to mild generalized disc bulges and moderate bilateral
facet/ligamentous hypertrophy. Dr. Benton noted on examination that appellant showed
radicular symptoms in his right lower extremity. He recommended a course of physical therapy
to treat appellant’s lower back symptoms.
By decision dated February 13, 2009, OWCP denied modification of the September 22,
2008 decision.
On March 3, 2009 appellant requested reconsideration.
By nonmerit decision dated March 24, 2009, OWCP denied reconsideration.
By letter dated September 11, 2009, appellant’s attorney requested reconsideration. He
stated that appellant was submitting medical evidence which indicated that the updated diagnosis
for the condition caused by the July 23, 2008 incident was anal fissure, not hemorrhoids.
2

Counsel contended that a report from Dr. Ariel H. House, a specialist in family practice, showed
that lifting the transmissions on July 23, 2008 resulted in both a back injury and rectal bleeding.
In an August 28, 2009 report, Dr. House related that he had been treating appellant for
several years. He related that appellant had back pain with associated radiculitis and that this
back pain was the direct result of appellant’s lifting transmissions from the floor onto a table for
cleaning and shipment. Dr. House indicated that appellant’s rectal pain was related both to the
radicular nature of his injury and to hemorrhoids. He noted the results of the December 2008
MRI scan and reiterated that lifting transmissions was the proximate cause of appellant’s back
injury and rectal bleeding. Dr. House advised that appellant would eventually require surgery to
alleviate his back symptoms.
In reports received by OWCP on September 15, 2009, Dr. John M. Hayes, Boardcertified in general surgery, related his findings and opinion regarding appellant’s rectal
condition.
On September 15, 2009 OWCP also received an MRI scan report, interpreted by
Dr. Muhammad Yousaf, a Board-certified radiologist, dated December 5, 2008 which stated an
impression of multilevel degenerative disc disease predominately at L5-S1 disc level, with no
acute fracture or subluxation.
On February 16, 2010 OWCP accepted a condition of aggravation of hemorrhoids based
on Dr. House’s August 29, 2009 report.
By decision dated February 16, 2010, OWCP denied appellant’s claim for a low back
condition, finding he did not submit medical evidence sufficient to establish a causal relationship
between the July 23, 2008 work incident and the claimed back condition.
In a February 16, 2010 report, received by OWCP on April 9, 2010, Dr. J. Justin Seale,
Board-certified in orthopedic surgery, stated that appellant had sustained a work injury on
July 23, 2008, after which he developed low back pain radiating into his bilateral buttocks and
right leg. He advised that this back pain was extremely severe, stabbing, constant and kept him
awake at night. Appellant was also experiencing numbness and tingling; his symptoms had not
changed over the last several months, and standing, lifting and bending aggravated these
symptoms. Dr. Seale diagnosed disc herniation, foraminal, right, at L4-5. He based this on
appellant’s history of leg pain developing after the July 23, 2008 injury, an acute injury sustained
at work. Dr. Seale also diagnosed foraminal stenosis at L4-5 and L5-S1, with right leg pain and
degenerative disc disease at L4-5, L5-S1, with low back pain. He noted that appellant’s
symptoms did not begin immediately after his injury but came on suddenly, afterwards.
Dr. Seale informed appellant that the degenerative disc disease at L4-5 and L5-S1 were present
well before his July 2008 employment injury. He advised that, since his lower back
symptomatology began after his work injury, it made sense to conclude that his current
symptomatology was directly related in his work injury. Dr. Seale asserted that appellant would
probably require fusion surgery at L4-5 and L5-S1.
By letter dated April 5, 2010, appellant’s attorney requested reconsideration.

3

By decision dated May 3, 2010, OWCP denied modification of the February 16, 2010
decision which denied a claim for a lower back injury causally related to the July 23, 2008
employment incident.
By letter dated July 9, 2010, appellant’s attorney requested reconsideration. He
submitted a June 28, 2010 report from Dr. Seale in which he essentially reiterated his previously
stated findings and conclusions.
By decision dated August 3, 2010, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require review of its prior decision.
By letter dated October 25, 2010, appellant’s attorney requested reconsideration.
In an October 8, 2010 report, received by OWCP on October 27, 2010, Dr. Seale stated
that appellant’s lower back symptoms had not changed since his previous visit. He indicated that
appellant was still having severe, constant pain in his low back radiating to his right buttock and
down his leg, with numbness in his right leg. Dr. Seale reiterated that there was no objective
evidence showing that appellant’s L5-S1 disc herniation was present prior to his July 2008
employment injury; therefore, this herniation was a sign of an acute injury. He explained that
biomechanically, bending, lifting and twisting leads to pressure around the disc, leading to
possible breakdowns and disc herniations; he noted that appellant had experienced a bending and
twisting injury at work with onset of right leg pain at that time. Dr. Seale stated:
“In my opinion, the patient’s degenerative disc disease is preexisting but his
foraminal disc herniation at L5-S1 on the right is an acute injury. This herniation
has led to significant leg pain radiating down to the foot. My recommendation
still stands that [appellant] needs to have a decompression and fusion. That is, if
he wants to have surgical intervention.… Again, I did describe to the patient
today that his degenerative changes were preexisting but I cannot say without a
shadow of a doubt that the disc herniation at L5-S1 is not acute. There is
currently no medical objective information available to me that lead me to believe
otherwise.”
By decision dated December 21, 2010, OWCP denied modification.2
By letter dated April 30, 2011, appellant’s attorney requested reconsideration.
By decision dated June 18, 2011, OWCP denied modification. It found that the medical
evidence of record did not explain the delay in the contention that appellant’s back condition was
causally related to the accepted July 23, 2008 event.

2

In its decision, OWCP noted that it had received an October 10, 2010 statement from the employing
establishment which indicated that appellant had actually injured his lower back while replacing his wood fence at
his residence in April 2009, not during the July 23, 2008 work incident.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 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.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7 The medical evidence required
to establish causal relationship is usually rationalized medical 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.8
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

8

Id.

9

See Joe T. Williams, 44 ECAB 518, 521 (1993).

10

Id.

5

ANALYSIS
OWCP has accepted that appellant lifted transmissions on July 23, 2008 and sustained
aggravation of a hemorrhoid condition. Appellant also requested that his claim be expanded for
acceptance of a low back condition. The Board finds that he has not met his burden of proof.
On appeal, appellant’s attorney argues that OWCP denied his claim for back injury on the
grounds that the record does not explain the delay between the July 2008 work incident and the
first mention of back symptoms and that his physician did not provide an adequate explanation of
how his back injury is tied to work factors. He argues that the record provides a reason for the
delay and that appellant has submitted rationalized medical opinion evidence establishing a causal
relationship between his injury and employment factors. Counsel contends that appellant
displayed consistent symptoms which bridge his initial claim to the claimed back injury. He stated
that, throughout the four-month period between appellant’s initial claim and the reported back
injury, he experienced pain in his lower back area and received treatment for the injury. Counsel
asserts that appellant has provided a continuous chain of medical evidence that flows consistently
from the work incident.
The question of whether an employment incident caused a personal injury can only be
established by probative medical evidence.11 Appellant has not submitted rationalized, probative
medical evidence to establish that the July 23, 2008 employment incident would have been
competent to cause the claimed lower back injury.
Appellant initially claimed that he sustained a rectal condition as a result of the July 23,
2008 employment incident. The medical evidence of record establishes that he initially sought
medical treatment for this rectal condition. Some months later, appellant underwent an MRI scan
of his low back on December 5, 2008, at the request of Dr. Benton, which was interpreted as
showing multilevel degenerative disc disease, predominantly at L5-S1.
Appellant submitted reports from Drs. Benton, House and Seale which stated findings on
examination and indicated that appellant had lower back symptomatology and diagnosed
herniated discs, radiculopathy, foraminal narrowing and degenerative disc disease at L4-5 and
L5-S1. These reports, however, did not sufficiently relate the diagnoses to the July 23, 2008
incident at work. The weight of medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.12
Dr. Benton stated in his January 5, 2009 report that appellant demonstrated radicular
symptoms in his right lower extremity on examination. He advised that appellant had undergone
an MRI scan on December 5, 2008 which showed foraminal narrowing and disc
bulging/protrusion at L4-5 and L5-S1. Dr. Benton asserted that appellant’s lower back

11

Carlone, supra note 7.

12

See Anna C. Leanza, 48 ECAB 115 (1996).

6

symptoms had commenced following the July 23, 2008 work incident in which he had been
lifting some transmissions.
In his August 28, 2009 report, Dr. House indicated that appellant had experienced back
pain which was the direct result of his lifting transmissions from the floor onto a table for
cleaning and shipment. He advised that appellant would eventually require surgery to alleviate
his back symptoms.
The opinions of Dr. Benton and Dr. House are of limited probative value in that they are
generalized in nature and equivocal in that they only noted summarily that appellant’s condition
was causally related to the July 23, 2008 work incident. These physicians presented diagnoses of
appellant’s condition and stated generally that he experienced back pain on July 23, 2008. They
did not adequately address whether appellant had a preexisting back condition, given the
degenerative disc disease found on MRI scan examination, did not address why appellant sought
medical treatment for his low back condition months following the July 23, 2008 event, and did
not address how the diagnosed condition was in fact physiologically and causally related to the
July 23, 2008 work incident. As such they do not provide the rationalized medical opinion
necessary to establish appellant’s claim.
Dr. Seale indicated in his February 16, 2010 report that appellant had developed severe,
constant lower back pain following an acute work injury on July 23, 2008 and diagnosed disc
herniation, foraminal, right, at L4-5. He stated that these symptoms had remained changed over
the last several months and were aggravated by standing, lifting and bending. Dr. Seale stated
that these symptoms did not begin immediately after appellant’s injury but came on suddenly,
afterwards. He offered no medical explanation as to why symptoms of back injury would not
begin immediately after the event, but would present suddenly at some point afterwards. The
Board also notes that Dr. Seale did not specifically identify when appellant’s back symptoms
began. It is especially important to determine when appellant’s symptoms began as Dr. Seale did
diagnose foraminal stenosis at L4-5 and L5-S1, with right leg pain, and degenerative disc disease
at L4-5, L5-S1, as well as disc herniation with low back pain. This evidence indicates that
appellant had a preexisting back condition, as well as an acute injury. Dr. Seale only noted in
general terms, without specificity, that, because appellant’s lower back symptomatology began
after his work injury, it was logical that his current symptomatology was directly related in the
July 23, 2008 work injury. In his October 8, 2010 report, he advised that appellant was still
having severe, constant pain in his low back radiating to his right buttock and down his leg, with
numbness in his right leg. Dr. Seale stated that appellant’s L5-S1 disc herniation was an acute
injury because there was no objective evidence showing that the disc herniation was present prior
to his July 2008 work injury. He advised that bending, lifting and twisting led to pressure around
the disc, leading to possible breakdowns and disc herniations and noted that appellant had
experienced a bending and twisting injury at work with an onset of right leg pain. Dr. Seale did
not explain why appellant did not require medical treatment for his back condition for months, if
in fact this was an acute injury. While Dr. Seale did explain in general terms the physiology as
to how a herniated disc would occur, he did not explain why appellant would not have reported a
back injury or sought medical treatment if in fact this injury occurred on July 23, 2008.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or

7

explains the medical process through which the July 23, 2008 work accident would have caused
the claimed injury. OWCP properly denied his 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 has failed to establish that he sustained a low back
condition in the performance of duty on July 23, 2008.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 18, 2012
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Miami, FL, Employer
__________________________________________

)
)
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)
)
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Appearances:
G. William Allen, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0691
Issued: November 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 1, 20172 appellant, through counsel, filed a timely appeal from an
August 5, 2016 nonmerit decision of the Office of Workers’ Compensation Programs

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 an
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 August 5, 2016, the date of OWCP’s last decision was
February 1, 2017. Since using February 6, 2017, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is February 1, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).3 The most recent merit decision in this case was the May 14, 2015 decision of the
Board which became final 30 days after issuance and is not subject to further review. As there
was no merit decision issued by OWCP within 180 days of the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances
surrounding the prior appeal are incorporated herein by reference. The relevant facts of the case
are set forth below.
OWCP accepted that on March 30, 2012 appellant, then a 53-year-old clerk, sustained a
cervical sprain and cervicalgia while lifting file boxes. Appellant stopped work at the time of
injury. He reported for duty on May 23, 2012, again stopped work and did not return.
Dr. Guillermo Pasarin, an attending Board-certified neurosurgeon, provided an
August 17, 2012 report noting multilevel spondylitic disc disease from C3 through C7, with
myelomalacia at C5-6 consistent with appellant’s neurologic symptoms in the right upper
extremity, and advanced degenerative disc disease with congenital stenosis. He opined that the
accepted cervical sprain likely exacerbated appellant’s preexisting degenerative conditions,
causing them to become symptomatic.
OWCP placed appellant’s case on the periodic rolls as of March 9, 2014.
By notice dated April 9, 2014, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits, based on the report of the second opinion medical
specialist, Dr. Peter J. Millheiser, a Board-certified orthopedic surgeon, as the accepted cervical
sprain and cervicalgia had ceased without residuals.
In a May 30, 2014 decision, OWCP finalized the termination of appellant’s wage-loss
compensation and medical benefits effective June 1, 2014 finding that the accepted neck sprain
had ceased without residuals. It accorded Dr. Millheiser the weight of the medical evidence.
By decision dated August 21, 2014, OWCP approved a request for a $4,560.00 attorney
fee, as appellant failed to raise a timely objection to the proposed fee.

3

Appellant timely requested oral argument before the Board. By order dated August 4, 2017, the Board
exercised its discretion and denied the request, finding that the issues could properly be adjudicated based on the
evidence of record. Order Denying Request for Oral Argument, Docket No. 17-0691 (issued August 4, 2017).
4

5 U.S.C. § 8101 et seq.

2

Appellant subsequently appealed to the Board.5
By decision dated May 14, 2015,6 the Board affirmed OWCP’s May 30 and August 21,
2014 decisions, finding that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 1, 2014 as the accepted neck sprain had ceased
without residuals, and that OWCP properly approved his counsel’s fee in the amount of
$4,560.00.
In June 18 and 20, 2015 letters, appellant requested reconsideration. He alleged a pattern
of misfeasance and obstruction by OWCP and the employing establishment in the processing of
his FECA claim. Appellant asserted that he required additional treatment for neurologic issues
affecting his right hand and both feet, and a urinary tract condition. He submitted additional
evidence.
Dr. Candelario Guzman, an attending family practitioner, provided an April 18, 2012
report diagnosing right arm, right hand, and right-sided neck pain related to the accepted
March 30, 2012 injury.
In a May 16, 2013 report, Dr. Pasarin found appellant’s cervical spine condition
unchanged, with advanced degenerative disc disease and early spinal cord compression at C5-6.
February 6, 2015 magnetic resonance imaging (MRI) scans showed multilevel
spondylitic changes and stenosis in the cervical spine, greatest at C5-6, and minimal spondylitic
changes of the lumbar spine.
Appellant provided police reports regarding a March 23, 2015 nonoccupational motor
vehicle collision in which his car was struck by another vehicle. He sought treatment for neck
and back pain following the accident from Dr. M. Cristina Crespo-Smith, a Board-certified
family practitioner, and Dr. Mrialini Sehgal, a Board-certified pathologist, who provided chart
notes through May 14, 2015.
Appellant also received chiropractic treatment through
May 21, 2015. Additionally, he enclosed copies of OWCP informational letters regarding the
status of his claim.
By decision dated July 8, 2015, OWCP denied reconsideration, finding that the evidence
submitted on reconsideration was irrelevant or cumulative. It found that appellant’s letters
reiterated his previous, unsubstantiated contentions that OWCP and the employing establishment
obstructed his FECA claim. OWCP further found that the medical evidence submitted on
reconsideration was irrelevant as it did not address the accepted injuries or appellant’s condition
prior to the termination of his compensation benefits on June 3, 2013.
5

During the pendency of the prior appeal, appellant submitted documents predating the accepted March 30, 2012
injury. This included October 9, 2002 work restrictions regarding right thumb tenosynovitis, imaging studies, and
progress notes from June 2004 to January 2005. Appellant also provided documents not pertaining to the accepted
injury. This included: fertility clinic records; weight management counseling, and laboratory studies; treatment
notes for diabetic retinopathy and peripheral neuropathy; February 17, 2015 electrodiagnostic studies confirming
diabetic peripheral neuropathy affecting both legs and the right arm; and a February 27, 2015 sleep study.
6

Docket No. 15-0284 (issued May 14, 2015).

3

In a May 4, 2016 letter, appellant, through counsel, again requested reconsideration. He
asserted that a new report from Dr. Pasarin was sufficient to outweigh Dr. Millheiser’s opinion
and establish causal relationship.
Dr. Pasarin opined in an April 20, 2016 report that it was “likely that the spinal cord and
the exiting nerve roots were dragged along the preexisting osteophytes,” combined with diabetes,
causing a recrudescence of symptoms. He noted, however, that appellant’s symptoms were
largely consistent with “the nature of his injury and consistent with the nature of his work-related
trauma” which was the predominant reason for continued treatment. Dr. Pasarin explained that
while appellant’s “bony pathology and disc disease is preexisting,” the accepted injury irritated
the nerve roots and spinal cord, permanently accelerating the previously quiescent condition, and
necessitating treatment and proposed surgery.” He found it “likely that lifting the heavy boxes
caused the spinal cord and nerves to be dragged across the degenerative disc disease,”
precipitating and accelerating degenerative disc disease into symptomatic myelopathy.
Dr. Pasarin noted that appellant’s bladder condition was unrelated to work factors.
By decision dated August 5, 2016, OWCP denied reconsideration, finding that
Dr. Pasarin’s April 20, 2016 report was repetitive of his prior opinions regarding a preexisting
degenerative cervical spine condition. Therefore, it was insufficient to warrant reopening
appellant’s claim on its merits.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that the evidence or argument submitted by 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.8 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 date of that decision.9 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.10
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.11 He need only submit
relevant, pertinent evidence not previously considered by OWCP.12 When reviewing an OWCP
5 U.S.C. § 8128 (a). Under section 8128 of FECA, “[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.”
7

8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

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

12

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

4

decision denying a merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.13
ANALYSIS
Appellant, through counsel, requested reconsideration by May 4, 2016 letter, received on
May 10, 2016. He provided an April 20, 2016 report from Dr. Pasarin, an attending Boardcertified neurosurgeon. OWCP denied reconsideration by August 5, 2016 decision, finding that
the evidence submitted on reconsideration was cumulative or irrelevant to the critical issue of
whether an accepted cervical sprain and cervicalgia sustained on March 30, 2012 ceased on or
before June 1, 2014.
Prior to appellant’s May 4, 2016 reconsideration request, there were two reports in the
medical record from Dr. Pasarin. In an August 17, 2012 report, Dr. Pasarin diagnosed congenital
cervical stenosis, and multilevel, spondylitic degenerative disc disease greatest at C5-6 with
radiation into the right upper extremity. He opined that the accepted March 30, 2012 cervical
spine sprain exacerbated appellant’s condition. On May 16, 2013 Dr. Pasarin found appellant’s
condition unchanged.
In his April 20, 2016 report submitted on reconsideration, Dr. Pasarin diagnosed
multilevel cervical degenerative disc disease with radiation into the right arm. He opined that the
March 30, 2012 cervical sprain exacerbated appellant’s condition. Both aspects of this report are
repetitive of Dr. Pasarin’s reports previously of record. While he provided additional detail as to
a possible mechanism of aggravation, Dr. Pasarin’s opinion generally supporting such
aggravation remained unchanged. Evidence which is duplicative, cumulative, or repetitive in
nature is insufficient to warrant reopening a claim for merit review.14 Therefore, Dr. Pasarin’s
April 20, 2016 report was insufficient to warrant reopening appellant’s case for a review on the
merits.
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence or argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal counsel contends that Dr. Millheiser’s opinion was of little to no probative
value because he had poor online reviews, and his opinion was vague and contradictory. He
argues that Dr. Millheiser failed to present evidence that appellant had preexisting cervical spine
conditions prior to the accepted cervical sprain. Counsel’s arguments pertain to the merits of the
claim, which are not before the Board on the present appeal.

13

See e.g., Annette Louise, 54 ECAB 783 (2003) (citing to 20 C.F.R. § 10.606(b)(2), the predecessor of 20 C.F.R.
§ 10.606(b)(3)).
14

Denis M. Dupor, 51 ECAB 482 (2000).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2016 is affirmed.
Issued: November 14, 2017
Washington, DC

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

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

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

6