United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sulphur Springs, TX, Employer
__________________________________________

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

Docket No. 15-394
Issued: May 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 10, 2014 appellant filed a timely appeal from a December 1, 2014 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 OWCP properly terminated appellant’s compensation effective
May 8, 2014 as he forfeited entitlement to compensation under 5 U.S.C. § 8148(a).
FACTUAL HISTORY
On November 19, 1991 appellant, then a 37-year-old city carrier, filed an occupational
disease claim alleging that he sustained bilateral tendinitis of the legs causally related to factors
of his federal employment. He stopped work on October 31, 1991. OWCP accepted the claim
1

5 U.S.C. § 8101 et seq.

for bilateral chondromalacia of the patella, lumbar sprain, and other unspecified disorders of the
lumbar spine.2
Appellant performed modified employment until March 26, 2011, when the employing
establishment sent him home under the National Reassessment Program (NRP) as there was no
work available within his restrictions. OWCP paid compensation benefits for disability
beginning March 26, 2011.
By decision dated April 2, 2012, OWCP reduced appellant’s compensation effective
April 8, 2012 based on its finding that he had the physical and vocational capacity to earn wages
in the selected positon of credit clerk.
In a statement dated April 5, 2012, appellant informed OWCP that he had requested that,
on April 7, 2012, the employing establishment was returning him to the payroll so he could
receive his annual and sick leave and asked that OWCP halt his compensation payments.
On April 5, 2012 appellant filed a claim for a schedule award. In a decision dated
July 27, 2012, OWCP granted him a schedule award for an additional seven percent impairment
of the left lower extremity.3 The period of the award ran from April 8 to August 27, 2012.
In a notice of proposed removal dated December 13, 2012, the employing establishment
advised that appellant had received both unemployment benefits from the Texas Workforce
Commission and compensation from OWCP from July 31, 2011 through August 27, 2012. It
further found that he had made a false statement to OWCP in order to obtain a schedule award
when he advised that he was being returned to the rolls of the employing establishment. On
January 22, 2013 the employing establishment removed appellant from employment for cause.
On June 7, 2013 appellant filed a claim for compensation beginning May 4, 2013.
In an investigative report dated June 20, 2013, Jeff Krafels, an assistant special agent in
charge with the employing establishment’s Office of Inspector General, advised that appellant
had been removed from the employing establishment for cause and that OWCP should terminate
compensation benefits. He indicated that appellant had received both state unemployment
compensation and schedule award benefits. By letter dated August 15, 2013, OWCP informed
Mr. Krafels that a claimant was not prohibited from receiving state unemployment compensation
while receiving OWCP benefits.
On June 25, 2013 OWCP advised appellant that it was returning him to the periodic rolls
and paying him compensation beginning May 4, 2013 based on his loss of wage-earning
capacity.

2

By decision dated August 13, 1997, OWCP granted appellant a schedule award for a 10 percent permanent
impairment of each upper extremity. In a decision dated February 8, 2008, it granted him a schedule award for 10
percent impairment of the right lower extremity.
3

OWCP issued an identical schedule award decision on July 13, 2012.

2

In an indictment dated September 23, 2013, a grand jury for the United States District
Court for the Eastern District of Texas charged appellant with one count of violating 18 U.S.C.
§ 1920, making false statement to obtain FECA benefits. It indicated that he falsely told OWCP
that he was on the payroll of the employing establishment in order to receive schedule award
benefits. The grand jury also charged appellant with a second count of violating 18 U.S.C.
§ 1920 for filing a July 7, 2013 claim for compensation for leave without pay that contained
fraudulent information and a third count of violating 18 U.S.C. § 641, theft of government
property, by obtaining state unemployment benefits from September 13, 2011 through
August 29, 2012.
On May 5, 2014 appellant pleaded guilty to count one, making a false statement to obtain
federal workers’ compensation benefits under 18 U.S.C. § 1920, when he told OWCP that he
was on the payroll of the employing establishment in order to obtain schedule award benefits.
On May 5, 2014 the District Court accepted the guilty plea. On May 8, 2014 a United States
District Judge accepted appellant’s guilty plea and found him guilty on count one of the
indictment, “conditioned upon the Court’s final acceptance of the guilty plea and plea agreement
at sentencing.” In a judgment in a criminal case dated October 9, 2014, the United States District
Court for the Eastern District of Texas found appellant guilty of one count of making a false
statement to obtain FECA compensation under 18 U.S.C. § 1920. It sentenced him to four years
of probation and to make restitution of $22,166.00 to the United States Department of Labor.
In an October 15, 2014 investigative report, an investigator indicated that on October 9,
2014 appellant was ordered to pay restitution of $22,164.00 to OWCP and sentenced to four
years of probation. It advised that in August 2011 appellant applied for and obtained state
unemployment benefits while concealing that he was also in receipt of federal workers’
compensation benefits. In April 2012, appellant falsely told OWCP that he was going to use sick
and annual leave in lieu of compensation and consequently received a schedule award. He also
filed a claim for compensation (Form CA-7) for leave without pay after he had been removed
from the employing establishment.
By decision dated December 1, 2014, OWCP terminated appellant’s compensation
effective May 8, 2014. It found that as he had pleaded guilty to making false statements to
obtain federal workers’ compensation, he forfeited his entitlement to compensation under section
8148 of FECA.
LEGAL PRECEDENT
Section 8148 of Title 5 of the United States Code, states, in part:
“(a) Any individual convicted of a violation of section 1920 of Title 18 or any
other [f]ederal or [s]tate criminal statute relating to fraud in the application for or
a receipt of any benefit under [FECA], shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would otherwise be
entitled to under [FECA] for any injury occurring on or before the date of such

3

conviction. Such forfeiture shall be in addition to any action the Secretary may
take under section 8106 or 8129.”4
Section 10.17 of the implementing federal regulations provide, as follows:
“When a beneficiary either pleads guilty to or is found guilty on either [f]ederal or
[s]tate criminal charges of defrauding the Federal Government in connection with
a claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial.”5
OWCP procedures require that to support termination or suspension of benefits under
section 8148, the case record must contain a copy of the indictment or information; a copy of the
plea agreement, if any; a copy of the document containing a guilty verdict; and/or a copy of the
court’s docket sheet. Further, this evidence must establish: (1) the individual was convicted;
and (2) the conviction is related to the claim for or receipt of benefits under FECA.6 The
effective date of termination in fraud cases under section 8148(a) is the date of conviction, which
is the date of the verdict or in cases of a plea agreement, the date the claimant made the plea in
open court (not the date of sentencing or when the court papers were signed).7 Due to the nature
of the termination involving fraud, no pretermination notice is required before issuing a final
decision.8
ANALYSIS
The Board finds that OWCP properly terminated appellant’s compensation benefits based
on his conviction in federal court of one count of making false statements to obtain FECA
benefits under 18 U.S.C. § 1920. On May 5, 2014 appellant pleaded guilty in the U.S. District
Court for the Eastern District of Texas to one count of violating 18 U.S.C. § 1920, on May 8,
2014 a judge accepted his guilty plea, and on October 9, 2014 a judge provided sentencing.
Under section 8148(a) of FECA, a claimant who is convicted of fraud in obtaining compensation
benefits under 18 U.S.C. § 1920 or any other federal or state criminal statute relating to fraud in
the application for or receipt of any benefit under FECA is permanently barred from receiving
any compensation under FECA.9 The record contains copies of the indictment, the plea
agreement, and the court judgment. The Board finds that this evidence establishes that appellant
was convicted of fraud in obtaining FECA compensation benefits.10 OWCP procedures provide
4

5 U.S.C. § 8148(a).

5

20 C.F.R. § 10.17.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.17c(2) (February 2013);
see also K.R., Docket No. 14-434 (issued October 7, 2014).
7

Id. at Chapter 2.1400.17(d) (February 2013).

8

Id. at Chapter 2.1400.4(a)(6) (February 2013).

9

Supra note 4; S.H., Docket No. 14-421 (issued August 27, 2014).

10

See supra note 6.

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that the termination is effective on the date the guilty plea is made in open court.11 The Board
finds that OWCP properly terminated appellant’s compensation benefits that date,
May 8, 2014.12
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation under
5 U.S.C. § 8148(a) effective May 8, 2014 on the grounds that he committed fraud in obtaining
compensation.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See supra note 7.

12

See John L. Hoss, Jr., 54 ECAB 239 (2002); Bob R. Gilley, 51 ECAB 377 (2000).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waldorf, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1068
Issued: June 20, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On April 13, 2015 appellant filed a timely application for review of the January 20, 2015
decision of the Office of Workers’ Compensation Programs (OWCP) in OWCP file number
xxxxxx897 and requested oral argument. In the January 20, 2015 decision, OWCP terminated
appellant’s medical and wage-loss compensation effective January 20, 2014. The Board
docketed this appeal as No. 15-1068.
The Board has duly considered the matter and notes that the Director has not transmitted
a complete copy of the January 20, 2015 decision by OWCP. Pursuant to the Board’s
regulations, OWCP shall provide to the Board the case record.1 The copy of the decision
currently before the Board does not include all pages from the Notice of Final Termination.
Therefore, the decision is incomplete, and the Board is not able to provide a proper review. The
Board, therefore, finds that the appeal docketed as No. 15-1068 is not currently in posture for a
decision.
Accordingly, the case is remanded to OWCP for reconstruction and proper assemblage of
the record to include a complete copy of the January 20, 2015 decision. On remand, OWCP
shall issue a de novo decision in order to protect appellant’s appeal rights.
1

20 C.F.R. § 501.4(b)(1).

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 20, 2015 is set aside, and the case is remanded to the
OWCP for further action consistent with this order of the Board.
Issued: June 20, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.U., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ZABLOCKI MEDICAL CENTER,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 07-1221
Issued: September 25, 2007

Case Submitted on the Record

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

JURISDICTION
On March 29, 2007 appellant filed a timely appeal from the merit decisions of the Office
of Workers’ Compensation Programs dated April 7 and June 16, 2006, affirming a schedule
award for six percent impairment to her right upper extremity. She also filed a timely appeal of a
January 17, 2007 nonmerit decision which denied her request for a review of the written record.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has jurisdiction over the merits of this
claim.
ISSUES
The issues are: (1) whether appellant has more than a six percent impairment of the right
upper extremity for which she received a schedule award; and (2) whether the Office properly
denied appellant’s request for a written review of the record.

FACTUAL HISTORY
On May 27, 2003 appellant, then a 59-year-old medical support assistant, sustained an
injury to her neck and right shoulder when the elevator she was riding stopped abruptly. She
stopped work as of the date of the accident and did not return. Appellant retired effective
December 8, 2003. On November 25, 2003 the Office accepted her claim for a cervical fracture.
Appropriate medical and compensation benefits were paid.
A magnetic resonance imaging (MRI) scan conducted on June 25, 2003 revealed a thin
line of bone marrow edema just below the superior endplate of C7, which most likely
represented a subacute, minimal superior endplate compression fracture of C7. Mild
degenerative spondylosis at C5-6 and C6-7 with mild-to-moderate right-sided neural foraminal
narrowing were also diagnosed.
On February 11, 2004 appellant was referred for a second opinion evaluation. In a
medical report dated May 28, 2004, Dr. James P. Foydel, a Board-certified physiatrist, noted that
he saw appellant on March 16, 2004. He noted that appellant sustained a C7 compression
fracture but that it was unclear whether she sustained any neurological deficits due to this injury.
Dr. Foydel recommended an electromyogram (EMG). He recommended that appellant be off
work for a month or so and, upon return to work, she should perform modified duty with
restrictions. Dr. Foydel noted that no permanent disability could be concluded at this time. He
noted that significant issues of disability followed the accident and that partial disability could
extend from 6 to 12 months. In a September 15, 2004 report, Dr. Foydel noted that an EMG
failed to reveal any significant nerve damage in the upper extremities and that all nerves were
within normal limits. There was nothing substantial insofar as neurological deficient or nerve
damage from the accident that caused her fracture and that the fracture had stabilized, if not fully
healed. Dr. Foydel noted that appellant guarded her neck in a defensive posture since the
accident and, therefore, had a very limited range of motion with muscle spasms. Appellant did
not have any other medical conditions or any preexisting conditions made worse by this
condition. He noted that appellant had not reached maximum medical improvement, but that
there was no permanent nerve damage, no permanent disability and her prognosis for recovery
was excellent.
By letter dated June 23, 2005, the Office asked Dr. Subbanna Jayaprakash, appellant’s
Board certified physiatrist, to evaluate her with regard to any permanent impairment. In a
medical disability certification dated July 21, 2005, Dr. Jayaprakash listed appellant’s diagnosis
as C7 fracture with C5-6 disc protrusion and right C6 radiculopathy. He opined that appellant
had an 18 percent impairment of the whole person based on the American Medical Association,
Guides to the Evaluation of Permanent Impairment.1

1

Dr. Jayaprakash based his impairment rating on appellant having a diagnosis-related estimate category three
pursuant to A.M.A., Guides 392, Table 15-5. He listed his reason for disability recommendations as spasm C5-7
posterior paraspinals plus loss of range of motion passive neck forward flexion of 20 degrees and right lateral
rotation and flexion of 20 degrees.

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In an October 2, 2005 report, an Office medical adviser opined that appellant had a three
percent impairment of her right upper extremity.2
On November 1, 2005 the Office issued a schedule award for a three percent impairment
of appellant’s right upper extremity.
On November 12, 2005 appellant requested reconsideration.
In a medical report dated March 10, 2006, Dr. Jayaprakash noted that appellant had
residual weakness of the C6 root affecting the right biceps and supinator and hand grip at 3+/4(30 percent) loss as well as supraspinatus (30 percent) and residual numbness in the
C6 distribution at 50 percent especially forearm and right index finger. Then, utilizing the
A.M.A., Guides,3 Dr. Jayaprakash found that, pursuant to the A.M.A., Guides, appellant had a
16 percent impairment of the right upper extremity. He based this finding on a 4 percent sensory
deficit at C6 (8 percent multiplied by 50 percent equals 4 percent) and a motor deficit of
12 percent at C6 (33 percent multiplied by 30 percent equals 12 percent). Dr. Jayaprakash
concluded that 12 percent plus 4 percent equaled 16 percent right upper extremity impairment.
In a report dated March 27, 2006, the Office medical adviser determined that no
additional award was merited. He noted that there was no new documentation of appellant’s
current subjective complaints. The Office medical adviser noted that Dr. Foydel had previously
documented no residual impairment, whereas Dr. Jayaprakash recommended 16 percent right
upper extremity impairment based on C6 nerve root deficiencies. He stated that the etiology of
the C6 nerve root impairment was unclear. The Office medical adviser indicated that appellant’s
MRI scan indicated no neural compression with and a normal EMG, so there was no objective
evidence of injury. Secondly, he noted that no award should be given for C6 nerve root motor or
sensory impairment due to the likelihood that this impairment, if existent, stemmed from an
underlying osteoarthritic degenerative process and unlikely due to the accepted injury.
By decision dated April 7, 2006, the Office denied an additional schedule award.
On April 27, 2006 appellant requested reconsideration. She submitted an April 27, 2006
report from Dr. Jayaprakash. He reviewed the report of the Office medical adviser and stated
that appellant’s work trauma had two components: a direct trauma to her vertebrae with fracture
as well as an aggravated trauma to the adjacent spinal segment (C6-7) intervertebra level which
may have been arthritic however asymptomatic until the force of her trauma permanently
aggravated the underlying degenerative condition. He noted that the consequences were
worsening of instability at C6-7 with pain and C6 nerve root irritation and some numbness and
residual disability. Dr. Jayaprakash stated that the MRI scan clearly showed changes at the C6-7
level, but that a computerized tomography scan would have been better suited to look at
2

The Office medical adviser utilized the A.M.A., Guides 424, Tables 15-15, 15-16 and 15-17. Appellant had one
percent impairment of her right upper extremity for Grade 4 pain/sensory deficit in the C7 distribution and a two
percent right upper extremity based on a Grade 4 motor deficit in the right C7 distribution. Utilizing the Combined
Values Chart of the A.M.A., Guides, he concluded that appellant was entitled to a schedule award for a three percent
impairment to her right upper extremity.
3

A.M.A., Guides 488, 489.

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foraminal changes than an MRI scan. He further noted that sensory changes alone do not alter
nerve conduction studies or EMG studies, hence none were found.
In a report dated June 5, 2006, the Office medical adviser concluded:
“Therefore, at this time, the only additional upper extremity [permanent partial
impairment] awarded at this time is for a [G]rade 4 pain/sensory deficit in the C6
nerve distribution on the right. One percent [right upper extremity permanent
partial impairment] is awarded based on [T]ables 15-15 combined with [T]able
15-17, p. 424 of the [A.M.A., Guides]. An additional [two] [percent right upper
extremity permanent partial impairment] is awarded for a [G]rade 4 motor deficit
in the right C6 nerve distribution according to [T]ables 15-16 and 15-17 on the
same page.
“Use of the [C]ombined [V]alues [Chart] on 604 awards a total of [six percent
right upper extremity permanent partial impairment.] There is no objective
evidence to support any [left upper extremity permanent partial impairment] at
this time.”
In a decision dated June 16, 2006, the Office granted a schedule award for an additional
three percent impairment to the right upper extremity, or a total of six percent impairment.
On June 22, 2006 appellant requested review of the written record. In a June 7, 2006
report, Dr. Jayaprakash reiterated that her degenerative changes were clearly aggravated as a
result of her work-related injury and trauma. Appellant continued to have considerable amounts
of problems involving the shoulder area and the scapular area on the right.
In a decision dated September 13, 2006, the hearing representative set aside the June 16,
2006 decision and remanded the case because the record did not include the Office medical
adviser’s June 5, 2006 report. In a November 16, 2006 decision, the Office reissued the schedule
award for six percent to her right upper extremity.
On January 17, 2007 appellant requested a review of the written record of the
November 16, 2006 decision. She alleged that she was not informed of the November 16, 2006
decision until December 28, 2006 and that she did not receive the decision until January 5, 2007.
By decision dated February 21, 2007, appellant’s request was denied as it was filed more
than 30 days after the September 13, 2006 decision. The Office reviewed appellant’s request and
denied it for the reason that the case could be equally well addressed by requesting
reconsideration.

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LEGAL PRECEDENT
The schedule award provision of the Federal Employees Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides have been adopted by the
implementing regulation as the appropriate standards for evaluating schedule losses.6
ANALYSIS
The Office medical adviser, in determining appellant’s schedule award, relied on the
findings of Dr. Foydel, the second opinion physician, and his conclusion that there was no
residual impairment The Office medical adviser disagreed with appellant’s treating physician,
Dr. Jayaprakash, on whether the schedule award should include appellant’s C6 condition,
interpretation of the MRI scan and the appropriate tables of the A.M.A., Guides to be applied.
The doctors also disagreed as to the amount of permanent impairment, with Dr. Jayaprakash
finding that she had a 16 percent impairment of the right upper extremity and the Office medical
adviser finding that she had no more than a six percent impairment of the right upper extremity.
Both physicians addressed how they utilized the A.M.A., Guides, in arriving at their respective
impairment rating.
Section 8123(a) of the Act provides, in pertinent part: If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.7 When there are
opposing reports of virtually equal weight and rationale the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.8 The Board finds that the Office should have referred appellant to an impartial
medical specialist to resolve the medical conflict regarding the extent of permanent impairment
arising from appellant’s accepted employment injury.
The case will be remanded to the Office for referral of appellant to an impartial medical
specialist for a determination regarding the extent of impairment to her right upper extremity.9

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

7

5 U.S.C. § 8123(a).

8

William C. Bush, 40 ECAB 1064 (1989).

9

See Harold Travis, 30 ECAB 1071, 1078-79 (1979).

5

After such further development as the Office deems necessary, a de novo decision should be
issued regarding the extent of appellant’s right upper extremity impairment.10
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 17, 2007 and June 16 and April 7 2006 are set aside and
the case is remanded for further action consistent with this decision.
Issued: September 25, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10

In light of the disposition of this issue, the issue with regard to whether the Office properly denied appellant’s
request for written review of the record is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
INSTALLATIONS COMMAND,
Portsmouth, VA, Employer
__________________________________________

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

Docket No. 19-1009
Issued: October 22, 2019

Case Submitted on the Record

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

JURISDICTION
On April 8, 2019 appellant filed a timely appeal from a March 13, 2019 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 OWCP abused its discretion by denying appellant’s request for
authorization of lumbar spinal fusion surgery.
FACTUAL HISTORY
On June 28, 2017 appellant, then a 64-year-old substance abuse counselor, filed a traumatic
injury claim (Form CA-1) alleging that he strained his lower back on June 9, 2017 when he reached
for objects that were falling off a dolly while in the performance of duty. He reported that he was
moving items to his new office. On the reverse side of the claim form, the employing
1

5 U.S.C. § 8101 et seq.

establishment indicated that the alleged injury occurred in the performance of duty and that
appellant had not stopped work.
By decision dated August 2, 2017, OWCP accepted appellant’s claim for right-side
sciatica.
On July 27, 2017 appellant underwent a lumbar spine magnetic resonance imaging (MRI)
scan, interpreted by Dr. Hiten B. Patel, a Board-certified psychiatrist. Dr. Patel noted degenerative
disc disease, severe central canal stenosis at L3-4 and L4-5, moderate central canal stenosis at L23, mild central canal stenosis at L1-2 and L5-S1, multilevel foraminal stenosis most prominent at
L4-5, and grade 1 anterolisthesis at L4-5.
In an August 8, 2017 examination note, Dr. Felix Kirven, a Board-certified orthopedic
surgeon, reviewed appellant’s history and recounted his complaints of lumbar pain. Sensory
examination revealed decreased sensation of L5 dermatomes bilaterally in the lower extremities.
Upon examination of appellant’s lower lumbar spine, Dr. Kirven observed forward bending of 50
degrees, extension to neutral, and side-bending of 20 degrees. Phalen’s spinal test was positive.
Dr. Kirven diagnosed right-side sciatica, herniated disc at L4-5 with stenosis at L4-5, and grade 1
spondylolisthesis at L4-5. He recommended a posterior lumbar laminectomy at L4-5,
transforaminal interbody fusion at L4-5, posterior bone grafting L4-5, and bilateral lateral
instrumented fusion L4-5.
On August 10, 2017 OWCP received Dr. Kirven’s request seeking authorization for
lumbar spine fusion surgery.
In an October 7, 2017 report, Dr. Nizar Souayah, a Board-certified psychiatrist and
neurologist serving as an OWCP district medical adviser (DMA), reviewed a statement of accepted
facts (SOAF) and noted that appellant’s claim was accepted for right side sciatica. He discussed
the medical treatment that appellant had received and opined that the requested lumbar spine fusion
surgery was not medically necessary to treat appellant’s accepted lumbar injury. The DMA
explained that the medical evidence of record failed to establish that appellant had failed all
conservative therapies, including epidural injections, acupuncture, chiropractic treatment, or other
structured pain management strategy.
By decision dated November 2, 2017, OWCP denied authorization for lumbar spine fusion
surgery finding that the weight of the medical evidence rested with the October 7, 2017 report of
the DMA.
On June 7, 2018 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. He indicated that he was providing medical
documentation which showed the medical treatment, including epidural steroid shots and physical
therapy, that he had received.
Appellant submitted additional reports dated August 8, 2017 to May 1, 2018 from
Dr. Kirven who noted his treatment of appellant for his lumbar conditions.
In a May 2, 2018 letter, Dr. Kirven recounted that appellant continued to experience lower
back pain with bilateral leg numbness and tingling. He reported that appellant had failed
conservative therapy, including three epidural injections, trigger point injections, physical therapy,
2

and non-steroid, anti-inflammatory medication. Dr. Kirven requested approval for a lumbar
decompressive laminectomy at L4-5 with an instrumented posterior fusion at L4-5 and disc
excision at L4-5 with posterior bone grafting at L4-5 with an interbody fusion at L4-5.
By decision dated June 28, 2018, an OWCP hearing representative denied appellant’s
request for a review of the written record finding that his request had not been made within 30
days of the November 2, 2017 decision.
Appellant subsequently requested reconsideration of the November 2, 2017 decision on
July 9, 2018.
On July 19, 2018 OWCP referred appellant, along with the SOAF and a copy of the record,
to Dr. James Schwartz, a Board-certified orthopedic surgeon, for a second opinion evaluation to
determine if the conditions of lumbar intervertebral disc disorder with radiculopathy, lumbar
spondylolisthesis, and lumbar spinal stenosis were causally related to the July 9, 2017 employment
injury and if the proposed lumbar decompressive laminectomy at L4/5 with fusion surgery was
appropriate and medically necessary for the accepted lumbar injury.
In an August 18, 2018 second opinion report, Dr. Schwartz reviewed appellant’s history,
including the SOAF, and noted that the claim was accepted for right-side sciatica. He recounted
appellant’s complaints of burning pain in the back of his right leg down to the back of the knee.
Upon examination of appellant’s lumbar spine, Dr. Schwartz observed essentially no lumbar
extension, right and left lateral bending to 5 degrees, and rotation to 5 to 10 degrees with pain.
Straight leg raise testing on the right at 45 degrees with burning down his right leg and on the left
to 60 degrees with pain. Dr. Schwartz diagnosed right-side sciatica and permanent aggravation of
lumbar spinal stenosis with claudication as causally related to the June 9, 2017 employment injury
and lumbar spinal stenosis with claudication L4-5, not related to the June 9, 2017 employment
injury. He reported that appellant needed an L4-5 lumbar decompression, but he was unclear,
given appellant’s age and activity level, whether lumbar fusion surgery was necessary.
Dr. Schwartz explained that a lumbar decompression surgery may produce significant lumbar
instability, but there was no evidence of lumbar instability at the present time. He concluded that
lumbar decompression surgery was an accepted medical practice to treat appellant’s lumbar injury,
but he explained that fusion surgery was not yet necessary unless instability was caused by the
decompression surgery.
In a September 8, 2018 letter, Dr. Kirven noted his disagreement with Dr. Schwartz’s
opinion that lumbar fusion surgery was not required to treat appellant’s accepted lumbar injury.
He indicated that appellant’s severe central canal stenosis would require a wide laminectomy.
Dr. Kirven explained that, without an instrumented posterior spinal fusion, appellant’s spine would
be unstable, considering the amount of decompression that was needed. He reported that, although
his proposed surgery was more extensive than a simple decompressive surgery, the surgery would
benefit appellant.
OWCP determined that there was a conflict in medical opinion between the treating
physician, Dr. Kirven, and OWCP’s second opinion physician, Dr. Schwartz, regarding whether
the conditions of lumbar intervertebral disc disorder with radiculopathy, lumbar spondylolisthesis ,
and lumbar spinal stenosis were causally related to the June 9, 2017 employment injury and
whether the proposed lumbar decompressive laminectomy at L4-5 with fusion was appropriate
and necessary for the accepted employment injury. It referred appellant to Dr. Mohammad H.
3

Zamani, a Board-certified orthopedic surgeon, for an impartial medical examination in order to
resolve the conflict in medical opinion.
In a November 20, 2018 report, Dr. Zamani described the June 9, 2017 employment injury
and reviewed appellant’s medical records. He noted that diagnostic testing did not support a
diagnosis of herniated disc at L4-5. Upon examination of appellant’s lumbar spine, Dr. Zamani
observed pain on palpation of the lower lumbar area. Straight leg raise testing in the sitting position
revealed some tightness of the hamstring without pain. Dr. Zamani indicated that appellant no
longer suffered from radiculopathy due to his June 9, 2017 employment injury and, therefore, the
requested surgery was not required. He further reported that appellant suffered from an
exacerbation of a preexisting spinal stenosis condition, which existed by natural history and that
there would come a time that required some surgery.
By decision dated January 11, 2019, OWCP denied modification of the November 2, 2017
decision. It found that the special weight of the medical evidence rested with the November 20,
2018 decision of Dr. Zamani, the impartial medical examiner.
On February 13, 2019 appellant requested reconsideration.
In a January 22, 2019 letter, Dr. Kirven recounted that appellant continued to have
symptomatic back and left lower extremity weakness due to his June 9, 2017 employment injury.
He noted his disagreement with Dr. Zamani’s opinion regarding causation and appellant’s
treatment. Dr. Kirven reported that as Dr. Schwartz, OWCP’s second-opinion examiner, had
agreed that appellant was in need for a simple decompression lumbar surgery, OWCP should
authorize a simple decompression surgery.
By decision dated March 13, 2019, OWCP denied modification of the January 11, 2019
decision. It found that the special weight of the medical evidence rested with the November 20,
2018 decision of Dr. Zamani, the impartial medical examiner, who opined that the requested
lumbar decompressive laminectomy and with fusion surgery was not appropriate and necessary to
treat appellant’s accepted June 9, 2017 employment injury.
LEGAL PRECEDENT
Section 8103(a) of FECA2 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed by or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation. 3
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
determining whether a particular type of treatment is likely to cure or give relief. 4 The only
limitation on OWCP’s authority is that of reasonableness. 5

2

Id.

3

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4

R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-812 (issued April 3, 2009).

5

D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).

4

Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion. 6
To be entitled to reimbursement of medical expenses, a claimant has the burden of proof
to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. 7 Proof of causal relationship must include supporting rationalized
medical evidence.8 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the procedure was for a condition related to the employment injury and that
the surgery was medically warranted. 9 Both of these criteria must be met in order for OWCP to
authorize payment.10
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 11 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case. 12 For
a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”13 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight. 14
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that OWCP improperly determined that a conflict in medical opinion
evidence existed between Dr. Kirven, appellant’s treating physician, and Dr. Schwartz, OWCP’s
6

E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007);
Daniel J. Perea, 42 ECAB 214 (1990).
7

J.T., Docket No. 18-0503 (issued October 16, 2018); Debra S. King, 44 ECAB 203, 209 (1992).

8

C.L., Docket No. 17-0230 (issued April 24, 2018); M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB
282 (1986).
9
J.R., Docket No. 18-0603 (issued November 13, 2018); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E.
Benton, 15 ECAB 48, 49 (1963).
10

J.L., Docket No. 18-0990 (issued March 5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331,
333 (2000).
11

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
12

20 C.F.R. § 10.321.

13

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

14

Id.; Gloria J. Godfrey, 52 ECAB 486 (2001).

5

second-opinion examiner, regarding whether the proposed lumbar decompressive and fusion
surgery were medically necessary to treat appellant’s accepted lumbar injury. In an August 8,
2017 and May 2, 2018 letter, Dr. Kirven recommended a posterior lumbar laminectomy at L4-5
and bilateral lateral instrumented fusion at L4-5. He explained that appellant had failed
conservative treatment and still experienced lower back pain. In an August 18, 2018 report,
Dr. Schwartz determined that lumbar decompressive surgery was an appropriate course of
treatment for appellant’s accepted lumbar injury, but he was not sure if fusion surgery was
necessary unless instability was caused by the decompression surgery. He also noted that appellant
would need an evaluation of his hips in order to determine if lumbar decompression surgery may
produce significant lumbar instability.
The Board finds that Dr. Schwartz’s August 18 2018 report lacked sufficient medical
rationale and is not of equal weight to Dr. Kirven’s reports as OWCP had determined. In
determining the probative value of medical evidence, the Board considers such factors as the
opportunity for and thoroughness of examination performed by the physician, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.15 In this
case, Dr. Schwartz agreed that appellant needed lumbar decompressive surgery. He disagreed on
whether lumbar fusion surgery was necessary.
The Board finds that Dr. Schwartz did not provide a conflicting opinion on whether lumbar
decompressive surgery was medically necessary and appropriate to treat appellant’s accepted
lumbar injury. The Board also notes that Dr. Schwartz did not provide an unequivocal opinion
that the proposed lumbar fusion surgery was not medically necessary. Dr. Schwartz noted that it
was unclear from the record if lumbar fusion surgery was necessary and indicated that additional
evaluation was needed. Medical opinions that are speculative or equivocal in character are of
diminished probative value. 16 The Board finds, therefore, that this report is of diminished
probative value and is insufficient to create a conflict in medical opinion with Dr. Kirven.17 As
there was no conflict in medical evidence between Dr. Kirven and Dr. Schwartz pursuant to 5
U.S.C. § 8128(a), the referral to Dr. Zamani was for a second opinion examination. 18
In a November 20, 2018 report, Dr. Zamani reviewed the medical evidence of record and
provided examination findings related to appellant’s lumbar spine. He determined that appellant’s
lumbar radiculopathy had resolved and, therefore, the proposed lumbar decompressive and fusion
surgery was not medically necessary to treat appellant’s accepted lumbar injury. The Board finds
15

C.D., Docket No. 17-1623 (issued February 20, 2018); James T. Johnson, 39 ECAB 1252, 1256 (1988).

16

D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a
physician supporting causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical certainty).
17

See supra note 11.

18

See S.M., Docket No. 19-0397 (issued August 7, 2019) (the Board found that at the time of the referral for an
impartial medical examination there was no conflict in medical opinion evidence; therefore, the referral was for a
second opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as
there was no conflict in medical opinion evidence, the report of the physician designated as the impartial medical
examiner was not afforded the special weight of the evidence, but instead considered for its own intrinsic value as he
was a second opinion specialist).

6

that there is now a conflict in medical evidence between Dr. Kirven and Dr. Zamani regarding
whether the proposed lumbar decompressive and fusion surgery was medically necessary and
appropriate to treat his accepted June 9, 2017 employment injury.
Because there is an unresolved conflict in medical opinion regarding whether the requested
lumbar decompressive and fusion surgery was medically necessary to treat appellant’s accepted
June 9, 2017 employment injury, the case shall be remanded to OWCP for referral to an impartial
medical examiner pursuant to section 8123(a) of FECA. 19 After this and such further development
as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: October 22, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19

Supra notes 11 and 13.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.F., Appellant
and
U.S. POSTAL SERVICE, JAMES C. BROWN,
JR. POST OFFICE, Las Vegas, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1576
Issued: August 4, 2020

Case Submitted on the Record

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

JURISDICTION
On July 18, 2019 appellant, through counsel, filed a timely appeal from an April 29, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

The Board notes that, following the April 29, 2019 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 evidence for
the first time on appeal. Id.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to expand the acceptance of her
claim to include dysarthria causally related to her October 22, 2011 employment injury.
FACTUAL HISTORY
On October 22, 2011 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her head, face, neck, and ears when the
top shelf of a cage struck the top of her head while she was in the performance of duty. OWCP
accepted the claim for a contusion of the face, scalp, and neck. It subsequently expanded
acceptance of the claim to include neck sprain and a temporary aggravation of cervical
intervertebral disc disease with myelopathy. Appellant sustained intermittent periods of disability
from employment from December 5, 2011 and OWCP initially paid her wage-loss compensation
on the supplemental rolls. She received compensation on the periodic rolls as of August 26, 2012.
By decision dated February 14, 2013, OWCP reduced appellant’s wage-loss compensation
based on her failure, without good cause, to participate in vocational rehabilitation. It found that
if she had participated in vocational rehabilitation she would have been able to perform the duties
of a customer service representative.
On April 18, 2016 appellant returned to limited-duty work as a modified mail handler at
the employing establishment for six hours per day. OWCP paid her wage-loss compensation for
two hours per day.
On November 7, 2017 appellant filed a wage-loss compensation claim (Form CA-7) from
August 23 to October 23, 2017. An attached time analysis form (Form CA-7a) indicated that she
had requested leave without pay for eight hours per day beginning September 2, 2017.
On November 21, 2017 Dr. Nouhad Damaj, a Board-certified internist, indicated that
appellant had experienced “chronic severe neck pain, headaches, and tingling sensations ever since
[appellant’s] accident at work on October 22, 2011.” He advised that she had received a late
diagnosis of dysarthria due to her October 22, 2011 employment injury. Dr. Damaj found that
appellant was unable to work from August 31, 2017 until January 2, 2018.
On December 6, 2017 counsel requested that OWCP expand acceptance of appellant’s
claim to include dysarthria.
In a January 18, 2018 duty status report (Form CA-17), Dr. Damaj diagnosed dysarthria
and cervical spine degeneration. He found that appellant was disabled from work.

3

5 U.S.C. § 8101 et seq.

2

The employing establishment on February 14, 2018 advised that appellant had stopped
work on September 2, 2017.
In a development letter dated February 14, 2018, OWCP noted that it had received
appellant’s request for wage-loss compensation beginning October 25, 2017 and her request to
expand acceptance of her claim to include an additional condition contributing to her disability. It
advised that it was not going to take action on CA-7 forms until it had adjudicated the issue of
claim expansion.
In a separate letter of the same date, OWCP requested that appellant submit additional
evidence supporting that she had sustained a recurrence of disability beginning September 2, 2017,
including an opinion addressing the causal relationship between her current condition and the
accepted employment injury. It afforded her 30 days to submit the requested information.
Appellant, in a February 21, 2018 response to OWCP’s development letter, advised that at
the end of May 2017 she had lost the ability to verbally communicate. Since that time, she had
experienced periodic disability from work due to her slurred speech and confusion. Appellant
attributed her dysarthria to the blow to her head on October 22, 2011.
In a February 21, 2018 report, Dr. Damaj noted that appellant had a history of dizziness,
headaches, neck pain, back pain, leg weakness, and difficulty walking. He diagnosed headaches,
concussion, cervical and lumbosacral degenerative disc disease, neuropathy, dysarthria, lupus,
fibromyalgia, anxiety, and depression. Dr. Damaj attributed all of appellant’s symptoms to her
October 22, 2011 employment injury and opined that she was totally disabled.
On February 22, 2018 counsel asserted that appellant had missed time from work due to
her accepted conditions rather than dysarthria and requested that she be paid compensation for
total disability from work.
In an April 23, 2018 response to OWCP’s development letter, appellant noted that, in
July 2017, the employing establishment moved her to a new location, which caused migraines,
pain, and dysarthria.
On April 23, 2018 Dr. Damaj provided the same diagnoses as in his prior report and again
found that appellant’s symptoms were due to her October 22, 2011 employment injury. He advised
that she had progressive and worsening symptoms of headaches, memory loss, dysarthria,
neuropathy, lupus, and fibromyalgia that were impacting her ability to function.
On May 22, 2018 OWCP referred appellant to Dr. Gary J. La Tourette, a Board-certified
orthopedic surgeon, to determine whether she had further residuals or disability causally related to
her accepted employment injury.
In a report dated August 13, 2018, Dr. La Tourette provided as orthopedic diagnoses
cervicalgia and cervical sprain/strain. He noted that the records did not indicate the weight of the
object that had struck appellant in the head. Dr. La Tourette advised that her subjective complaints
were unsupported by objective findings. He recommended a neurological evaluation.

3

On September 19, 2018 OWCP provided Dr. Damaj with a copy of Dr. La Tourette’s
report and authorized an evaluation with a neurologist. It advised that he should contact OWCP
within 15 days if he was unable to arrange for an evaluation so that one could be scheduled. OWCP
requested that Dr. Damaj provided copies of any prior neurological evaluations.
The employing establishment on September 21, 2018 specified that the mail container that
had struck appellant weighed 230 pounds empty and had a maximum capacity of 1,200 pounds.
By decision dated September 27, 2018, OWCP denied appellant’s request to expand
acceptance of her claim to include the additional condition of dysarthria causally related to her
employment injury. It found that she had not submitted reasoned medical evidence establishing
that the diagnosed condition was due to her October 22, 2011 employment injury.
On October 22, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Thereafter, OWCP received an April 1, 2016 progress report from Dr. Jay Mahajan, an
osteopath and Board-certified neurologist. Dr. Mahajan noted that he had last evaluated appellant
on June 30, 2015 for complicated migraines. He diagnosed cervicalgia, complicated migraine,
fibromyalgia, dysesthesia, ataxia, lupus, hemiparesis, and chronic migraine.
On May 28, 2017 Dr. Mahajan evaluated appellant at the hospital. He obtained a history
of her waking up complaining of “difficulty with speech, severe headache, and left arm and leg
weakness.” Dr. Mahajan noted that a computerized tomography scan of the brain was normal.
Appellant’s symptoms improved such that she could whisper words. Dr. Mahajan diagnosed
dysarthria, left hemiparesis, intractable migraine, malignant hypertension, encephalopathy seizure
versus hypertensive etiology, cervicalgia, gait ataxia, fibromyalgia, and lupus. He provided the
same diagnoses in a May 30, 2017 report.
A May 29, 2017 magnetic resonance angiography (MRA) of appellant’s head yielded
normal results. A magnetic resonance imaging (MRI) scan of the brain obtained on the same date
also yielded normal findings.
In the last page of June 12, 2017 discharge summary, Dr. Zongqi Yang, an internist, noted
that appellant had awakened unable to speak after experiencing a headache for two days. He noted
that objective tests obtained in the hospital were normal and that she had recovered her ability to
speak with time.
In a report dated December 13, 2018, Dr. Mahajan discussed appellant’s history of losing
her voice and stuttering when it returned. He diagnosed migraines, carpal tunnel syndrome,
dysesthesia, fibromyalgia, lupus, a skin sensation disturbance, hemiparesis, paresthesia,
neuropathy, and speech abnormality.
A telephonic hearing was held on February 13, 2019. Appellant advised that she had
stopped work after the employing establishment sent her home because she refused to sign a new
job offer. She alleged that her manager screamed at her when she wanted to take the offer to her
physician and she began stuttering due to her dysarthria. Appellant indicated that she had stopped
work in July or August 2017.
4

By decision dated April 29, 2019, OWCP’s hearing representative affirmed the
September 27, 2018 decision. She found that appellant had not submitted medical evidence
sufficient to establish that appellant’s claim should be expanded to include the condition of
dysarthria and that she had, thus, failed to establish entitlement to wage loss for any disability due
to that condition. The hearing representative noted that OWCP had not adjudicated appellant’s
claims for compensation for intermittent disability beginning in July 2017 and from August 25,
2017 and continuing. She instructed OWCP, upon return of the case record, to consider whether
appellant had established disability due to her accepted employment injury for any of the claimed
periods.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4
Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.5 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.6
ANALYSIS
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include dysarthria causally related to her October 22, 2011 employment injury.
In support of her request for claim expansion, appellant submitted a February 21, 2018
report from Dr. Damaj, who discussed her history of dizziness, pain in her back and neck,
headaches, and leg weakness. Dr. Damaj diagnosed headaches, brain concussion, cervical and
lumbosacral degenerative disc disease, neuropathy, dysarthria, lupus, fibromyalgia, anxiety, and
depression. He advised that appellant’s symptoms resulted from her October 22, 2011
employment injury and found that she was totally disabled. While Dr. Damaj provided a
conclusory opinion on causal relationship, he did not explain how the accepted employment injury
caused or aggravated dysarthria. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition is causally related to employment factors.7 This report is therefore insufficient
to establish claim expansion.

4

K.T., Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

5

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6

Id.

7

A.T., Docket No. 19-1608 (issued April 21, 2020); A.L., Docket No. 18-1706 (issued May 20, 2019).

5

On April 23, 2018 Dr. Damaj indicated that appellant’s headaches, memory loss,
dysarthria, neuropathy, lupus, and fibromyalgia were progressing, decreasing her ability to
function. He attributed her symptoms to the October 22, 2011 employment injury. Dr. Damaj
diagnosed headaches, brain concussion, cervical and lumbosacral degenerative disc, neuropathy,
dysarthria, lupus, fibromyalgia, anxiety, and depression. While he opined that appellant’s
symptoms of dysarthria were related to her employment injury, he failed to provide a history of
injury or explain how the mechanism of injury would have physiologically caused or aggravated
the diagnosed conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.8 Dr. Damaj’s report, therefore, is insufficient to establish expansion of the acceptance
of her claim.
On November 21, 2017 Dr. Damaj noted that appellant had experienced headaches, neck
pain, and tingling sensations after a work accident on October 22, 2011. He indicated that she had
also been given a late diagnosis of dysarthria as a result of her October 22, 2011 employment
injury. Dr. Damaj opined that appellant was disabled from employment for the period August 31,
2017 through January 2, 2018. While Dr. Damaj noted that she had received a diagnosis of
dysarthria due to her accepted employment injury, he did provide an independent causation finding
and, thus, his report is of little probative value.9 Additionally, Dr. Damaj failed to provide any
rationale explaining how the additional diagnosis of dysarthria was causally related to the accepted
employment injury.10 Consequently, his report is insufficient to meet appellant’s burden of proof.
The remaining reports fail to address causation. In a progress report dated April 1, 2016,
Dr. Mahajan noted that he had treated appellant for migraines in 2015. He diagnosed cervicalgia,
complicated migraine, fibromyalgia, dysesthesia, ataxia, lupus, hemiparesis, and chronic migraine.
In May 28 and 30, 2017 hospital reports, Dr. Mahajan diagnosed dysarthria, left hemiparesis,
intractable migraine, malignant hypertensions, encephalopathy seizure versus hypertensive
etiology, cervicalgia, gait ataxia, fibromyalgia, and lupus. He obtained a history of appellant
waking up with a severe headache and problems communicating. In a discharge summary dated
June 12, 2017, Dr. Yang noted that objective tests performed at the hospital had yielded normal
findings. On December 13, 2018 Dr. Mahajan reviewed appellant’s history of losing her voice
and difficulty talking. His diagnoses included a speech abnormality. In a Form CA-17 report,
Dr. Damaj diagnosed dysarthria and degeneration of the cervical spine. None of the physicians in
these reports addressed the cause of the diagnosed dysarthria. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no

8

K.T., supra note 4; G.M., Docket No. 19-0933 (issued October 1, 2019); L.B., Docket No. 18-0533 (issued
August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
9

K.B., Docket No. 17-0682 (issued July 24, 2017).

10

M.S., Docket No. 17-0105 (issued December 7, 2017).

6

probative value on the issue of causal relationship.11 Therefore, this evidence is insufficient to
meet appellant’s burden of proof.12
Dr. La Tourette provided a second opinion examination regarding whether appellant had
residuals or disability due to her October 22, 2011 employment injury, accepted for a contusion of
the face, scalp, and neck, neck sprain, and a temporary aggravation of cervical intervertebral disc
disease with myelopathy. He did not address the question of claim expansion and, thus, his opinion
is not probative on this issue.13
Appellant further submitted the results of diagnostic testing, including MRA and MRI
scans of the brain and head. Diagnostic studies, standing alone, lack probative value on the issue
of causal relationship as they do not address whether the employment injury caused a diagnosed
condition.14 Therefore, these reports are also insufficient to establish appellant’s claim.
The Board finds that appellant has not submitted sufficient rationalized medical evidence
sufficient to establish causal relationship between the accepted October 22, 2011 employment
injury and the claimed additional condition of dysarthria. As such, appellant has not met her
burden of proof to expand acceptance of her claim.15
On appeal counsel contends that OWCP failed to apply the appropriate standard of
causation or give sufficient deference to the findings of appellant’s attending physician. As
discussed, however, she has not submitted a reasoned opinion sufficient to show that her diagnosed
condition of dysarthria was causally related to her accepted employment injury.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to expand acceptance of her
claim to include dysarthria causally related to her October 22, 2011 employment injury.

11

Id.

12

Id.

13

Id.

14

O.M., Docket No .18-1055 (issued April 15, 2020).

15

K.T., supra note 4.

16

See S.O., Docket No. 19-0307 (issued June 18, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Scotch Plains, NJ, Employer
__________________________________________

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

Docket No. 18-0693
Issued: December 7, 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 February 13, 2018 appellant filed a timely appeal from a January 9, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated December 21, 2016, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 15, 2016 appellant, a 27-year-old mail carrier, filed a traumatic injury claim (Form
CA-1) alleging that she sustained a right foot injury at approximately 3:00 p.m. that day when she
was descending steps while in the performance of duty.
In a June 29, 2016 letter, OWCP advised appellant of the deficiencies of her claim and
afforded her 30 days to submit additional evidence and to respond to its inquiries.
In response, appellant submitted a series of physical therapy reports dated May 24 through
July 22, 2016.
Appellant further submitted reports dated July 11 and 18, 2016 from Dr. Richard Schaller,
a Board-certified emergency medicine specialist, who diagnosed acute right ankle pain and acute
pain of right knee.
By decision dated August 10, 2016, OWCP accepted that the June 15, 2016 employment
incident occurred as alleged, but denied the claim because the medical evidence of record was
insufficient to establish causal relationship between appellant’s diagnosed right ankle and right
knee contusions and the accepted June 15, 2016 employment incident.
On October 12, 2016 appellant requested reconsideration and submitted additional medical
evidence in support of her claim, including a September 14, 2016 report from Dr. Liza Rodriguez,
a Board-certified anesthesiologist, who diagnosed right ankle tendinitis and concluded that
appellant was injured after a near fall off stairs while delivering mail.
By decision dated December 21, 2016, OWCP denied modification of its prior decision
because the medical evidence of record was insufficient to establish that appellant’s right ankle
tendinitis was causally related to the accepted June 15, 2016 employment incident.
Appellant requested reconsideration on December 26, 2017 as recorded in the Integrated
Federal Employees’ Compensation System (iFECS).
By decision dated January 9, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).3 One such limitation provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which

2

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

2

review is sought.4 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).5
Section 10.607(b) provides that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To demonstrate clear evidence of error a claimant must submit evidence relevant to the
issue which was decided by OWCP.7 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.12
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s regulations and procedures establish a one-year time
limitation for requesting reconsideration, which begins on the date of the original OWCP
4

20 C.F.R. § 10.607(a).

5

See Jesus D. Sanchez, supra note 2; F.R., Docket No. 09-575 (issued January 4, 2010).

6

20 C.F.R. § 10.607(b).

7

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

8

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

9

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

See Leona N. Travis, 43 ECAB 227, 241 (1991).

11

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

3

decision.14 The Board has held that for OWCP decisions issued on or after August 29, 2011, the
date of the application for reconsideration is the “received date” as recorded in iFECS.15 The most
recent merit decision was OWCP’s December 21, 2016 decision denying appellant’s traumatic
injury claim. Appellant had one year from the date of that decision to make a timely request for
reconsideration. Because appellant’s request was not received by OWCP until December 26,
2017, it was filed outside the one-year time period and is therefore untimely. Consequently,
appellant must demonstrate clear evidence of error by OWCP in the denial of her claim.16
In its December 21, 2016 decision, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed right ankle tendinitis and the accepted June 15, 2016 employment incident.
To demonstrate clear evidence of error, it is not sufficient merely to show that the evidence could
be construed so as to produce a contrary conclusion. The term clear evidence of error is intended
to represent a difficult standard.17 Herein, the Board finds that appellant did not submit additional
evidence along with her untimely request for reconsideration. Without the submission of
additional evidence, appellant has not met her burden of proof to demonstrate clear evidence of
error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

14

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

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
supra note 12.
16

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

17
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (February 2016); see
Dean D. Beets, supra note 7.

4

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 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
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 19-0029
Issued: June 21, 2019

Case Submitted on the Record

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

JURISDICTION
On October 3, 2018 appellant filed a timely appeal from a September 20, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was a June 6, 2018 decision of the Board, which became final 30 days after issuance and
is not subject to further review.1 As there was no merit decision issued by OWCP within 180 days
of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.3

1

20 C.F.R. § 501.6(d ); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued
July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).
2
3

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On November 15, 1995 appellant, then a 38-year-old modified mail processor, filed an
occupational disease claim (Form CA-2) alleging that, on November 6, 1995, she experienced
discomfort in both hands and her right shoulder due to repetitive motions required while casing
mail. At that time, she had an accepted claim for aggravation of chondromalacia of the right knee
in OWCP File No. xxxxxx731, and she was working in a modified sedentary position. Appellant
stopped work on November 9, 1995. On November 13, 1996 OWCP accepted her claim for
bilateral sprain/strain of both hands and wrists and right shoulder. It paid appellant wage-loss
compensation benefits through November 17, 1999. However, on November 18, 1999 OWCP
terminated her wage-loss compensation as she failed to accept an offer of suitable employment.5
On June 10, 2016 appellant filed a claim for compensation (Form CA-7) for the period
April 19, 1997 to June 9, 2016. By decision dated August 23, 2016, OWCP denied her claim for
wage-loss compensation for the claimed period. By decision dated June 29, 2017, an OWCP
hearing representative affirmed OWCP’s decision. She determined that the evidence of record
was insufficient to establish causal relationship between the claimed period of disability and the
accepted work injury.
Appellant appealed to the Board on August 14, 2017. By decision dated June 6, 2018, the
Board affirmed OWCP’s June 29, 2017 decision finding that appellant had not met her burden of
proof to establish that she was disabled for the period August 19, 1997 to June 9, 2016, causally
related to the accepted November 6, 1995 employment injury.6 The Board noted that OWCP
terminated appellant’s wage-loss compensation benefits on November 18, 1999, because she
refused suitable employment.
Appellant requested reconsideration on July 3, 2018. She indicated that she wished to
change her treating physician to Dr. Lawrence Harvey, an internal medicine specialist. Appellant
detailed her history of complaints of severe pain in her hands and right shoulder dating back to
4

Docket No. 17-1761 (issued June 6, 2018).

5
Appellant’s requests that OWCP reconsider the termination were denied. She filed multiple appeals to the Board
and, by decisions dated December 3, 2003, Docket No. 03-1651 (issued December 3, 2003) and October 2, 2012,
Docket No. 12-0471 (issued October 2, 2012) the Board affirmed the denial of appellant’s reconsideration requests as
they were untimely filed and failed to demonstrate clear evidence of error. Appellant’s last request for reconsideration
regarding the suitable work termination was denied by OWCP on April 23, 2015.
6

Id.

2

1995 and noted that she worked until April 1997, when she could no longer move her hands. She
also argued that the employing establishment provided her with offers to return to work based
upon inaccurate and incomplete medical reports. Appellant argued that OWCP committed error,
that her physicians provided detailed medical reports, and attributed her injuries to work at the
employing establishment.
In a report dated September 17, 2003, Dr. Jennifer Cavitt, a Board-certified clinical
neurophysiologist, noted appellant’s history of injury and treatment and advised that her conditions
began in 1995 while working at the employing establishment. She indicated that appellant had a
history of right carpal tunnel syndrome which may be contributing to some of appellant’s
symptoms in the wrist and hand. Dr. Cavitt recommended additional testing and surgery, which
appellant declined.
In a report dated June 8, 2018, Dr. Harvey noted that he was treating appellant for
numerous conditions to include: hypertension, congestive heart failure, chronic kidney disease,
sarcoidosis, polymyalgiarheumatic, osteoarthritis, spondylosis, lumbar radiculopathy, anxiety
disorder, and acid reflux disease.
OWCP received previously submitted reports including a November 17, 1995 report from
Dr. David H. Gillis, specializing in orthopedic surgery; reports from Dr. Errol Stern, a Boardcertified orthopedic surgeon, dated October 1 and November 4, 1997, referring to a work-related
injury on April 19, 1997, and indicating that appellant could perform some type of modified work;
an October 31, 1997 magnetic resonance imaging (MRI) scan of the left shoulder; a July 15, 1997
duty status report (Form CA-17); a June 2, 1998 report from Dr. Daniel G. Reilly, a Boardcertified orthopedic hand surgeon; reports dated March 3, 2006, April 21, 2008, December 14,
2012, and September 14, 2016, from Dr. Michael Pordy, a Board-certified internist, who opined
that appellant was disabled and unable to return to work; a July 25, 2013 electrodiagnostic nerve
conduction study; and records which predated the November 6, 1995 work injury.
By decision dated September 20, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim. It found that her reconsideration request did not raise a
substantive legal error or argument, the medical evidence was irrelevant to the matter at hand and
repetitious, and that she did not submit new and relevant evidence.7
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain

7
The Board notes that OWCP is not authorized to review Board decisions. Board decisions are not subject to
review except by the Board and they become final after 30 days. Although the June 6, 2018 Board decision was the
last merit decision of record, OWCP’s June 29, 2017 merit decision is the appropriate subject of possible modification
by OWCP. See 20 C.F.R. § 501.6(d).
8
This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).

3

limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.10
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration, without
reopening the case for a review on the merits.12
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.13 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.14 When reviewing an
OWCP decision denying 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.15
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.16 The Board also has
held that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a claim.17
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.607.

10
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
11

Id. at § 10.606(b)(3).

12

Id.

13

J.F., Docket No. 17-1508 (issued March 28, 2018).

14

C.F., Docket No. 18-0360 (issued July 19, 2018); Mark H. Dever, 53 ECAB 710 (2002).

15

C.F., id.; Annette Louise, 54 ECAB 783 (2003).

16

See L.R., Docket No. 18-0400 (issued August 24, 2018).

17
See M.E., Docket No. 18-0553 (issued November 5, 2018); S.T., Docket No. 17-0790 (issued May 22, 2018);
M.E., 58 ECAB 694 (2007).

4

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
that was previously considered in the June 6, 2018 decision. Findings made in prior Board
decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.18
The Board notes that the underlying issue in this case is whether appellant met her burden
of proof to establish disability from August 19, 1997 until November 18, 1999.
In her June 18, 2018 request for reconsideration, appellant requested a change of treating
physician, discussed her history of injury, and argued that her work contributed to her condition
and her offers to return to work were based upon inaccurate and incomplete medical reports. She
also argued that her physicians provided detailed medical reports and that OWCP committed error.
Appellant’s previously submitted arguments on reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered by OWCP. The arguments are irrelevant to the medical issue
of whether appellant was disabled during the period April 18, 1997 until her benefits were
terminated on November 18, 1999 for refusal of suitable work19. Consequently, appellant was not
entitled to a review of the merits based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).
The Board further finds that appellant has failed to submit relevant and pertinent new
evidence in support of reconsideration.
The new evidence includes records which predated the November 6, 1995 work injury, a
September 17, 2003 report from Dr. Cavitt, who noted that appellant had a history of right carpal
tunnel syndrome which may be contributing to some of appellant’s symptoms in the wrist and
hand, and a June 8, 2018 report from Dr. Harvey, who noted that he was treating appellant for
numerous nonwork-related conditions. The new evidence is irrelevant because neither physician
offered an opinion that appellant was disabled during the period April 18, 1997 to November 18,
1999 causally related to her accepted November 6, 1995 employment injury. Evidence that fails
to address the underlying issue on reconsideration is insufficient to warrant further merit review.20
OWCP also received copies of previously submitted reports and documents addressed and
evaluated by OWCP and the Board. The Board has held that the submission of evidence which
repeats or duplicates evidence already in the case record does not constitute a basis for reopening
a case.21
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted

18

J.L., Docket No. 17-1460 (issued December 21, 2018).

19

Supra note 17.

20

Id.

21

M.B., Docket No. 17-1980 (issued May 14, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984)

5

a specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2019
Washington, DC

Janice B. Askin, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY, ROICC, SAN
FRANCISCO BAY AREA, Oakland, CA,
Employer
__________________________________________

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

Docket No. 08-1119
Issued: May 13, 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 March 5, 2008 appellant filed a timely appeal of decisions of the Office of Workers’
Compensation Programs dated December 6, 2007 and February 27, 2008.
Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office used the proper pay rate in calculating appellant’s
compensation benefits beginning February 2, 1989; and (2) whether the Office properly refused
to reopen her claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 2, 1989 appellant, then a 33-year-old support services specialist, filed a Form
CA-2, occupational disease claim, alleging that employment factors caused stress-related
illnesses. She also filed a Form CA-7 claim for compensation for intermittent periods beginning
February 2, 1989. At that time appellant was a GS-7, step 6, with an annual salary of

$22,743.00. She received a within grade increase to GS-7, step 7, effective June 4, 1989, with an
annual salary of $23,393.00. Appellant’s leave record for 1989 indicates that her last day at
work was September 27, 1989. She did not return to work. On March 1, 1990 the Office
accepted that appellant sustained employment-related depression. Appellant was placed on the
periodic rolls, effective September 29, 1989, based on the February 2, 1989 pay rate of
$22,743.00.
By letter dated December 1, 2001, appellant stated that her benefits should be
recalculated because she received a step increase in June 1989. In a December 31, 2001
response, the Office informed appellant that her pay rate was correctly based on the February 2,
1989 pay rate, the date disability began.
By decision dated May 17, 2006, the Office terminated appellant’s compensation benefits
on the grounds that her treating physician, Dr. Charles Covert, a Board-certified psychiatrist,
advised that she no longer had residuals or psychiatric work restrictions.1
By letter dated September 24, 2007, appellant contended that she had been paid at an
incorrect pay rate because she received a within grade increase from GS-7, step 6 to GS-7, step 7
on June 4, 1989. She attached the December 2001 correspondence and SF-50, notification of
personnel action, forms showing that on June 4, 1989 she received a within grade increase from a
step 6 to a step 7 and on January 13, 1991 a locality pay increase.
By letter dated September 24, 2007, the employing establishment noted the above pay
adjustments and advised that a Form CA-7 claim form was attached.2 On October 12, 2007 the
Office referred appellant to its December 31, 2001 correspondence regarding the effective pay
rate, and advised her that her wage-loss compensation was based on the correct pay rate. On
October 25, 2007 appellant requested that the Office issue a formal decision on the matter of her
pay rate. In an October 26, 2007 letter, she again requested that her compensation be adjusted.
Appellant provided a list of days missed from work from February 2 through
September 27, 1989.
In a December 6, 2007 decision, the Office found that the February 2, 1989 pay rate used
to compute appellant’s compensation benefits was correct and denied her claim for a
compensation adjustment.
On December 13, 2007 appellant requested reconsideration, arguing that her pay should
be adjusted. By decision dated February 27, 2008, the Office denied her reconsideration request.

1

Appellant pursued numerous reconsideration requests regarding the termination before the Office and currently
has an appeal before the Board on that issue. That appeal, Docket No. 08-1242, will be adjudicated separately.
2

The CA-7 claim form is not found in the case record.

2

LEGAL PRECEDENT
Section 8101(4) of the Federal Employees’ Compensation Act3 defines “monthly pay”
for purposes of computing compensation benefits as follows: the monthly pay at the time of
injury or the monthly pay at the time disability begins or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is greater.4
In an occupational disease claim, the date of injury is the date of last exposure to the employment
factors which caused or aggravated the claimed condition.5
ANALYSIS
The Board finds that the Office erred in determining the effective pay rate for
compensation purposes. The Office used the pay rate in effect on February 2, 1989, the date
appellant began losing time for her accepted emotional condition, which was the date disability
began. Since appellant only worked intermittently, until she stopped work in September 1989,
she did not work at her regular job for a period of six months after February 2, 1989. She would
therefore not be entitled to a recurrent pay rate.6 Therefore, the proper pay rate would be either
the date of injury or the date disability began.
The record supports appellant worked sporadically after February 2, 1989. She continued
to perform her regular job duties in her regular position.7 Appellant therefore continued to be
exposed to the employment factors that were accepted by the Office as causing her employmentrelated depression. The date of injury is the date of the last exposure that adversely affects the
condition because every exposure that has an adverse effect (an aggravation) constitutes an
injury.8 Appellant’s leave records show that the date of last exposure was September 27, 1989
which would be the date of injury. As she received a within grade increase from GS-7, step 6 to
GS-7, step 7 effective June 4, 1989, her pay rate for compensation purposes should have been
based on the GS-7, step 7 salary or $23,393.00, as it was greater than the step 6 salary of
$22,743.00. In applying section 8101(4), the statute requires the Office to determine monthly

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8101(4); see Dale Mackelprang, 57 ECAB 168 (2005).

5

R.S., 58 ECAB ____ (Docket No. 06-1346, issued February 16, 2007).

6

A recurrent pay rate applies only if the work stoppage began more than six months after a return to regular fulltime employment. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates,
Chapter 2.900.5a(4) (December 1995).
7

An accepted factor of employment was that appellant was harassed by her supervisor.

8

Patricia K. Cummings, 53 ECAB 623 (2002). The Board’s analysis in a schedule award situation appears
equally applicable in a claim of occupational disease for a condition produced over a period longer than a single
workday or shift. See 20 C.F.R. § 10.5(q).

3

pay by determining the date of the greater pay rate.9 The case will be remanded to the Office to
recalculate appellant’s compensation as of September 27, 1989.10
CONCLUSION
The Board finds that the Office improperly calculated appellant’s pay rate for
compensation purposes.11
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 27, 2008 and December 6, 2007 be vacated and the case
remanded to the Office for proceedings consistent with this opinion of the Board.
Issued: May 13, 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

9

Supra note 4.

10

Appellant, however, would not be entitled to a pay rate based on the January 13, 1991 pay increase because she
stopped work in 1989. There is no provision which entitles a claimant to receive additional compensation for grade
and step increases which the employee might have received if he or she had remained in his or her position with the
employing establishment and the probability that an employee, if not for a work-related condition, might have had
greater earnings is not proof of a loss of wage-earning capacity and does not afford a basis for payment of
compensation. E.G., 59 ECAB ___ (Docket No. 07-1562, issued July 2, 2008).
11

As the Board is remanding the case based on the first issue, the second issue is moot.

4