United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, CUSTOMER CARE
CENTER, Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0205
Issued: July 23, 2018

Case Submitted on the Record

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

JURISDICTION
On January 27, 2017 appellant filed a timely appeal from an October 12, 2016 merit
decision and a November 18, 2016 nonmerit 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 to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $66,806.68 for the period August 21, 2014 to June 25, 2016 as she continued to receive
compensation after her wage-loss compensation was reduced to zero; (2) whether OWCP properly
found that appellant was at fault in creation of the overpayment and therefore not subject to waiver
of recovery of the overpayment; and (3) 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 July 17, 2009 appellant, then a 45-year-old call center agent (modified), filed a
recurrence (Form CA-2a) claiming a recurrence of disability commencing July 13, 2009.2 OWCP
developed the claim as a new injury because appellant described new work factors such as
repetitive reaching and use of her hands which allegedly caused her disability. On December 2,
2013 OWCP accepted the claim for bilateral carpal tunnel syndrome and left ulnar nerve lesion.
It paid appellant wage-loss compensation benefits beginning July 13, 2009, and paid benefits on
the periodic rolls, effective July 27, 2014.3
On May 27, 2014 OWCP referred appellant for vocational rehabilitation services based on
the October 29, 2013 findings of Dr. Gary J. La Tourette, a second opinion Board-certified
orthopedic surgeon. Dr. La Tourette reported that it was doubtful that appellant could perform the
duties of a modified call center agent due to the repetitive wrist and elbow movements required by
that position. However, he opined that appellant was capable of performing sedentary work
including up to six hours of pushing and pulling up to 20 pounds, and up to six hours of lifting up
to 10 pounds.
On June 18, 2014 OWCP authorized a functional capacity evaluation (FCE) to obtain
clarification of appellant’s work capabilities/restrictions.
On June 27, 2014 an FCE was conducted by Doug Ellis, a physical therapist. Mr. Ellis
determined that appellant had completed the FCE; however, the FCE was invalid/unreliable due
to inconsistencies in appellant’s performance such as self-limiting pain behaviors and probable
less than maximum effort. He also related that appellant’s permanent work restrictions should
therefore be based upon objective findings only. Mr. Ellis reported numerous tests results and
related that a variety of results indicated “probable” less than maximum effort. He concluded that
appellant’s results from his assessment, may for a variety of factors, be less than what was required
for a safe return to work.
In a July 3, 2014 letter, OWCP advised appellant that the June 27, 2014 FCE results were
considered invalid due to inconsistencies in her performance and self-limiting pain behavior during
the testing. It noted that pursuant to 5 U.S.C. § 8113(b), if an individual without good cause fails
to apply for and undergo vocational rehabilitation when so directed, and OWCP finds that in the
absence of the failure the individual’s wage-earning capacity would probably have substantially
increased, it may reduce prospectively the compensation based on what probably would have been
the individual’s wage-earning capacity had she not failed to apply for and undergo vocational
rehabilitation. OWCP further stated:
“Also, [s]ection 10.519 of Title 20 of the Code of Federal Regulations provide that
if an individual without good cause fails or refuses to participate in the essential
preparatory efforts as described above, OWCP will assume, in the absence of
2

The present claim was assigned OWCP File No. xxxxxx900. Appellant had previously filed an occupational
disease claim (Form CA-2), assigned OWCP File No. xxxxxx994, which was accepted on July 12, 2005 for
aggravation of cervical degenerative disc disease and brachial neuritis/radiculitis. On May 16, 2014 OWCP
administratively combined File Nos. xxxxxx994 and xxxxxx900, with the latter file designated as the master file.
3

Appellant was approved by OPM for disability retirement by letter dated September 10, 2010.

2

evidence to the contrary, that the vocational rehabilitation effort would have
resulted in a return to work with no loss of wage-earning capacity, and
compensation will be reduced accordingly. In effect, this will result in a reduction
of compensation to zero.”
It afforded appellant 30 days to contact the vocational rehabilitation counselor to make a good
effort to participate in the rehabilitation effort or to provide good reasons for noncompliance.
On July 17, 2014 Mr. Ellis conducted a repeat FCE. Once again, he found the results
unreliable and invalid due to continuing self-limiting pain behavior and probability of less than
maximum effort. Mr. Ellis noted that appellant related continued symptoms and that she had
increased symptoms for three days following the initial FCE evaluation. He related that prior to
the start of the second evaluation he reviewed the prior testing and discussed specific examples of
inconsistencies. Mr. Ellis related that appellant was encouraged to participate to the best of her
ability. He again concluded that “the results identified in today’s assessment may, for a variety of
factors, be less than which is a safe return to work level for this client.”
On a July 21, 2014 Rehabilitation Action Report (Form OWCP-44), the rehabilitation
counselor advised that the July 17, 2014 FCE was determined to be invalid/unreliable as there were
inconsistencies in appellant’s performance.
Based on appellant’s performance on the June 27 and July 17, 2014 FCEs, OWCP
suspended its vocational rehabilitation efforts on August 19, 2014.
By decision dated August 21, 2014, OWCP finalized the reduction of compensation to
zero, effective that date under 5 U.S.C. § 8113(b) on the basis that appellant did not fully cooperate
with the FCEs performed on June 27 and on July 17, 2014.
OWCP, by letter dated July 19, 2016, notified appellant of its preliminary determination
that she received an overpayment of compensation in the amount of $66,806.68 as her
compensation has been reduced to zero on August 21, 2014, but she continued to receive wageloss compensation until June 25, 2016. It further advised her of its preliminary determination that
she was at fault in the creation of the overpayment because she accepted a payment that she knew
or reasonably should have known was incorrect. OWCP requested that appellant complete the
enclosed overpayment recovery questionnaire and submit supporting financial documentation.
Additionally, it notified her that, within 30 days of the date of the letter, she could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
On August 23, 2016 appellant requested reconsideration of OWCP’s August 21, 2014
decision.
By decision dated October 12, 2016, OWCP finalized its preliminary overpayment
determination finding that appellant received an overpayment of compensation in the amount of
$66,806.68 for the period August 21, 2014 to June 25, 2016, because she continued to receive
wage-loss compensation after her compensation had been reduced to zero for failure to cooperate
with the early stages of vocational rehabilitation. It found that she was at fault in the creation of
the overpayment as she knew or reasonably should have known that she was not entitled to wageloss compensation. OWCP further noted that appellant had elected to receive compensation
benefits from OPM retroactively to August 21, 2014.
3

By decision dated November18, 2016, OWCP determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error with respect
to the August 21, 2014 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 Section 8113(b) of FECA provides that if
an individual, without good cause, fails to apply for and undergo vocational rehabilitation when
so directed under section 8104 of FECA, OWCP, after finding that in the absence of the failure
the wage-earning capacity of the individual would probably have substantially increased, may
reduce prospectively the monetary compensation of the individual in accordance with what would
probably have been his or her wage-earning capacity in the absence of the failure, until the
individual in good faith complies with the direction of OWCP.5
Section 10.519 of OWCP’s regulations provides that if an employee without good cause
fails or refused to apply for, undergo, participate in, or continue to participate in a vocational
rehabilitation effort when so directed, OWCP will act as follows:
“(b) Where a suitable job has not been identified, because the failure or refusal
occurred in the early but necessary stages of a vocational rehabilitation effort (that
is, meeting with OWCP’s nurses, interviews, testing, counseling, functional
capacity evaluations, and work evaluations), OWCP cannot determine what would
have been the employee’s wage-earning capacity.
“(c) Under the circumstances identified in paragraph (b) of this section, in the
absence of evidence to the contrary, OWCP will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity, and OWCP will reduce the employee’s monetary compensation
accordingly (that is, to zero). This reduction will remain in effect until such time
as the employee acts in good faith to comply with the direction of OWCP.”6
OWCP procedures provide that specific instances of noncooperation during the plan
development stage include: failure to appear for the initial interview; failure to attend meetings
with the rehabilitation counselor; failure to undergo an FCE, including failure to put forth optimum
effort during the FCE; failure to undergo vocational testing and other work evaluations, including
lack of response or inappropriate response to directions during testing; and failure to respond to
the rehabilitation counselor’s telephone calls or written notices.7

4

See R.D., Docket No. 16-0936 (issued April 20, 2017); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

5 U.S.C. § 8113(b).

6

20 C.F.R. § 10.519.

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17(b)
(February 2011); see Sam S. Wright, 56 ECAB 358 (2005).

4

ANALYSIS -- ISSUE 1
The overpayment of compensation in this case was based on OWCP’s August 21, 2014
decision reducing appellant’s compensation to zero based on her failure to undergo the essential
preparatory effort of vocational testing. The Board must review the underlying decision to
determine whether an overpayment was established.8
The Board finds that OWCP improperly reduced appellant’s compensation to zero for
failing, without good cause, to participate in the vocational rehabilitation efforts.
OWCP accepted that appellant had employment-related conditions of aggravation of
cervical degenerative disc disease, brachial neuritis/radiculitis, bilateral carpal tunnel syndrome
and left ulnar nerve lesion. It paid appellant wage-loss compensation beginning July 13, 2009,
and placed her on the periodic rolls, effective July 27, 2014.
The record reflects that, on May 27, 2014, OWCP referred appellant for vocational
rehabilitation services to assist her in returning to gainful employment within her medical
limitations. As part of the vocational rehabilitation process, appellant was directed to attend and
fully participate in an FCE on June 27, 2014. Although she attended the examination, physical
therapist Mr. Ellis’ report reflected that she provided inconsistent responses and failed to
demonstrate maximum effort. He concluded that the evaluation was unreliable and invalid.
Appellant was notified that her failure to cooperate without good cause was reason to
reduce her compensation benefits. She was directed to attend and fully participate in a second
FCE scheduled for July 17, 2014. The second FCE was scheduled with the same physical
therapist, Mr. Ellis, who had found her effort was less than maximum. Appellant again attended
and completed the evaluation, but using substantially similar language from the first FCE, Mr. Ellis
again reported that he was unable to accurately assess her full work capacity due to inconsistencies
in her test responses and less than maximum effort.
The Board finds that the second FCE is virtually identical to the first one in both format
and results. It is therefore of diminished reliability. To avoid the appearance of a predisposition
for any result, and to obtain a fair and impartial reporting, given the facts of this case the second
FCE should have been scheduled with an independent physical therapist or other medical
professional not already affiliated with the case to perform the second FCE.9
As such, the Board finds that OWCP improperly reduced appellant’s compensation
benefits to zero, for failure to cooperate in vocational rehabilitation, based on the June 27, 2014
FCE report. OWCP based the fact of overpayment on the reduction of appellant’s compensation
to zero for failing to cooperate in vocational rehabilitation. The Board finds that as OWCP
improperly reduced appellant’s compensation to zero, the fact of overpayment has not been
established. In view of the Board’s finding, the remaining two issues are moot.

8

See C.P., Docket No. 14-1316 (issued November 6, 2014); Russell E. Wageneck, 46 ECAB 653 (1995).

9
See R.D., Docket No. 16-0936 (issued April 20, 2017); see also Y.C., Docket No. 15-1442 (issued
October 3, 2016).

5

CONCLUSION
Fact of overpayment has not been established in this case as OWCP improperly reduced
appellant’s compensation to zero for failing to cooperate in vocational rehabilitation.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 18 and October 12, 2016 are reversed.
Issued: July 23, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tujunga, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1193
Issued: August 16, 2017

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 May 10, 2017 appellant, through counsel, filed a timely appeal from an April 7, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from OWCP’s last merit decision, dated January 21, 2016, to 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 over the merits of the claim.3
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
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its April 7, 2017 decision.
However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued
its final decision. Thus, it is precluded from reviewing this additional evidence for the first time on appeal.
20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 5, 2012 appellant, then a 53-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an occupational disease of his right
shoulder due to sorting and delivering mail, lifting mail trays, and carrying a mailbag on his right
shoulder over time. OWCP accepted that he sustained a partial right rotator cuff tear. Appellant
stopped work on July 17, 2014 and received wage-loss compensation on the daily roll beginning
July 17, 2014.
OWCP had previously accepted that appellant sustained several other work-related
conditions, including right wrist and hand (metacarpophalangeal joint) sprains sustained on
February 3, 1998 (File No. xxxxxx156), plantar fibromatosis of the right foot sustained as of
August 2, 1999 (File No. xxxxxx175), synovitis/tenosynovitis of the left leg and medial
meniscus tear of the left knee sustained as of February 17, 2004 (File No. xxxxxx575), and a dog
bite of the right leg sustained on February 17, 2004 (File No. xxxxxx590).
In an August 28, 2014 report, Dr. Daniel Kharazzi, an attending Board-certified
orthopedic surgeon, diagnosed several right shoulder conditions, including impingement,
acromioclavicular joint degeneration, partial rotator cuff tear, and superior labrum tear from
anterior to posterior. He indicated that appellant could not push or pull with his right arm, lift
more than five pounds, or perform overhead work with his right arm.
On September 8, 2014 the employing establishment offered appellant a full-time position
as a customer care agent in Agua Dulce, California. The position involved communicating with
customers through telephone calls, e-mails, and online chats, and responding to their inquiries
about postal products and services. The physical requirements of the position included walking
continuously/intermittently for five hours per day and lifting up to five pounds. The position did
not require overhead lifting, pushing, or pulling with the right arm, and it allowed the employee
to type and use a computer mouse at his or her own speed. The position permitted alternating
between sitting and standing as needed for comfort and the employee would use a headset to
answer telephone calls.
Appellant signed the job offer on September 19, 2014 noting, “I accept with protest.” In
a September 20, 2014 statement, he explained that he accepted the customer care agent position
with protest because the position required him to change from the carrier craft to the clerk craft,
travel 55 miles from his home to get to work, change his start time from 7:30 a.m. to 10:05 a.m.,
and change his rotating day off. Appellant also noted that he was not permanent and stationary
with respect to his medical condition because he was awaiting surgery on his right shoulder.
On October 20, 2014 Dr. Kharazzi performed an OWCP-authorized arthroscopic
decompression, acromioplasty, and bursectomy surgery of appellant’s right shoulder. The

2

employing establishment advised that appellant failed to report for work on October 20, 2014 in
the customer care agent position.4
On December 23, 2014 and March 16, 2015 OWCP requested that Dr. Kharazzi submit a
report describing appellant’s current medical condition and providing an assessment of his ability
to work.
On March 19, 2015 appellant underwent a functional capacity evaluation (FCE) which
showed that he was capable of occasionally lifting and carrying up to 35 pounds, pushing up to
61 pounds, and pulling up to 52 pounds.
In June 2015, an employing establishment official advised OWCP that appellant had
retired effective April 30, 2015 that he and continued to receive FECA benefits after that date.
Due to lack of a sufficient response from Dr. Kharazzi, OWCP referred appellant to
Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, for a second opinion examination and
opinion on his ability to work. It provided Dr. Ha’Eri with a recent statement of accepted facts
which delineated all of appellant’s accepted work-related conditions and also provided him with
a description of the customer care agent position offered by the employing establishment.
In a July 24, 2015 report, Dr. Ha’Eri reported the findings of the physical examination he
conducted on that date and diagnosed right shoulder degenerative rotator cuff tendinitis
(temporarily aggravated by work duties) and status post arthroscopic impingement release of the
right shoulder. He advised that he had reviewed the results of appellant’s March 19, 2015 FCE
and opined that appellant could work as a customer care agent, but not as a mail carrier. In a
July 14, 2015 form entitled Work Capacity Evaluation (Form OWCP-5c), Dr. Ha’Eri indicated
that appellant could work eight hours with restrictions, including lifting, pushing, and pulling no
more than 20 pounds (three hours per day for each action), reaching above shoulder level with
his right arm for no more than one hour per day, and operating a motor vehicle at work for no
more than two hours per day.
In September 2015, OWCP received a July 13, 2015 report from Dr. Kharazzi who
indicated that appellant could work with restrictions of lifting up to 25 pounds, no forceful
pushing or pulling, and no repetitive overhead work with his right arm.
On October 28, 2015 the employing establishment advised OWCP that the customer care
agent position was still available to appellant.
In an October 28, 2015 letter, OWCP advised appellant that the customer care agent
position offered by the employing establishment on September 8, 2014 was deemed to be
suitable and advised him that his entitlement to wage-loss compensation and schedule award
benefits could be terminated under 5 U.S.C. § 8106(c)(2) if he failed to accept suitable work
without good cause. It discussed the reasons he provided in his September 20, 2014 letter for his
failure to report to the position and advised him that these reasons were not considered valid.
OWCP indicated that the medical evidence showed that appellant was now capable of
4

On October 19, 2014 appellant began receiving wage-loss compensation on the periodic roll.

3

performing the physical duties of the position and noted, “Please note that even if you are retired,
that is not a valid reason for refusing a suitable offer of employment. You are expected to accept
the offered position and return to work if medically capable.” It provided appellant 30 days to
accept the customer care agent position offered by the employing establishment or provide good
cause for not doing so.
Appellant submitted a letter to OWCP in which he noted that he continued to receive
FECA benefits, but that he intended to collect retirement benefits after his FECA benefits ceased.
He also submitted a July 19, 2015 letter in which the Office of Personnel Management (OPM)
advised him that his Civil Service Retirement System (CSRS) or Federal Employees Retirement
System (FERS) annuity would be suspended while he was receiving FECA benefits, but that he
could receive CSRS or FERS benefits if his FECA compensation ended.
On December 14, 2015 the employing establishment advised OWCP that the customer
care agent position was still available to appellant.
In a December 14, 2015 letter, OWCP again informed appellant that all the reasons he
provided for refusing the customer care agent position were invalid. It discussed the documents
that he had submitted regarding his retirement. OWCP advised appellant that he had 15 days to
accept the customer care agent position offered by the employing establishment and indicated
that his entitlement to wage-loss compensation and schedule award benefits would be terminated
if he failed to report to the position within the allotted period. Appellant did not accept the
customer care agent position within the allotted period.
On January 21, 2016 the employing establishment advised OWCP that the customer care
agent position was still available to appellant.
In a January 21, 2016 decision, OWCP terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits effective January 21, 2016 due to his refusal of
suitable work without good cause pursuant to 5 U.S.C. § 8106(c)(2).
In a letter dated and received on January 17, 2017, appellant, through counsel, requested
reconsideration of OWCP’s January 21, 2016 decision. Counsel argued that appellant provided a
valid reason for refusing the customer care agent position as he had informed OWCP that he was
receiving disability retirement benefits. He asserted that OWCP never informed appellant that
retirement was not a valid excuse for refusing a suitable job offer and that it did not cite a statute,
rule, or regulation that “disqualified [appellant’s] excuse.” Counsel alleged that the employing
establishment was disingenuous when it offered appellant the customer care agent position
because it had already certified to OPM that it could not accommodate appellant’s impairment.
He asserted that appellant could not have received FERS benefits unless the employing
establishment had certified to OPM that it could not accommodate appellant with a job due to his
impairment.
In an April 7, 2017 decision, OWCP denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that, although his reconsideration
request was timely, the argument he submitted through counsel did not constitute new and
relevant argument or evidence requiring reopening of his claim for reconsideration of the merits.

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 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.7 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.8 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.9
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record10 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.11
ANALYSIS
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his application for reconsideration, he did not show that OWCP erroneously applied or
interpreted a specific point of law. Appellant also did not identify a specific point of law or
show that it was erroneously applied or interpreted, nor did he advance a new and relevant legal
argument not previously considered by OWCP. The underlying issue in this case was whether
OWCP properly terminated his entitlement to wage-loss and schedule award compensation,
effective January 21, 2016, due to his refusal of suitable work without good cause, pursuant to 5
U.S.C. § 8106(c)(2).

5

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).
6

20 C.F.R. § 10.607.

7

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.
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(a), (b).

10

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

11

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

5

A claimant may also be entitled to a merit review by submitting relevant and pertinent
new evidence, but the Board finds that appellant has not submitted any such evidence in this
case. In support of appellant’s reconsideration request, counsel argued that appellant provided a
valid reason for refusing the customer care agent position because he informed OWCP about the
postretirement benefits he was receiving. He asserted that OWCP never informed appellant that
retirement was not a valid excuse for refusing a suitable job offer and that it did not cite a statute,
rule, or regulation that “disqualified [appellant’s] excuse.”
These arguments would not require reopening of appellant’s claim for reconsideration on
the merits because counsel’s contentions are repetitive of arguments addressed by OWCP in its
January 21, 2016 decision.12
Counsel further alleged that the employing establishment was disingenuous when it
offered appellant the customer care agent position because it had already certified to OPM that it
could not accommodate appellant’s impairment and that he could not have received FERS
benefits unless the employing establishment had certified to OPM that it could not accommodate
him with a job due to his impairment. However, these arguments merely relate to appellant’s
concerns about postretirement benefits and counsel has not adequately explained how they are
relevant to the issue of the present case, i.e., termination of entitlement to compensation under 5
U.S.C. § 8106(c)(2) due to failure to accept suitable work. As noted above, submission of
evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.13
The Board accordingly finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

12

See supra note 10.

13

See supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the April 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2017
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Lafayette, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Donald L. Mayeux, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2133
Issued: April 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 19, 2013 appellant, through her attorney, filed a timely appeal from an
April 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a left shoulder or left wrist
condition in the performance of duty.
FACTUAL HISTORY
On August 9, 2012 appellant, a 52-year-old security officer, filed a Form CA-2 claim for
benefits, alleging that she developed a tendinitis condition causally related to employment
1

5 U.S.C. § 8101 et seq.

factors. She first became aware of her condition on July 17, 2012 and first realized that it was
related to her employment on July 24, 2012.
On August 17, 2012 OWCP advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked her
to submit a comprehensive report from a treating physician describing her symptoms, the
medical reasons for her condition, and an opinion as to whether her claimed condition was
causally related to her federal employment. OWCP requested that appellant submit the evidence
within 30 days.
By decision dated October 16, 2012, OWCP denied the claim, finding that appellant
failed to establish fact of injury. It advised that she had described work duties which allegedly
resulted in a tendinitis condition but did not specify the part of the body that had been injured.
OWCP further found that she did not provide any medical evidence to support a medical
condition causally related to employment factors.
In reports dated August 6, 2012, received by OWCP on October 25, 2012, Dr. Phillip
Bacilla, an orthopedic surgeon, listed a history that appellant had been experiencing problems
with her left shoulder and left wrist for approximately three weeks. He advised that she
performed lifting at work and had experienced pain in her left shoulder when she elevated her
arm. Appellant also had pain in her left wrist, with redness and swelling on the dorsum of her
hand and wrist. On examination her left shoulder had 110 to 120 degrees of elevation, which
was painful, and pain with Hawkins’ testing. On examination of her left wrist, she demonstrated
tenderness and swelling of the dorsum into her distal forearm and pain with finger flexion and
extension. Dr. Bacilla diagnosed rotator cuff tendinitis in her left shoulder, with a possible tear,
and tenosynovitis of her left wrist. He was not sure as to the etiology of her left wrist pain.
Dr. Bacilla stated that x-rays of her left shoulder revealed a Type 3 acromion with some
significant spur formation but x-rays of her wrist showed no abnormalities. He recommended
that she refrain from using her left upper extremity and imposed a restriction on lifting no more
than 10 pounds. Dr. Bacilla advised that he would schedule appellant for a magnetic resonance
imaging (MRI) scan of her left shoulder and wrist if her condition did not improve.
On August 27, 2012 Dr. Bacilla stated that appellant had undergone an MRI scan of her
left wrist which was consistent with fourth dorsal compartment tenosynovitis. The MRI scan of
the left shoulder showed a high-grade partial thickness bursal-sided tear of the supraspinatus
with subacromial fluid and some tendinosis; he also noted an intratendinous cyst at the
myotendinous junction of the infraspinatus. Dr. Bacilla prescribed therapy for her left wrist and
left shoulder and released her to light duty with a restriction on using her left arm.
In a September 24, 2012 report, Dr. Bacilla advised that physical therapy and injections
in her left shoulder had not improved her pain, which was significant. He recommended rotator
cuff repair surgery with decompression. With regard to the left wrist, Dr. Bacilla indicated that
he would refer her to Dr. Gary Porubsky, a specialist in orthopedic hand surgery, for further
evaluation and treatment.
In a report dated October 1, 2012, Dr. Porubsky related that appellant’s symptoms began
in July 2012 although she could not recall a single episode of injury. Appellant’s work duties

2

included lifting heavy bags, placing them in an x-ray scanner for luggage and patting down
passengers. Dr. Porubsky noted that she received injections in her left wrist in July 2012 but did
not obtain any relief. On examination of the left wrist, he noted some soft tissue swelling which
appeared to be distal to the fourth dorsal compartment and tenderness to palpation of the soft
tissue in the area of the second, third, and fourth dorsal compartments of the wrist. Dr. Porubsky
advised that the range of motion in the left wrist showed 55 degrees of dorsiflexion, 55 degrees
of palmar flexion, 20 degrees of radial deviation and 35 degrees of ulnar deviation. He stated
that radiographic tests of the left wrist were unremarkable. Dr. Porubsky diagnosed
tenosynovitis possibly involving the second and third and at least the fourth dorsal
compartments. He recommended that she be examined and evaluated by a rheumatologist in
order to determine whether a rheumatological process caused her current, underlying symptoms.
On November 14, 2012 appellant requested an oral hearing, which was held on
March 1, 2013.
In a March 13, 2013 report, Dr. Bacilla related that he was treating appellant for left
shoulder pain for which she underwent surgery on December 20, 2012. He advised that she still
experienced significant weakness in her left arm. Dr. Bacilla instructed her to remain out of
work until her next appointment on April 17, 2013.
By decision dated April 24, 2013, an OWCP hearing representative accepted that
appellant performed repetitive duties with her left upper extremity. He found, however, that she
failed to submit sufficient medical evidence to establish a left shoulder or left wrist condition
causally related to her work as a security officer.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
2

5 U.S.C. §§ 8101-8193.

3

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

4

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

3

employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed bilateral carpal tunnel condition
and his federal employment. This burden includes providing medical evidence from a physician
who concludes that the disabling condition is causally related to employment factors and
supports that conclusion with sound medical reasoning.6
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish
that her left shoulder or left wrist conditions are causally related to factors of her federal
employment. For this reason, she did not discharge her burden of proof.
With regard to her claimed left shoulder condition, Dr. Bacilla diagnosed rotator cuff
tendinitis, rotator cuff tear and related findings of chronic left shoulder pain. He did not provide
a rationalized medical opinion addressing how the claimed left shoulder condition or disability
was causally related to her employment factors. Dr. Bacilla noted that appellant experienced
problems with her left shoulder for approximately three weeks and that she lifted items at work
and experienced pain in her left shoulder when she elevated her arm. Dr. Bacilla diagnosed
rotator cuff tendinitis in her left shoulder, with a possible tear, and stated that x-rays of her left
shoulder revealed a Type 3 acromion with some significant spur formation and x-rays of her
wrist showed no abnormalities. He imposed a restriction on lifting exceeding 10 pounds and
advised her not to use her left upper extremity. Dr. Bacilla advised that a left shoulder MRI scan
showed a high-grade partial thickness bursal-sided tear of the supraspinatus with subacromial
fluid and some tendinosis. He prescribed therapy and injections to ameliorate the left shoulder
pain and released her to light duty with a restriction on using her left arm. Dr. Bacilla indicated
in his March 13, 2013 report that he was still treating appellant for left shoulder pain and
indicated that she underwent rotator cuff repair surgery on December 20, 2012.
The reports of Dr. Bacilla are of limited probative value as he did not provide adequate
medical rationale as to why appellant’s condition was related to lifting in her employment.7 The
5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

William C. Thomas, 45 ECAB 591 (1994).

4

weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.8 Dr. Bacilla’s reports described his treatment of appellant for a
chronic left shoulder condition. He prescribed physical therapy, injections and performed rotator
cuff repair surgery to ameliorate this condition. Dr. Bacilla did not sufficiently describe
appellant’s job duties or explain the medical process by which such duties were competent to
cause the claimed left shoulder condition.
Appellant also submitted reports from Drs. Bacilla and Porubsky in support of her left
wrist claim. Dr. Bacilla advised that appellant had experienced pain, tenderness and swelling in
her left wrist. He diagnosed left wrist tenosynovitis but stated that he was not sure as to the
etiology of her pain. Dr. Bacilla referred appellant to Dr. Porubsky, who advised in an
October 2012 report that while she reported her symptoms began in July 2012 she could not
recall a single episode of injury. He advised that her work duties included lifting heavy bags,
placing them in an x-ray scanner for luggage and patting down passengers. Dr. Bacilla did not
address how such duties were sufficient to cause the left wrist tenosynovitis. Dr. Porubsky noted
some soft tissue swelling on examination which was distal to the fourth dorsal compartment and
tenderness to palpation of the soft tissue in the area of the second, third, and fourth dorsal wrist
compartments; he also stated that she had some limited range of motion of the wrist, with pain
and tenderness. He advised that radiographic tests of the left wrist were normal. Dr. Porubsky
concurred with the diagnosis of tenosynovitis, possibly involving the second and third and at
least the fourth dorsal compartments, and recommended evaluation by a rheumatologist to
determine whether her symptoms were caused by a rheumatological process.
The opinions of Drs. Bacilla and Porubsky are of diminished probative value. The
physicians did not provide sufficient rationale explaining how appellant’s job duties caused the
tenosynovitis to her left wrist. Dr. Bacilla’s opinion on causation is of limited probative value
for the further reason that it is generalized in nature and equivocal. He stated that he was unsure
as to the etiology of appellant’s left wrist pain. While both physicians indicated that appellant
had experienced chronic left wrist pain since July 2012, they did not explain how appellant’s
work duties were competent to cause the diagnosed condition. Drs. Bacilla and Porubsky did not
provide adequate medical evidence to establish that appellant’s claimed left wrist condition was
causally related to her employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however,
appellant failed to submit such evidence. Consequently, she has not met her burden of proof.
8

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

9

Id.

5

OWCP properly found that appellant did not establish that the conditions arose in the
performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
claimed left shoulder and left wrist conditions were sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: April 2, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-382
Issued: May 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2014 appellant, through counsel, filed a timely appeal from a
September 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
reimbursement of travel expenses for October 15, 2012.
FACTUAL HISTORY
On May 4, 2002 appellant, then a 38-year-old rural carrier, sustained multiple injuries as
a result of a motor vehicle accident. OWCP accepted the claim for contusions of the left lower
limb and hip; injury to the sciatic nerve; displacement of a lumbar intervertebral disc without
1

5 U.S.C. § 8101 et seq.

myelopathy; a cervical herniated disc at C6-7; C6-7 discectomy and bilateral chondromalacia of
patellae. Appellant did not return to work and OWCP authorized treatment for his injuries.
On August 15, 2013 appellant requested mileage reimbursement for travel to a medical
appointment on October 15, 2012.
By letter dated August 16, 2013, OWCP informed appellant that it had received his
request for authorization of mileage reimbursement. It noted that the file did not contain any
medical reports for treatment on October 15, 2012 and June 27, 2013. OWCP requested that
appellant submit copies of medical records for those dates to be considered for authorization of
payment.2
In support of his claim, appellant submitted a June 27, 2013 medical report from
Dr. Keith Walker Michael, a treating physician. No medical records were received documenting
treatment on October 15, 2012.
By decision dated September 23, 2013, OWCP denied appellant’s request for
reimbursement of travel on October 15, 2012. It noted that no evidence was received relevant to
treatment on October 15, 2012 to support reimbursement of travel. OWCP authorized travel on
June 27, 2013 as a medical report pertaining to that date was submitted.
LEGAL PRECEDENT
Medical expenses, along with transportation and other expenses incidental to securing
medical care, are covered by section 8103 of FECA. This section 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 or recommended by a qualified physician, which OWCP
considers likely to cure, give relief, reduce the degree of the period of disability or aid in
lessening the amount of monthly compensation.3 Section 10.315 of Title 20 of the Code of
Federal Regulations provide in relevant part that the employee may be furnished necessary and
reasonable transportation and expenses incidental to the securing of such services, appliances
and supplies.4 To determine what a reasonable distance to travel is, OWCP will consider the
availability of services, the employee’s condition, and the means of transportation. Generally,
100 miles from the place of injury, the work site, or the employee’s home, is considered a
reasonable distance to travel.5

2

The development letter also referenced other dates claimed for mileage reimbursement. It noted the dates which
were authorized for payment and dates which were not approved because authorization of reimbursement of mileage
to Dr. Fred McQueen’s office, appellant’s physician, was terminated effective May 31, 2012 and upheld by the
Branch of Hearings and Review on January 7, 2013. The Board notes that it does not have jurisdiction to review the
January 7, 2013 decision because more than 180 days elapsed from issuance of that decision to the filing of this
appeal on January 13, 2014. 20 C.F.R. § 501.3(e).
3

5 U.S.C. § 8103.

4

Id. at § 8103(a).

5

20 C.F.R. § 10.315.

2

The issues of authorization for medical treatment and reimbursement of travel expenses
for medical treatment are separate and distinct. OWCP may authorize medical treatment but
determine that the travel expense incurred for such authorized treatment was unnecessary or
unreasonable.6 The Board has recognized that OWCP has discretion with respect to
authorization of travel expenses for medical treatment.7
The only limitation on OWCP’s authority is reasonableness. 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 known facts.8 The
Board has held that, in interpreting relevant sections of FECA, OWCP has broad discretion in
approving services provided under FECA.9
ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying reimbursement of
travel for October 15, 2012.
On August 15, 2013 appellant requested authorization of mileage reimbursement on
October 15, 2012. In an August 16, 2013 letter, OWCP advised him that he must submit medical
records establishing treatment on that date for consideration of authorization of payment.
Appellant, however, failed to submit any medical evidence documenting medical treatment on
October 15, 2012.
The Federal (FECA) Procedural Manual provides that no travel expense shall be allowed
until the evidence shows that travel was performed for the purpose authorized. This is usually
established by a report from the attending or examining physician which lists the dates when the
injured employee reported to the physician.10 OWCP may then determine whether the travel
expense incurred was reasonable and necessary for treatment.11
OWCP has broad discretion in considering whether to reimburse or authorize travel
expenses. The only limitation on OWCP’s authority is reasonableness. As noted, 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 deduction from known
facts.12 Appellant failed to submit any medical evidence to document treatment on October 15,
6

W.M., 59 ECAB (2007).

7

V.K., Docket No. 12-1103 (issued October 12, 2012).

8

See Lecil E. Stevens, 49 ECAB 673 (1998).

9

See Wanda L. Campbell, 44 ECAB 633 (1993).

10

See Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Overview of the BPS System, Chapter
5.204.8(m) (January 1996).
11

See Dr. Mira R. Adams, 48 ECAB 504 (1997).

12

See William B. Webb, 56 ECAB 156 (2004); Lecil E. Stevens, 49 ECAB 673 (1998).

3

2012 by a qualified physician. OWCP did not abuse its discretion by denying reimbursement of
travel on that date.13
On appeal, counsel contends that authorization of reimbursement of mileage to
Dr. McQueen’s office should not have been terminated. As noted, the Board does not have
jurisdiction over the January 7, 2013 decision upholding the May 31, 2012 termination of
authorization of travel and expense reimbursements related to appellant’s treatment by
Dr. McQueen.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for reimbursement of travel expenses for the period October 15, 2012.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2014
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
13

Angie Prater, Docket No. 01-104 (issued February 25, 2003).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF THE INTERIOR, BLMREGULAR EMPLOYEE FUNCTIONS
NEVADA STATE OFFICE, Reno, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0340
Issued: October 24, 2016

Case Submitted on the Record

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

JURISDICTION
On December 15, 2015 appellant filed a timely appeal from a November 30, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision dated June 10, 2015 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its November 30, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On September 3, 2002 appellant, then a 34-year-old wild land firefighter, filed an
occupational disease claim (Form CA-2) alleging that he developed scarring of the lungs and
restrictive lung disease as a result of his federal employment duties. He explained that his
condition developed from 11 years of wild land firefighting, sometimes in heavy smoke and
toxic chemicals, along with a burn injury in 1996 which injured his lungs.3 Appellant stopped
work on July 14, 2002 and did not return. The record does not reflect that appellant received
compensation benefits on the supplemental or periodic rolls.
By decision dated March 4, 2003, OWCP accepted the claim for smoke inhalation.
On April 26, 2015 appellant filed a claim for recurrence of disability (Form CA-2a)
alleging a return/increase of disability on April 20, 2015. He explained that he was
retired/disabled and had not returned to work, but that on April 20, 2015 he had difficulty
breathing and sought emergency treatment, at which time he was diagnosed with restrictive lung
disease.
By letter dated May 6, 2015, OWCP informed appellant that the evidence of record was
insufficient to support his recurrence claim. Appellant was advised of the medical and factual
evidence needed and was afforded 30 days to submit the additional evidence.
In a May 11, 2015 narrative statement, appellant related that he injured his lungs on
August 27, 1996 when he was fighting a wildfire in Nevada. He explained that over the past 10
years he had been suffering from shortness of breath, which had worsened during the last few
months. On April 20, 2015 appellant sought emergency treatment and underwent a series of
tests. At the request of his physician, he returned to the emergency room on April 22, 2016 with
increased shortness of breath. Appellant remained in the hospital until May 2, 2015 when he was
diagnosed with restrictive lung disease. He was sent home with 100 percent oxygen treatment
which he was required to use 24 hours a day, 7 days a week.
In an April 23, 2015 diagnostic report, Dr. Saadia Akhtar, Board-certified in internal
medicine, reported that lung volumes revealed mild-to-moderate restrictive ventilator impairment
and spirometry revealed reduced forced vital capacity (FVC) suggesting restriction.
In a May 1, 2015 St. Luke’s hospital emergency report, Linda J. Gould, a nurse
practitioner (NP), diagnosed restrictive lung disease, joint pain, and other nonspecific abnormal
finding of lung fluid.
By decision dated June 10, 2015, OWCP denied appellant’s claim for recurrence because
the medical evidence submitted failed to establish that his alleged disability was due to a material
change/worsening of his accepted work-related conditions.
3

The Board notes that on August 2, 1996, appellant filed a traumatic injury claim (Form CA-1) for burns suffered
in a work-related injury. OWCP accepted the claim for second and third degree burns of the finger, hands, and arms
(bilateral) in OWCP File No. xxxxxx797. On April 26, 2000 OWCP expanded the claim to include post-traumatic
stress disorder. Following these injuries, appellant returned to work as a firefighter.

2

Appellant requested reconsideration of OWCP’s decision on November 20, 2015. In an
accompanying narrative statement, he explained that he was requesting reconsideration based on
recent medical testing and results showing that his progressive disability of interstitial lung
disease was caused by his work-related injury. Appellant stated that he was enclosing the
required documents including recent pulmonary function test results, hospital notes, pathology
reports, and physicians’ statements. The record before the Board, however, contains no
additional documents.
By decision dated November 30, 2015, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
the OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations
provides that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In his application for reconsideration, appellant did not allege that OWCP erroneously
applied or interpreted a specific point of law. He did not advance relevant legal argument which
had not previously been considered. The decisive issue in this case was whether appellant was
disabled on or after April 20, 2015 due to a worsening of his accepted work-related smoke
inhalation condition. That is a medical issue which must be addressed by relevant medical
evidence.6 Appellant, however, failed to submit relevant and pertinent new medical evidence in
support of his claim.7
Appellant alleged that he had submitted additional medical reports in support of his
claim. However, his reconsideration request was not accompanied by any additional medical
4

D.K., 59 ECAB 141 (2007).

5

K.H., 59 ECAB 495 (2008).

6

C.B., Docket No. 08-1583 (issued December 9, 2008).

7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

3

evidence and no other evidence was received by OWCP. A claimant may obtain a merit review
of an OWCP decision by submitting pertinent new and relevant evidence.8 In this case, appellant
failed to submit any pertinent new and relevant evidence addressing a recurrence of disability
due to his accepted employment injury beginning April 20, 2015.9
On appeal, appellant alleges that work caused his interstitial lung disease and submitted
additional evidence in support of his claim. As previously noted, the Board does not have
jurisdiction over the merits of the claim.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 30, 2015 is affirmed.
Issued: October 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
8

See E.M., Docket No. 16-0471 (issued May 16, 2016).

9

L.J., Docket No. 14-523 (issued August 7, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY MEDICAL CENTER,
Tampa, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 19-0991
Issued: January 21, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On April 5, 2019 appellant filed a timely appeal from a February 7, 2019 decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 19-0991.
On April 20, 2017 appellant, then a 49-year-old program support assistant, filed a traumatic
injury claim (Form CA-1) alleging that on April 18, 2017 she injured both lower extremities when
she slipped and fell while in the performance of duty. She stopped work on the date of injury.
OWCP accepted the claim for unspecified closed fracture of shaft of right tibia and expanded
acceptance of the claim to include sprain of the lumbar spine and pelvis, and sprain of the right
hamstring. Appellant thereafter filed several claims for compensation (Form CA-7) seeking wageloss compensation benefits. OWCP paid her wage-loss compensation on the supplemental
compensation rolls commencing June 12, 2017.

1

The Board notes that following the February 7, 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.

On September 28, 2017 the employing establishment offered appellant a temporarymodified assignment within the restrictions provided by Dr. William Dinenberg, a Board-certified
orthopedic surgeon who was serving as an OWCP second opinion physician. Appellant refused
the offered position on October 3, 2017.
In a notice dated December 11, 2017, OWCP proposed to terminate appellant’s wage-loss
compensation, based on the restrictions provided by Dr. Dinenberg. It informed appellant of the
provisions of 20 C.F.R. § 10.500(a) and advised her that her entitlement to wage-loss
compensation would be terminated under this provision if she did not accept the offered temporary
assignment or provide a written explanation with justification for her refusal within 30 days.
Appellant disagreed with the proposed termination and submitted medical evidence.
By decision dated January 22, 2018, OWCP terminated appellant’s wage-loss
compensation, effective January 23, 2018, pursuant to 20 C.F.R. § 10.500(a). It notified her that
if she disagreed with the decision, she should follow the attached appeal rights, and if the
September 28, 2017 job offer was withdrawn or her work-related medical condition worsened such
that she could not perform these duties, she could file a notice of recurrence (Form CA-2a).
On April 24, 2018 appellant requested reconsideration and submitted a number of medical
reports. By letter dated May 4, 2018, OWCP forwarded a copy of appellant’s reconsideration
request to the employing establishment. By decision dated July 19, 2018, it denied modification
of its prior decision.
Appellant next requested reconsideration on November 20, 2018 and submitted additional
medical evidence. Along with her reconsideration request, she submitted a claim for ongoing
wage-loss compensation (Form CA-7) commencing January 22, 2018. By letter dated
November 29, 2018, OWCP forwarded a copy of appellant’s reconsideration request to the
employing establishment.
By decision dated February 7, 2019, OWCP denied modification of its prior decisions. It
found that appellant was not entitled to continuing compensation following the January 23, 2018
termination since compensation was not payable during the duration of the temporary assignment.
Having reviewed the case record, the Board finds this case is not in posture for decision.
OWCP’s procedures describe the circumstances for offering a temporary position in
accordance with 20 C.F.R. § 10.500(a) of its regulations. Section 2.814.9c(1)(d) provides that
when the temporary light-duty assignment ends or the work is no longer available, the claimant is
entitled to compensation and should be placed back on compensation rolls as long as medical
evidence supports any disabling residuals of the work-related disability.2 Section 2.814.9c(10)
provides that when a temporary light-duty assignment ends or the work is no longer available, the

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9c(1)(d)
(June 2013).

2

claimant should submit a Form CA-2a or Form CA-7, with verification from the employing
establishment that the work is no longer available.3
Appellant submitted a wage-loss compensation claim, Form CA-7, to OWCP with her
November 20, 2018 reconsideration request. She had also requested reconsideration on
April 24, 2018. In its letters to the employing establishment following the April 24 and
November 20, 2018 reconsideration requests, OWCP did not ask the employing establishment
whether the temporary assignment remained available.
The Board finds that it is unable to make an informed decision as to whether appellant has
established entitlement to wage-loss compensation benefits, claimed on her Form CA-7 claims for
wage-loss compensation, under 20 C.F.R. § 10.500(a) because it did not ascertain whether the
temporary assignment, on which the termination of wage-loss compensation was based, remained
available. In the February 7, 2019 decision, OWCP specifically found that appellant was not
entitled to continuing compensation following the January 23, 2018 termination since
compensation was not payable during the duration of the assignment. However, OWCP’s finding
is incorrect as this denial of wage-loss compensation is not a suitable work termination under 5
U.S.C. § 8106(c)(2), a statutory provision which serves as a penalty for refusing a position found
to be suitable for an employee on the periodic compensation rolls.4
It is well established that proceedings under the Federal Employees’ Compensation Act5
(FECA) are not adversarial in nature, and that, while appellant has the burden of proof to establish
entitlement to compensation, OWCP shares responsibility in the development of the evidence.
OWCP has an obligation to see that justice is done.6 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.7
Without information regarding the availability of the temporary-modified position, an
informed decision cannot be reached on the relevant issue in this case.8 The case must, therefore,
be remanded for OWCP to obtain information from the employing establishment as to whether the
temporary-modified assignment remains available and, if not, when it became unavailable for the
periods covered by appellant’s Form CA-7 claims. After such further development as OWCP
deems necessary, it shall issue a de novo decision.

3

Id. at Chapter 2.814c(10).

4

See 5 U.S.C. § 8106(c)(2).

5

5 U.S.C. § 8101 et seq.

6

S.C., Docket No. 19-0920 (issued September 25, 2019).

7

20 C.F.R. § 10.121.

8

I.C., Docket No. 17-1684 (issued January 22, 2019).

3

IT IS HEREBY ORDERED THAT the February 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: January 21, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-973
Issued: January 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 23, 20121 appellant, through her counsel, filed an appeal of a September 27,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying a recurrence
of disability. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability on
and after January 15, 2011 due to an accepted right ankle contusion and reflex sympathetic
dystrophy.

1

Counsel’s request for appeal was postmarked March 23, 2012 and received by the Clerk of the Board on
March 27, 2012.
2

5 U.S.C. § 8101 et seq.

On appeal, counsel asserts that OWCP incorrectly found that an increase in pain caused
by accepted complex regional pain syndrome did not constitute a recurrence of disability. He
noted that the accepted condition was a pain syndrome and that its documented spontaneous
increase was therefore a recurrence of disability. Counsel asserted that the opinion of an
attending pain management specialist was sufficient to establish the claimed recurrence of
disability.
FACTUAL HISTORY
OWCP accepted that on June 2, 2009 appellant, then a 31-year-old full-time program
assistant, sustained a right ankle contusion with reflex sympathetic dystrophy/complex regional
pain syndrome when struck by a metal wheelchair footrest. Appellant stopped work on June 2,
2009 and received compensation for temporary total disability. She first sought treatment from
Dr. Edward L. Chairman, an attending podiatrist. In a June 4, 2009 report, Dr. Chairman noted
that she had surgery on her right Achilles tendon in September 2009 and a previously accepted
occupational injury to the right foot on November 4, 2008. Dr. Jason H. Lee, an attending
physician Board-certified in physiatry and pain medicine, treated appellant beginning on
June 23, 2009. As conservative measures did not resolve appellant’s pain symptoms or the
objective skin temperature and color changes in the right foot, Dr. Lee implanted a spinal
stimulator on November 24, 2009, approved by OWCP.
Appellant returned to work for four hours a day as a program assistant on April 19, 2010.
She received wage-loss compensation for the remaining four hours a day through
January 14, 2011. Appellant remained under treatment.
On January 24, 2011 appellant filed a recurrence of disability, asserting that the accepted
condition worsened on January 13, 2011 such that she could no longer perform her modified
position. She explained that she experienced a sudden intensification of right foot and leg pain
while sitting at her desk at work. Appellant then sought treatment at a hospital emergency room.
She stopped work on January 14, 2011. Appellant claimed compensation for total disability
from January 20, 2011 onward. OWCP continued to compensate her for four hours a day of
wage loss.
In a January 19, 2011 report, Dr. John Park, an attending physician Board-certified in
pain management, noted examining appellant on January 14, 2011. He opined that she could not
work due to chronic pain caused by the accepted reflex sympathetic dystrophy syndrome.
Dr. Park recommended stress reduction therapy. He held appellant off work through
February 18, 2011.
In a February 9, 2011 letter, OWCP advised appellant of the type of evidence needed to
establish her claim, including a narrative report from her physician documenting a spontaneous
worsening of the accepted condition disabling her from performing her part-time position.
Dr. Park submitted February 9 and March 1, 2011 reports noting that appellant had poor
pain control despite the spinal cord stimulator and medication. He found her totally disabled for
work due to complex regional pain syndrome.

2

On April 4, 2011 OWCP obtained a second opinion from Dr. Mohammad Aslam, a
Board-certified neurologist, who reviewed medical records and a statement of accepted facts
provided by OWCP. Dr. Aslam related appellant’s symptoms of bilateral lower extremity pain.
On examination, he noted stocking anesthesia in both legs and muscle tightness in the right foot
and knee. Dr. Aslam diagnosed complex regional pain syndrome/reflex sympathetic dystrophy
with an emotional overlay. He found appellant able to resume working four hours a day, noting
that there was no objective evidence that the accepted condition worsened as of
January 13, 2011.
By decision dated May 4, 2011, OWCP denied appellant’s claim for a recurrence of
disability on the grounds that the medical evidence was insufficient to establish a worsening of
the accepted reflex sympathetic dystrophy syndrome on January 15, 2011. It accorded the
weight of the medical evidence to Dr. Aslam as he was a Board-certified neurologist while
Dr. Park was Board-certified in pain management.
In a May 11, 2011 letter, appellant, through counsel, requested a telephonic hearing, held
August 3, 2011. At the hearing, she stated that, in mid-January 2011, she observed an objective
increase in swelling in the right calf and knee, with muscle spasms in the right leg. Appellant’s
physician also observed increased atrophy in the right calf. Counsel asserted that Dr. Park’s
May 10, 2011 opinion created a conflict with that of Dr. Aslam, requiring appointment of a
referee medical specialist. Appellant submitted additional evidence.
Dr. Park noted worsening right lower extremity pain with muscle spasms on March 243
and April 19, 2011. In a May 10, 2011 report, he diagnosed worsening chronic regional pain
syndrome and neuropathic pain. Dr. Park contended that reflex sympathetic dystrophy syndrome
was a pain syndrome treated by pain management specialists, not neurologists and that his
expertise in the condition was superior to that of Dr. Aslam. He explained that appellant’s
subjective reports of increased pain beginning on January 13, 2011 correlated well with the
objective findings on January 14, 2011 examination of “increased allodynia and hyperesthesia.
In addition, [appellant had] discoloration and swelling of the lower extremities … consistent with
RSD [reflex sympathetic dystrophy].” Dr. Park characterized her as honest and realistic in
describing her symptoms. He submitted June 14 and August 30, 2011 reports finding increased
swelling of both legs.
By decision dated and finalized September 27, 2011 an OWCP hearing representative
affirmed OWCP’s May 4, 2011 decision, finding that appellant had not established a recurrence
of disability on and after January 15, 2011. The hearing representative found that Dr. Park
presented insufficient objective evidence of a worsening of the claimed complex regional pain
syndrome.

3

In a March 23, 2011 report, Dr. Shailen Jalali, an attending physician Board-certified in pain management and
an associate of Dr. Park, observed allodynia and hyperesthesia in the lower extremities. He diagnosed chronic
regional pain syndrome and neuropathic pain.

3

LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”4 When an employee, who is
disabled from the job he or she held when injured on account of employment-related residuals,
returns to a light-duty position or the medical evidence establishes that the employee can perform
the light-duty position, the employee has the burden to establish by the weight of the reliable,
probative and substantial evidence, a recurrence of total disability and to show that he or she
cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty job requirements such that the position exceeds the employee’s physical limitations.5 An
award of compensation may not be based on surmise, conjecture or speculation or on appellant’s
unsupported belief of causal relation.6
Section 8123 of FECA provides that, if there is a 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 In situations where there exist
opposing medical reports of virtually equal weight and rationale and 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.8
ANALYSIS
OWCP accepted that appellant sustained a right ankle contusion with consequential
reflex sympathetic dystrophy/complex regional pain syndrome. Appellant remained off work
from June 2, 2009 to April 18, 2010. She returned to work for four hours a day on
April 19, 2010. Appellant claimed a recurrence of disability commencing January 13, 2011
while working four hours a day. She described a sudden, spontaneous worsening of her right
lower extremity symptoms while sitting at her desk at work.
Dr. Park, an attending physician Board-certified in pain management, found appellant
totally disabled for work as of January 14, 2011 due to complex regional pain syndrome of the
right lower extremity. He noted that medication and a spinal cord stimulator did not alleviate her
4

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
5

J.F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see also
Terry R. Hedman, 38 ECAB 222 (1986).
6

Alfredo Rodriguez, 47 ECAB 437 (1996).

7

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

8

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

4

symptoms. On April 4, 2011 appellant obtained a second opinion from Dr. Aslam, a Boardcertified neurologist, who found that the accepted complex regional pain syndrome did not
disable appellant from working four hours a day. Dr. Aslam stated that the medical record did
not support a worsening of the accepted condition in mid-January 2011. OWCP denied
appellant’s recurrence claim on May 4, 2011 based on his report as the weight of the medical
evidence.
Following an August 3, 2011 hearing, Dr. Park responded to Dr. Aslam’s opinion in a
May 10, 2011 letter. He explained that, on January 14, 2011 examination, appellant exhibited an
objective increase in allodynia and hypoesthesia, with swelling and discoloration of the lower
extremities. Dr. Park opined that these clinical findings, correlated well with appellant’s account
of increased pain beginning on January 13, 2011. He assessed appellant as honest and realistic in
describing her symptoms. OWCP affirmed the denial of her recurrence claim on September 27,
2011, again according Dr. Aslam the weight of the medical evidence.
Dr. Park opined that objective findings on a January 14, 2011 examination were
consistent with appellant’s account of a worsening of symptoms on January 13, 2011. In
contrast, Dr. Aslam found that the medical evidence did not support a worsening of the accepted
condition in mid-January 2011. The Board therefore finds that there is an outstanding conflict of
medical opinion between Dr. Park and Dr. Aslam regarding whether she sustained a recurrence
of disability on and after January 15, 2011 due to the accepted reflex sympathetic dystrophy
syndrome, disabling her from her modified position. The case will be remanded to OWCP for
selection of an impartial medical examiner to resolve the conflict of opinion.9 Following this and
any other development deemed necessary, OWCP shall issue an appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision due to a conflict of medical
opinion.

9

Supra note 7.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 27, 2011 is set aside and the case remanded to OWCP
for further action consistent with this opinion.
Issued: January 7, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1538
Issued: April 1, 2011

Case Submitted on the Record

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

JURISDICTION
On May 19, 2010 appellant filed a timely appeal from a January 19, 2010 merit decision.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on March 15, 2009.
FACTUAL HISTORY
On July 9, 2009 appellant, then a 44-year-old food service worker, filed a traumatic
injury claim alleging that he sustained a back fracture in the employing establishment’s break
room on March 15, 2009 when a coworker pulled a chair from under him and caused him to fall
on his buttocks. He did not stop work.1 The coworker acknowledged in a June 29, 2009
1

The record indicates that appellant eventually resigned from his position, but no specific date is given.

statement that he pulled a chair from under appellant as a joke on an unspecified date, but
appellant did not complain of pain. He added that appellant did not appear angry after the fall
and even laughed.
The employing establishment controverted the claim on July 9, 2009, pointing out that
appellant did not file until he became the subject of an administrative investigation and more
than 30 days after the incident.
In a July 9, 2009 report from Dr. John C. Carmen II, a Board-certified family practitioner,
appellant presented back pain and right leg radicular pain and numbness. The symptoms related
to an incident involving a coworker pulling a chair from under him and causing him to fall and
hit his buttocks on the floor. Initially appellant had right-sided pain that seemed to improve
before worsening. Dr. Carmen examined appellant and observed an abnormal gait and hip pain
on adduction, abduction and rotation. He diagnosed low back pain and possible sciatica.
Dr. Carmen stated that appellant was “talking about workman’s comp and changing jobs” due to
his pain. He advised appellant to discuss job matters with his supervisor.
On July 9, 2009 an x-ray report from Dr. Alan R. Brautigam, a Board-certified diagnostic
radiologist, revealed mild to moderate spondylosis of the L1-L2. Dr. Brautigam noted
comparing the current x-ray with an April 13, 2007 x-ray and advised that there was no interval
change. A July 9, 2009 magnetic resonance imaging (MRI) scan report for the right hip, from
Dr. Nathan D. Hensley, a Board-certified diagnostic radiologist, exhibited a small anterior
femoral neck bump in the right hip “which may contribute to femoral acetabular impingement”
and was otherwise unremarkable.
The Office informed appellant in a July 14, 2009 letter that the evidence was insufficient
and advised about the evidence needed to establish his claim.
Appellant submitted a statement detailing that he hit his head and shoulders against a
toilet stall door and scraped his right arm on the floor as a result of the March 15, 2009 fall. He
also provided several medical records. In a May 11, 2009 report from Dr. Steven Maertens, a
Board-certified emergency physician, appellant complained of left hip pain and stiffness for a
three-week duration and denied any recent injury. He observed an antalgic gait and diagnosed
left hip arthralgia and possible osteoarthritis.
A physician assistant’s June 23, 2009 note detailed that appellant, who presented right
hip pain and numbness, “just really does not care and appears to be seeking drugs.” Appellant
responded both positively and negatively to a straight leg raise test and demonstrated a normal
gait. The physician assistant commented that appellant was “not a good historian” and “not
being truthful so an accurate exam[ination] cannot be evaluated.”
A June 18, 2009 x-ray report from Dr. A. William Stark, a Board-certified diagnostic
radiologist, revealed no right hip abnormality. A July 9, 2009 lumbar spine MRI scan report
from Dr. Kevin Wanebo, a Board-certified diagnostic radiologist, exhibited mild L1-L2 and L2L3 broad-based disc bulging, L3-L4 spinal canals narrowing, L4-L5 right eccentric disc
herniation and spinal canal stenosis, and L5-S1 bilateral disc/osteophyte complex and bilateral
neural foramen narrowing with borderline spinal canal stenosis.

2

Appellant also submitted notes from various nurses and physician assistants for the
period May 11 to July 21, 2009. The employing establishment continued to controvert the claim.
In an August 20, 2009 decision, the Office denied appellant’s claim, finding the medical
evidence insufficient to establish that the March 15, 2009 work incident caused a back fracture.
On October 30, 2009 appellant requested reconsideration and submitted medical records
for the period June 20, 1997 to September 1, 2009.2 An April 13, 2007 x-ray report from
Dr. Gary Thieme, a Board-certified diagnostic radiologist, revealed vertebral body and endplate
abnormalities, mild facet arthritis at multiple levels and degenerative disc disease of the L1-L2
that “may be related to old trauma.” In a July 30, 2009 report, a nurse practitioner noted that
appellant injured his back and right hip when a coworker pulled a chair from under him and was
unable to return to work.
An August 4, 2009 report from a physician assistant and signed by Dr. Thomas H.
Niethammer, a Board-certified internist, noted that although appellant claimed that a chair was
pulled from under him at work on March 15, 2009, Dr. Maertens’ May 11, 2009 report indicated
that appellant presented a sudden onset of back and hip pain, did not provide documentation of a
work-related fall and denied any recent injury. It was noted that appellant was able to continue
light-duty work.
In an October 30, 2009 letter on his behalf, appellant’s sister asserted that he had no
preexisting back or hip problems until the March 15, 2009 fall, which resulted in a pinched
sciatic nerve. She stated, “While the doctors cannot confirm that this was caused by the fall, they
can[no]t disprove it either. And considering [appellant’s] history of no back problems, this does
seem to be telling.” Appellant’s sister also questioned the physician assistant’s June 23, 2009
note.
By decision dated January 19, 2010, the Office denied the claim finding that the medical
evidence was insufficient to establish a causal relationship between the March 15, 2009 incident
and a diagnosed medical condition.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act3
has the burden of establishing the essential elements of his claim by the weight of reliable,
probative and substantial evidence,4 including that he is an “employee” within the meaning of
the Act and that he filed his claim within the applicable time limitation.5 The employee must

2

Most of appellant’s medical records predate the March 15, 2009 incident and concern other health conditions,
including Asperger syndrome, hypertension, hyperlipidemia, abnormal liver function, depression and substance
abuse. None of these conditions are at issue in this case.
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

R.C., 59 ECAB 427 (2008).

3

also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
The evidence supports that appellant fell on March 15, 2009 when a coworker pulled a
chair from under him. However, he has not submitted sufficient medical evidence to establish
that this work incident caused or aggravated a back or leg injury.
Dr. Carmen’s July 9, 2009 report related a history of an incident involving a coworker
pulling a chair from under appellant and diagnosed low back pain and possible sciatica.
However, he did not specifically opine that the work incident caused an injury nor did he provide
reasoning to explain the pathophysiological process by which this employment incident caused or
contributed to appellant’s injuries. Likewise, the August 4, 2009 physician assistant’s report
cosigned by Dr. Niethammer did not elaborate on the causal connection between the March 15,
2009 fall and appellant’s condition. Medical opinion not fortified by medical rationale is of little
probative value.9 The need for rationale is particularly important in this case where Dr. Thieme’s
April 13, 2007 x-ray report suggests that appellant may have sustained preexisting lumbar
trauma. In addition, although Dr. Martens’ May 11, 2009 report and Drs. Brautigam, Hensley
and Wanebo’s June 9, 2009 radiological reports assessed various back and hip ailments, all are
of limited probative value as none offered an opinion regarding the cause of injury.10 Other
6

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

7

T.H., 59 ECAB 388 (2008).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

George Randolph Taylor, 6 ECAB 986, 988 (1954).

10

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

4

medical reports submitted by appellant that predate the time of the claimed injury also are of
limited probative value.
Appellant submitted medical records from nurses and physician assistants. These
documents have no probative medical value because nurses and physician assistants are not
“physicians” as defined under the Act.11 Therefore, appellant failed to establish his claim.
Appellant argues on appeal that the March 15, 2009 fall necessarily caused his back, hip
and leg condition because he was not involved in any earlier incidents. He also argues that the
medical personnel who attended to him “attest to the fact that [appellant] had sustained an injury
resulting from his fall, and that his back, hip and leg pain was most likely a result of this fall,”
but were unwilling to “to give a definite yea or nay.” Causal relationship is a medical issue and,
in general, can only be addressed by a qualified physician.12 A physician’s opinion need not
reduce the cause or etiology of a disease or condition to an absolute medical certainty but the
opinion supporting causal relationship must be one of reasonable medical certainty and such
relationship must be supported with affirmative evidence, explained by medical rationale and be
based upon a complete and accurate medical and factual background of the claimant.13 As
discussed above, however, the medical evidence of record is insufficient as it does not provide a
reasoned opinion explaining how the March 15, 2009 incident caused or aggravated a diagnosed
medical condition.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a traumatic injury in
the performance of duty on March 15, 2009.

11

5 U.S.C. § 8102(2); Roy L. Humphrey, 57 ECAB 238, 242 (2005).

12

See I.J., supra note 8 at 415; Charley V.B. Harley, 2 ECAB 208, 211 (1949).

13

A.D., 58 ECAB 149, 157 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6