United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Denver, CO, Employer
__________________________________________

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Appearances:
John Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-530
Issued: July 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 8, 2014 appellant, through her attorney, filed a timely appeal from a July 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 a modification of the January 24, 2011
wage-earning capacity determination was warranted.
FACTUAL HISTORY
The case previously was before the Board.2 OWCP accepted that appellant sustained a
lumbar sprain, permanent aggravation of degenerative disc disease, lumbar radiculopathy and
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-442 (issued August 28, 2012).

bilateral S1 joint dysfunction causally related to her federal employment as a mail processor.
Appellant received compensation for total disability as of February 3, 2010. OWCP found that a
conflict in the medical evidence with respect to employment-related work restrictions and
Dr. Jeffrey Sabin, a Board-certified orthopedic surgeon, was selected as a referee physician. It
issued a wage-earning capacity determination dated January 24, 2011, finding that the
constructed position of customer service representative at $480.00 per week represented
appellant’s wage-earning capacity. An April 23, 2009 report from Dr. Sabin was found to
represent the weight of medical opinion. The Board remanded the case, noting that there was no
evidence of record to establish that he was properly selected as a referee physician. The history
of the case as provided in the Board’s prior order is incorporated herein by reference.
On August 14, 2012 appellant underwent lumbar surgery performed by Dr. Jeffrey
Kleiner, a treating orthopedic surgeon. She filed a claim for compensation (Form CA-7)
commencing August 14, 2012. By letter dated August 29, 2012, OWCP advised appellant that
the surgery was authorized. Since the record showed that her condition had worsened, she would
receive compensation for total disability commencing August 14, 2012. Appellant continues to
receive compensation for total disability.
With respect to the selection of Dr. Sabin, the record contains an October 31, 2012
memorandum from the medical scheduler. The scheduler stated that on March 25, 2009 she
entered information regarding appellant’s case unto the Physician’s Directory System (PDS) and
the system selected Dr. Sabin. According to the scheduler, no other physicians were bypassed as
Dr. Sabin was the first name that was selected. The record also contains a copy of a print screen
indicating no bypasses were found.
By decision dated December 21, 2012, OWCP found that the prior wage-earning capacity
determination dated January 24, 2011 remained valid. Based on the evidence found that there
was no basis to modify the determination.
Appellant, through her representative, requested a hearing before an OWCP hearing
representative that was held on May 6, 2013. She argued that OWCP had just reissued the
decision that the Board had found was improper. In addition, appellant argued that Dr. Sabin’s
report was stale; that he did not consider all employment-related conditions and the job
description did not provide the required hours of sitting, walking and standing. She argued that it
was not clear from the vocational rehabilitation counselor whether the availability of jobs
referred to the selected customer service representation position or to a receptionist position.
By decision dated July 24, 2013, the hearing representative affirmed the December 21,
2012 decision. The hearing representative found that Dr. Sabin was properly selected referee as
the physician. Further, no error in the original wage-earning capacity determination was
established.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

2

rehabilitated or the original determination was, in fact, erroneous.3 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.4
ANALYSIS
The factual history indicates that, as of August 14, 2012, appellant began receiving
compensation for total disability and continues to receive such compensation. She received
monetary compensation from January 29, 2011 to August 13, 2012 based on a loss of wageearning capacity. Appellant has argued that the January 24, 2011 wage-earning capacity
determination was erroneous and should be modified.
As to the selection of Dr. Sabin, the Board previously noted that record contained only an
ME023 sheet that was not sufficient documentation to support selection of Dr. Sabin in 2009.
On remand, OWCP provided evidence from the medical scheduler as to the selection of
Dr. Sabin. The medical scheduler noted that the PDS was used and that no physicians were
bypassed as Dr. Sabin was the first physician that appeared under the PDS rotational selection
process. The record also contains a screen shot supporting that no physicians were bypassed.
The prior Board remand was premised on the lack of documentary evidence as to the
selection of Dr. Sabin. The record now contains documentation as to the proper selection of
Dr. Sabin. The Board finds that he was properly selected as the referee physician in this case.5
Having established Dr. Sabin as a referee physician, the next question is whether his report and
the medical evidence of record are sufficient to establish that the selected position was medically
suitable.
The selected position of customer service representative was a sedentary position with up
to 10 pounds of lifting. Although the number of hours of sitting is not specifically noted,
appellant had previously stated that the term “sedentary” as found under the Dictionary of
Occupational Titles Appendix C means “sitting most of the time” but may involve brief periods
of standing and walking.6
Appellant argued at the May 6, 2013 hearing that Dr. Sabin limited her to five hours of
sitting intermittently. The copy in the record of the April 23, 2009 OWCP-5c form Dr. Sabin
provided for eight hours with respect to intermittent sitting. This is consistent with his indication
that appellant could work eight hours a day, the other restrictions noted (such as up to seven
hours lifting of 20 pounds and six hours squatting) and his narrative report. Dr. Sabin did not
place restrictions on sitting in the narrative report other than noting that she should change
positions approximately every 30 minutes. The selected position was a sedentary position with a
10-pound lifting restriction. Dr. Sabin considered all of appellant’s conditions, whether
3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

See, e.g., D.F., Docket No. 09-1463 (issued August 12, 2010) (OWCP documented the proper selection of the
referee physician using the PDS).
6

Department of Labor’s Dictionary of Occupational Titles, Appendix C, Components of the Definition Trailer.

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employment related or not and based his opinion on a complete background. It is well
established that when a case is referred to a referee physician for the purpose of resolving a
conflict, the opinion of such referee, if sufficiently well rationalized and based on a proper
factual and medical background, must be given special weight.7 The Board finds that the weight
of the medical evidence established that the selected position was medically suitable.
The Board also finds that the selected position was properly found to be vocationally
suitable and available in appellant’s commuting area. The record properly notes that employer
contacts were made, the position was found reasonably available in appellant’s commuting area
and the weekly wages were $440.00 to $520.00. There was no probative evidence of error in this
regard.
The Board finds that appellant has not established that the original wage-earning capacity
determination was erroneous. OWCP followed its procedures and the selected sedentary
position was medically suitable. Appellant did not present any probative evidence of a material
change in an employment-related condition prior to August 14, 2012. Therefore, the Board finds
that she did not meet her burden of proof to establish that a modification of the wage-earning
capacity determination was warranted. Appellant did not show that the original determination
was erroneous or establish a material change in an employment-related condition warranting
modification. The Board notes that she may request modification of a wage-earning capacity
determination, supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established that the wage-earning capacity
determination should be modified.

7

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2013 is affirmed.
Issued: July 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, BUFFALO
PROCESSING & DISTRIBUTION CENTER,
Buffalo, NY, Employer
__________________________________________

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Appearances:
David W. Covino, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1474
Issued: March 13, 2015

Case Submitted on the Record

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

JURISDICTION
On June 16, 2014 appellant, through his attorney, filed a timely appeal from a
February 6, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability on February 2, 2013 due to his October 26, 2008 employment injury.
On appeal, appellant’s attorney asserts that, because reflex sympathetic dystrophy (RSD)
has now been accepted by OWCP, appellant is entitled to wage-loss compensation.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 26, 2008 appellant, then a 49-year-old tractor/trailer operator, sustained an
employment-related fracture of his left ankle when he fell at work. He stopped work that day
and on October 31, 2008 underwent open reduction internal fixation of the left ankle trimalleolar
fracture. Appellant received continuation of pay and compensation and was placed on the
periodic compensation rolls. On January 18, 2009 he was hospitalized with a left leg deep vein
thrombosis (DVT). On February 12, 2009 OWCP accepted the conditions of left ankle fracture
and DVT. Appellant returned to full duty with no restrictions on May 11, 2009.
On September 23, 2010 appellant was granted a schedule award for a 25 percent left
lower extremity impairment, for a total of 72 weeks, to run from February 22 to July 10, 2010.
At his request, his schedule award was paid in a lump sum. On February 3, 2011 appellant filed
a recurrence claim, indicating that he stopped work on October 26, 2010 because he could not sit
in the truck for longer than 30 minutes at a time without his leg becoming painful and swelling.
OWCP accepted the October 26, 2010 recurrence. On March 10, 2011 appellant returned to full
duty. In a May 5, 2011 decision, OWCP denied his claim for compensation because his schedule
award compensation had not yet expired.
On February 8, 2012 appellant was granted a schedule award for an additional two
percent left leg impairment, to run from October 21 to November 30, 2011.
On February 5, 2013 appellant filed a recurrence claim, stating that he stopped work on
February 2, 2013 due to the October 26, 2008 employment injury and did not return. In a
February 5, 2013 report, Dr. Michael P. Rade, a Board-certified surgeon, advised that appellant
was seen for pain and swelling in his left calf. He noted that a Doppler study was negative for
DVT and that there was no real left calf tenderness but swelling and venous stasis dermatitis.
Dr. Rade diagnosed DVT and pain in limb and recommended baby aspirin, elevation, and warm
soaks. In a February 5, 2013 report, Dr. Lorianne E. Avino, an osteopath, noted the negative
Doppler study and examination findings of swelling and erythema of the left ankle. She
diagnosed chronic pain syndrome. On February 11, 2013 Dr. Mary Alice Kelly, a Boardcertified internist, noted the negative Doppler study, she diagnosed pain in soft tissues of limb
and RSD. Regarding work she commented “may leave early and miss day every few weeks; has
been off work since February 2nd for tests and doctor visits.”
By letter dated March 8, 2013, OWCP informed appellant of the type of evidence needed
to support his recurrence claim. In a March 13, 2013 questionnaire, appellant indicated that he
was not on limited duty when he stopped work and that he did not return to work after the
claimed recurrence because the pain and swelling got worse and was debilitating. He submitted
additional medical evidence including February 20, 2013 correspondence in which Dr. Kelly
noted the history of left ankle fracture and DVT. Dr. Kelly indicated that appellant had chronic
left ankle and foot pain and swelling and that he required daily opioid pain medication. She
advised that he had marked local tenderness over the left foot, ankle and Achilles tendon with
noxious hypersensitivity to touch and swelling of the left ankle and distal leg with stasis changes
of the skin. Dr. Kelly noted that appellant walked with a limp due to the ankle fracture and that
he missed work at least one day every two weeks and had to leave early on occasion due to left
leg pain. She diagnosed left ankle fracture, left ankle pain, left leg DVT, left leg postphlebitic
syndrome with swelling, pain in soft tissues of the left leg, and left ankle and foot RSD.
2

A functional capacity evaluation (FCE) was performed on March 4, 2013. It indicated
that appellant did not demonstrate the ability to perform the physical demands required of a truck
driver/unloader but that he had the ability to perform sedentary work, with frequent changes in
position, related to left leg discomfort. On March 5, 2013 Dr. Rade noted that appellant
continued to have complaints of left ankle pain and swelling with negative calf tenderness on
physical examination. On March 12, 2013 Dr. Jennifer Gurske-Deperio, a Board-certified
orthopedic surgeon, noted the history of injury, subsequent surgery and DVT, and appellant’s
complaint of pain in the left lower extremity from the knee into the ankle with chronic swelling.
Physical examination demonstrated diffuse hypersensitivity to touch of the left calf, shin, ankle,
and foot. She diagnosed left leg complex regional pain syndrome, venous hypertension, and
history of DVT. She indicated that appellant was working. In a treatment note dated March 19,
2013, Dr. Avino provided examination findings and diagnosed chronic pain syndrome. On
April 15, 2013 Dr. Kelly reiterated her findings and conclusions.
By decision dated May 14, 2013, OWCP denied appellant’s recurrence claim as the
medical evidence did not establish work stoppage due to the accepted conditions of left ankle
fracture and left DVT. Appellant requested reconsideration on May 30, 2013. In a May 28,
2013 treatment note, Dr. Avino diagnosed RSD secondary to left ankle injury. In reports dated
May 30 and July 30, 2013, Dr. Kelly reiterated her diagnoses of pain in left ankle and foot,
postphlebitic syndrome, pain in soft tissues of limb, and edema. Both physicians indicated that
appellant could not work.
In a merit decision dated August 28, 2013, OWCP denied modification of the prior
decision. On October 21, 2013 appellant, through his attorney, requested reconsideration. In an
October 14, 2013 report, Dr. Avino advised that she had reviewed his medical records and
repeated the history of left ankle fracture and subsequent DVT. She explained that RSD usually
developed after a crush injury or fracture, noting that the pain felt by an RSD patient was
typically out of proportion to the injury suffered. Dr. Avino concluded that, based on appellant’s
history, physical examination findings and his complaint, it was her medical opinion that he
developed RSD as a consequence of the October 2008 left ankle fracture. She indicated that,
clinically he continued to have severe ankle pain, swelling, erythema, edema, allodynia and
hyperalgesia, all objective signs and symptoms of RSD, and that he had no other medical
problems that could account for these signs and symptoms. On November 19, 2013 Dr. Avino
indicated that appellant was to remain off work until January 2014.
On February 6, 2014 OWCP accepted the additional condition of RSD of the left lower
limb. In a separate February 6, 2014 decision, it denied modification of its decision denying
appellant’s claim for a recurrence of disability finding the evidence submitted did not provide
any findings or rationale to support a causal relationship between the claimed recurrence of
disability and the accepted work injury.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment

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that caused the illness.”2 An individual person who claims a recurrence of disability due to an
accepted employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which he or she claims compensation is
causally related to the accepted injury. This burden of proof requires that an employee furnish
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to the employment injury
and supports that conclusion with sound medical reasoning.3 Where no such rationale is present,
medical evidence is of diminished probative value.4
ANALYSIS
The Board finds that appellant failed to establish a recurrence of disability on
February 2, 2013. OWCP initially accepted that he sustained a left ankle fracture and DVT. On
February 6, 2014 it also accepted RSD. In a separate decision that day, OWCP denied
appellant’s claim for a recurrence of disability on February 2, 2013.
In support of his recurrence claim, appellant submitted reports dated February 11 and 20,
2013 in which Dr. Kelly noted physical examination findings of marked local tenderness,
hypersensitivity to touch, swelling and stasis changes in the left foot, and ankle. Dr. Kelly noted
that appellant walked with a limp due to the ankle fracture and diagnosed RSD. She commented
that appellant would have to leave work early and would miss days every few weeks due to pain.
Beginning in May 2013, both Dr. Kelly and Dr. Avino advised that appellant could not work. In
an October 14, 2013 report, Dr. Avino noted that appellant continued to have severe ankle pain,
swelling, erythema, edema, allodynia and hyperalgesia, all objective signs and symptoms of
RSD, and that he had no other medical problems which could account for these signs and
symptoms. On November 19, 2013 she advised that he was to remain off work until
January 2014. Neither physician, however, related the accepted conditions to appellant’s
claimed recurrence of disability. There is no current medical evidence of record explaining how
appellant’s disability beginning February 2, 2013 was causally related to the 2008 work injury.
A physician’s opinion on causal relationship between a claimant’s disability and an
employment injury is not dispositive simply because it is rendered by a physician. To be of
probative value, the physician must provide rationale for the opinion reached.5 Without medical
reasoning showing that the conclusion reached is sound, logical, and rational, the opinions of
Drs. Kelly, Avino, Gurske-Deperio, and Rade regarding appellant’s disability from work are of
diminished probative value.6
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable, and probative
2

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

3

S.S, 59 ECAB 315 (2008).

4

See Ronald C. Hand, 49 ECAB 113 (1997).

5

Thaddeus J. Spevack, 53 ECAB 474 (2002).

6

See E.A., 58 ECAB 677 (2007).

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evidence that the disability for which he or she claims compensation is causally related to the
accepted injury.7 Appellant did not submit sufficient evidence to show that the claimed
recurrence and disability were causally related to the October 26, 2008 employment injury.8
Although OWCP expanded the claim to accept RSD this alone is insufficient to establish that
any particular period of disability is due to this or any other accepted condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish a recurrence of disability on
February 2, 2013.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2014 decision of the Office of
Workers’ Compensation Programs denying a recurrence of disability on February 2, 2013 is
affirmed.
Issued: March 13, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7

Supra note 4.

8

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Port Angeles, WA, Employer
__________________________________________

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

Docket No. 16-0259
Issued: April 22, 2016

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 November 24, 2015 appellant filed a timely appeal of a June 1, 2015 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he contracted
food poisoning on August 5, 2014 causally related to an August 5, 2014 employment incident.
FACTUAL HISTORY
On August 12, 2014 appellant, then a 28-year-old forestry technician (fire), filed a
traumatic injury claim (Form CA-1) alleging that he contracted food poisoning after consuming
1

5 U.S.C. § 8101 et seq.

spoiled food at work on August 5, 2015, causing abdominal pain, diarrhea, nausea, and vomiting.
He stopped work on August 8, 2014 and returned to work on August 10, 2014. Appellant’s
supervisor noted on the claim form that the injury occurred in the performance of duty.
On August 6, 2014 appellant sought treatment at Kittitas Valley Healthcare in Ellensburg,
Washington. In an August 6, 2014 report, Dr. Frank Cruz, Board-certified in family medicine,
noted examining and treating appellant for an acute onset of vomiting, diarrhea, and abdominal
cramps which began the night of August 5, 2014. He diagnosed vomiting, abdominal pain, and
diarrhea, and prescribed medication. An August 6, 2014 report of Dr. John Henderson, a
radiologist, noted that abdominal and pelvic computerized tomography (CT) scans ordered by
Dr. Cruz showed no abnormalities.
By letter dated April 30, 2015, OWCP informed appellant of the deficiencies in his claim
and provided him the opportunity to submit additional evidence, including a narrative medical
report from a physician substantiating that the diagnosis provided was caused or aggravated by a
work incident. Appellant was afforded 30 days to respond. No response was received.
By decision dated June 1, 2015, OWCP denied appellant’s claim as the medical evidence
of record failed to demonstrate that the claimed medical condition was causally related to the
accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish 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 filed within the applicable time
limitation; that an injury was sustained while 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 on a traumatic injury or an occupational disease.4
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 and place, and in the manner alleged. Second, the employee must submit medical
evidence to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
2

Id.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

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

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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.6
ANALYSIS
It is undisputed that on August 5, 2014 appellant was performing forestry technician
duties. It is also undisputed that he was diagnosed with vomiting, abdominal pain, and diarrhea.
However, the Board finds that appellant has not submitted sufficient medical evidence to
establish that his diagnosed conditions were caused or aggravated by the August 5, 2014
employment incident.
Appellant submitted an August 6, 2014 report from Dr. Cruz which noted that appellant’s
vomiting and diarrhea began the night of August 5, 2014. He diagnosed vomiting, abdominal
pain, and diarrhea, and prescribed medication. Dr. Cruz’ report, however, is insufficient to
establish the claim as he did not relate appellant’s diagnosed conditions to the accepted
employment incident. He did not provide a history of the August 5, 2014 work incident, reflect
knowledge of appellant’s work duties that day, or specifically address how appellant’s
employment activities caused or aggravated the diagnosed medical conditions. The Board has
held that medical reports that are based on an incomplete history7 and do not offer an opinion on
causal relationship supported by medical rationale are of diminished probative value.8
Dr. Henderson’s August 6, 2015 CT scan report is also insufficient as it also contains no
opinion as to how appellant’s medical conditions would have been caused or aggravated by the
alleged employment incident.9
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.10 Appellant failed to submit such evidence, and therefore
he has not met his burden of proof to establish a claim for compensation.

6

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

7

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
8

A.D. 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship). Conard Hightower,
54 ECAB 796 (2003) (medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of diminished probative value on the issue of causal relationship).
9

Id.

10

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

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
developed food poisoning causally related to an August 5, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 22, 2016
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cheboygan, MI, Employer
__________________________________________

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

Docket No. 06-824
Issued: January 26, 2007

Case Submitted on the Record

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

JURISDICTION
On March 3, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 8, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a left shoulder condition and resulting
disability commencing March 15, 2005 causally related to a December 17, 2003 employment
injury.
FACTUAL HISTORY
On December 18, 2003 appellant, then a 75-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained right shoulder, arm and hand injuries when he fell
on ice while in the performance of duty on December 17, 2003. He was treated by
Dr. Donald Ramsey, an osteopath, on December 17, 2003. In a report of that date, Dr. Ramsey
indicated that appellant fell with his right hand extended and had right shoulder and wrist pain.

A magnetic resonance imaging (MRI) scan of the right shoulder dated January 2, 2004, revealed
a tear of the rotator cuff. Appellant underwent right shoulder surgery by Dr. Daniel Wilcox, an
orthopedic surgeon, on February 3, 2004. The Office accepted the claim for right rotator cuff
tear and contusion to the right shoulder and wrist.
A physical therapy evaluation, dated February 24, 2004 and signed by Dr. Wilcox on
March 5, 2004, stated that appellant fell on December 17, 2003 and reported “falling into his
right shoulder and with bilateral outstretched upper extremities with increased bilateral shoulder
pain, right greater than left.” The report stated that left shoulder testing was performed and was
consistent with possible glenohumeral anterior capsular disruption, rotator cuff tendinitis and
increased glenohumeral joint laxity. Appellant continued to receive treatment from Dr. Wilcox
for the right shoulder. A July 12, 2004 physical therapy evaluation signed by Dr. Wilcox on
July 30, 2004 reported that appellant continued to have impaired range of motion and muscle
performance in the right shoulder.
In a July 2, 2004 treatment note, Dr. Wilcox stated that appellant continued to have left
shoulder pain that may be secondary to a rotator cuff tear. An MRI scan of the left shoulder
dated July 23, 2004 revealed a partial tear of the rotator cuff. Appellant returned to a light-duty
job at four hours per day on October 12, 2004.
By report dated December 10, 2004, Dr. Wilcox stated that appellant “has bilateral
shoulder degenerative arthritis, which was likely exacerbated by his fall. The fall also likely
resulted in a tear of his rotator cuffs.” Dr. Wilcox stated that appellant intended to have left
shoulder surgery to repair the rotator cuff. In a report dated December 14, 2004, Dr. Roderick
Baltzer, an attending osteopath, stated that in the course of appellant’s fall he injured both
shoulders, the right worse than the left. He stated that attention was initially directed to the right
shoulder, but the left shoulder had progressed to the point that surgery was contemplated.
The Office referred appellant, a statement of accepted facts and medical records to
Dr. Bruce Abrams, an orthopedic surgeon. In a report dated February 19, 2005, Dr. Abrams
provided a history and results on examination. He reported that left shoulder examination
showed extensive degenerative changes, which preexisted the December 17, 2003 fall.
Dr. Abrams opined: “If his fall was as noted in the history, directly on his right side, it is
unlikely that he caused injury to or aggravated the preexisting condition of the left shoulder on
December 17, 2003.”
Appellant had left shoulder surgery on March 15, 2005 and filed a claim for
compensation (Form CA-7) commencing March 15, 2005. The Office determined that a conflict
in the medical evidence existed and referred appellant, together with a statement of accepted
facts and medical records, to Dr. Norman Pollak, a Board-certified orthopedic surgeon. In a
report dated May 20, 2005, Dr. Pollak provided a history and results on examination. He
reviewed medical records stating that there was no mention of left shoulder symptoms until
July 2, 2004. Dr. Pollak reported that medical records indicated that appellant did sustain a right
shoulder injury on December 17, 2003, along with a contusion to the right wrist. He opined:
“There is no documentation in the medical records that a left shoulder injury occurred

2

on December 17, 2003.” Dr. Pollak indicated that he would not rate the permanent impairment
in the left arm as the left shoulder condition was not felt to be secondary to the accepted
employment injury.
By decision dated July 20, 2005, the Office denied appellant’s claim for compensation as
of March 15, 2005. It found that a left shoulder condition had not been established as
employment related.
Appellant requested a hearing, which was held on January 5, 2006. He submitted an
October 25, 2005 report from Dr. Marvin Bleiberg, a Board-certified physiatrist, who provided
examination results, reviewed appellant’s medical history and medical records. Dr. Bleiberg
opined that the pathology in both shoulders, specifically the rotator cuff tears, were causally
related to the fall on December 17, 2003.
In a decision dated February 8, 2006, the hearing representative affirmed the July 20,
2005 decision. The hearing representative found that the weight of the medical evidence was
represented by Dr. Pollak.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 Whether a particular injury causes an employee to be disabled for work and the duration
of that disability, are medical issues that must be proved by a preponderance of the reliable,
probative and substantial medical evidence.3
It is well established that, when a case is referred to a referee examiner for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.4
ANALYSIS
The Office accepted that appellant sustained a right rotator cuff tear in the performance of
duty on December 17, 2003, when he slipped and fell. With respect to a left shoulder injury, it

1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

4

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

3

found that a conflict in the evidence existed under 5 U.S.C. § 8123(a).5 Attending physicians
Drs. Wilcox and Baltzer had supported causal relationship, while Dr. Abrams, a second opinion
physician, opined that there was a preexisting degenerative condition in the left shoulder that was
not aggravated by the December 17, 2003 fall.
The referee physician, Dr. Pollak, opined in his May 20, 2005 report that there was “no
documentation” in the medical evidence that a left shoulder injury occurred on
December 17, 2003. It is not clear, however, whether Dr. Pollak had a complete and accurate
background for this statement. In his review of the medical evidence he stated that there was no
mention of left shoulder symptoms until July 2, 2004. The record transmitted to the Board
contains a February 24, 2004 report, by Dr. Wilcox on March 5, 2004, that reports left shoulder
symptoms, indicated left shoulder testing was performed and stated that the results were
consistent with possible glenohumeral anterior capsular disruption, rotator cuff tendinitis and
increased glenohumeral joint laxity.
Dr. Pollak did not discuss this report in his review of the evidence. Since Dr. Pollak
based his opinion on the lack of “documentation” it is important to confirm that he had a
complete medical background on which to base his opinion. As noted above, to be entitled to
special weight the opinion must be a reasoned opinion based on a proper factual and medical
background. The case will be remanded to the Office to secure a reasoned medical report.6
Dr. Pollak should be provided with all relevant medical evidence and the opinion regarding a left
shoulder injury resulting from the December 17, 2003 fall should discuss the relevant evidence.
After such further development as the Office deems necessary, it should issue an appropriate
decision.
CONCLUSION
The report from Dr. Pollak does not resolve the conflict in the medical evidence
regarding a left shoulder injury and the case is remanded for proper resolution of the conflict.

5

The Act 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 the
examination. 5 U.S.C. § 8123(a). The implementing regulation states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is called a referee
examination and the Office will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).
6

See Roger W. Griffith, 51 ECAB 491 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 8, 2006 and July 20, 2005 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: January 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Arlington, VA, Employer
)
__________________________________________ )
T.B., Appellant

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

Docket No. 20-0158
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On October 28, 2019 appellant filed a timely appeal from an August 22, 2019 merit
decision and an October 10, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). 1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 3

1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted so that he will have an
opportunity to establish his claim. The Board, in exercising its discretion, denies appellant’s request for oral argument
because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral
argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the
oral argument request is denied and this decision is based on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 10, 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
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has established a permanent impairment of a
scheduled member or function of the body warranting a schedule award; and (2) whether OWCP
properly denied appellant’s request for an oral hearing as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 7, 2017 appellant, then a 51-year-old inspector, filed a traumatic injury claim
(Form CA-1) alleging that on January 30, 2017 he sustained a lacerated lower lip when he fell
while in the performance of duty. He stopped work on January 30, 2017.
On January 30, 2019 OWCP accepted the claim for laceration without foreign body of
lip, initial encounter.
On March 1, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a March 12, 2019 development letter, OWCP advised appellant that FECA provided a
schedule award, not to exceed $3,500.00, for serious disfigurement of the face, head, or neck if
such disfigurement was likely to handicap an individual in securing or maintaining employment.
It further provided instructions for submitting photographs of the claimed disfigurement. OWCP
requested that appellant complete an attached disfigurement award application form, and that he
arrange for an attending physician to complete and submit the f orm. No further response was
received.
By decision dated August 22, 2019, OWCP denied appellant’s claim for a schedule award
finding that the evidence of record failed to establish permanent impairment of a scheduled
member or function of the body.
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
By decision dated October 10, 2019, OWCP denied appellant’s request for an oral hearing
as untimely filed. The decision noted that his request dated September 26, 2019, was not made
within 30 days of OWCP’s August 22, 2019 decision. As such, appellant was not entitled to a
hearing as a matter of right. OWCP considered a discretionary hearing, but declined to grant a
hearing, noting that he could instead file for reconsideration and submit new evidence establishing
an employment-related impairment due to his accepted January 30, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.4 To support a schedule award,
the file must contain competent medical evidence which shows that the impairment has reached a
4

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

2

permanent and fixed state and indicates the date on which this occurred, describes the impairment
in sufficient detail so that it can be visualized on review, and computes the percentage of
impairment in accordance with the A.M.A., Guides.5
Section 8107(c)(21) of FECA provides that payment of compensation not to exceed
$3,500.00 may be made for disfigurement of the face, head, or neck which is likely to handicap
the claimant in securing or maintaining employment. 6 OWCP procedures further provide that a
district medical adviser (DMA) will be asked to review such claims and to evaluate the employee’s
disfigurement. If the DMA finds that maximum medical improvement (MMI) has occurred, he or
she will review the photographs submitted along with the medical evidence of record and place a
memorandum in the file describing the disfigurement and stating whether MMI has occurred. If
the DMA finds MMI has occurred, the concurrence of the district director or assistant district
director must be obtained. Following the file review, the district director or assistant district
director will also write a memorandum which contains a description of the disfigurement. 7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award.
As noted above, section 8107(c)(21) of FECA provides that payment of compensation not
to exceed $3,500.00 may be made for disfigurement of the face, head, or neck which is likely to
handicap the claimant in securing or maintaining employment. 8 The Board finds that OWCP
properly followed its procedures in determining that appellant was not entitle d to an award for
facial disfigurement. 9
In a development letter dated March 12, 2019, OWCP advised appellant of the
requirements for a schedule award. However, appellant did not submit medical evidence in

5

B.J., Docket No. 19-0960 (issued October 7, 2019).

6

5 U.S.C. § 8107(c)(21).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see J.S.,
Docket No. 19-1226 (issued December 23, 2019); see L.J., Docket No. 13-0104 (issued October 21, 2013).
8

5 U.S.C. § 8107(c)(21).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010).

3

support of his claim for a schedule award. The Board thus finds that he has not met his burden of
proof.
Appellant may request a schedule award or increased schedule award for his facial
disfigurement at any time based on new medical evidence.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary. 10 Sections
10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a
claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion. 13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s September 26, 2019 request for
an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review; however, this was more than 30 days after OWCP’s
August 22, 2019 decision. 14 Section 8124(b)(1) is unequivocal on the time limitation for
requesting a hearing.15 As such, the request was untimely and appellant was not entitled to an oral
hearing as a matter of right.
The Board further finds that OWCP, in its October 10, 2019 decision, properly exercised
its discretionary authority by noting that it had considered the matter and denied appellant’s request

10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. §§ 10.616, 10.617, and 10.618.

12

Id. at § 10.616(a).

13

J.T., Docket No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L.
Thompson, 51 ECAB 155 (1999).
14

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is illegible, the request will
be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
15

See M.M., Docket No. 19-1171 (issued October 22, 2019); William F. Osborne, 46 ECAB 198 (1994).

4

for an oral hearing as his claim could be equally well addressed through a reconsideration
application.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
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 established facts. 16 The Board finds that the evidence of record does not establish that OWCP
abused its discretion in denying appellant’s request for an oral hearing before an OWCP hearing
representative.17
CONCLUSION
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award. The Board further finds that OWCP
properly denied his September 26, 2019 request for an oral hearing as untimely filed pursuant to 5
U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the October 10 and August 22, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

T.G., Docket No. 19-0904 (issued November 25, 2019); see Daniel J. Perea, 42 ECAB 214, 221 (1990).

17

J.G., Docket No. 19-0555 (issued March 14, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
U.S. POSTAL SERVICE, MAIN OFFICE
WINDOW UNIT, Huntsville, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1247
Issued: December 15, 2011

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 April 26, 2011 appellant, through his attorney, filed a timely appeal from a March 15,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of 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 December 15, 2009.
FACTUAL HISTORY
On January 24, 2010 appellant, then a 57-year-old mail handler, filed a traumatic injury
claim alleging that he was removing computerized forwarding system mail from a postal

1

5 U.S.C. § 8101 et seq.

container on or around December 15, 2009 when a container shelf loosened and struck his head.
He experienced neck and left shoulder pain. Appellant stopped work on January 21, 2010.2
In a July 7, 2010 letter, the employing establishment controverted the claim on the
grounds that appellant failed to provide medical evidence.
OWCP informed appellant in a July 13, 2010 letter that additional evidence was needed
to establish his claim. It gave him 30 days to submit a medical report from a physician
explaining how the alleged December 15, 2009 employment incident contributed to his injury.
Appellant submitted medical evidence. A November 14, 2007 magnetic resonance
imaging (MRI) scan obtained by Dr. Alex C. Chan, a Board-certified diagnostic radiologist,
exhibited mild C3-C7 degenerative disc height narrowing with asymmetric posterior bony
ridging at C5-C6.
In a February 3, 2010 note, Dr. Geetha Scariya, a Board-certified family practitioner,
advised that appellant be placed on modified duty on account of his neck pain.3
On February 23, 2010 Dr. Robert L. Hash II, a Board-certified neurological surgeon,
performed anterior cervical discectomy. In a May 3, 2010 report, he diagnosed cervical
radiculitis, herniated nucleus pulposus, degenerative disc disease and cervicalgia. In response to
a form question asking whether appellant’s condition was due to his employment, Dr. Hash
checked the box indicating that it was “not considered work related.” He released appellant to
full-time duty effective May 10, 2010.4
By decision dated August 23, 2010, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted December 15, 2009 employment incident
caused a neck and left shoulder condition.
Following the August 23, 2010 decision, appellant submitted an August 12, 2010 report
from Dr. Hash detailing that a shelf struck the back of his head at work in January 2010.
Dr. Hash opined that the incident possibly aggravated a preexisting neck condition and
necessitated surgery.
Appellant’s counsel requested a telephonic hearing, which was held on
December 15, 2010. Appellant testified that he previously injured his right shoulder and lower
back in 2007, but was asymptomatic until the December 15, 2009 work event.
By decision dated March 15, 2011, OWCP’s hearing representative affirmed the
August 23, 2010 denial.
2

Appellant added that he received disability compensation from the Department of Veterans Affairs for previous
shoulder and back injuries.
3

On February 5, 2010 appellant requested reassignment to light duty, which the employing establishment
rejected.
4

Appellant also furnished witness statements.

2

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,5
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.6 The employee must 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
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.8
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.9
ANALYSIS
The evidence of record supports that appellant was removing mail from a postal container
when a shelf loosened and struck his head on December 15, 2009. The Board finds, however,
that he did not meet his burden of proof as the medical evidence did not sufficiently establish
that this accepted employment incident was causally related to a neck or left shoulder condition.
In a May 3, 2010 report, Dr. Hash indicated via checkbox response that appellant’s
cervical radiculitis, herniated nucleus pulposus, degenerative disc disease and cervicalgia were
not work related. Subsequently, in an August 12, 2010 report, he retracted his original
conclusion and determined that appellant’s preexisting neck condition was possibly aggravated
sometime in January 2010 when a shelf hit his head while he was on duty. Dr. Hash’s latest
opinion did not adequately establish causal relationship because he failed to explain how the
5

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

6

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

7

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

8

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

9

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

3

December 15, 2009 employment incident pathophysiologically caused or contributed to a neck
or left shoulder injury.10 In addition, it was phrased in speculative terms.11
The remaining medical evidence from Drs. Chan and Scariya offered limited probative
value on the issue of causal relationship as neither physician addressed how appellant’s federal
employment caused or contributed to a neck or left shoulder condition.12 In the absence of
rationalized medical opinion evidence, appellant failed to meet his burden.
Appellant’s counsel contends that the March 15, 2011 decision was contrary to fact and
law. As noted, the medical evidence did not sufficiently establish that the accepted
December 15, 2009 employment incident was causally related to a neck or left shoulder
condition.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on December 15, 2009.

10

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994). The Board notes that
Dr. Hash listed an incorrect date of injury. See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB
1805 (1980) (medical opinions based on an incomplete or inaccurate history are of diminished probative value).
11

Kathy A. Kelley, 55 ECAB 206 (2004); Thomas A. Faber, 50 ECAB 566 (1999) (the use of speculative terms
diminishes the probative value of medical opinion evidence).
12

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 15, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Cleveland, OH,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-329
Issued: November 22, 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 November 23, 2010 appellant filed a timely appeal from an October 21, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective October 21, 2010 on the grounds that he had no further employment-related disability;
and (2) whether it properly terminated his authorization for medical treatment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on February 1, 1991 appellant, then a 53-year-old quality assurance
representative, sustained cervical strain, lumbar sprain, a temporary aggravation of preexisting
spondylolisthesis at L4 and a temporary aggravation of lumbar degenerative disc disease in a
motor vehicle accident. He stopped work on February 1, 1991 and did not return. OWCP paid
appellant compensation for total disability beginning June 9, 1991.
On May 12, 2009 Dr. Blake Thompson, an attending Board-certified physiatrist,
discussed appellant’s history of a motor vehicle accident and diagnosed chronic pain syndrome
and degenerative disc disease of the cervical and lumbar spine. On August 17, 2009 he provided
an additional diagnosis of a neurogenic bladder. Dr. Thompson found that appellant’s disability
status was “permanent and stationary.”
By letter dated November 27, 2009, OWCP referred appellant to Dr. Thomas J. Sabourin,
a Board-certified orthopedic surgeon, for a second opinion examination. On December 14, 2009
Dr. Sabourin reviewed appellant’s history of injury and the medical reports of record. He
diagnosed multilevel degenerative disc disease of the lumbar spine and L4-5 degenerative disc
disease with grade 1 spondylolisthesis at L5-S1. Dr. Sabourin noted that appellant had
experienced a serious motor vehicle accident in the military prior to his work injury which
caused neck and back problems. He found that the conditions resulting from appellant’s
February 1, 1991 work injury had resolved. Dr. Sabourin stated:
“I do feel that the claimant had a temporary aggravation of his lumbar spine
problem, and I feel that it essentially had ceased by 1996 when he was evaluated
by his doctors at that time. I feel that there has been no material changes which
have occurred from [the February 1, 1991] accident and the changes that have
occurred have been due to the natural progression of the underlying degenerative
disc disease originating with his congenital spinal stenosis and the accident in the
1970s.”
On December 22, 2009 OWCP advised appellant of its proposed termination of his
compensation and medical benefits. It found that Dr. Sabourin’s opinion represented the weight
of the evidence and supported that he had no further residuals of his accepted employment
injury.
In a report dated December 23, 2009, received by OWCP on January 14, 2010,
Dr. Thompson provided diagnoses that included chronic pain syndrome, cervical and lumbar
degenerative disc disease, neurogenic bladder, congenital spinal stenosis, grade 1
spondylolisthesis at L4-5 and cervical spondylosis especially at C3 through C6. He opined that
appellant’s condition was permanent and that appellant required additional medical treatment.
OWCP determined that a conflict existed between Dr. Thompson and Dr. Sabourin
regarding whether appellant had further residuals of his February 1, 1991 work injury. It
referred him to Dr. John Serocki, a Board-certified orthopedic surgeon, for an impartial medical
examination. On May 13, 2010 Dr. Serocki discussed appellant’s history of injury and
complaints of back pain radiating down both legs, neck pain radiating into the trapezius and

2

urinary incontinence. He diagnosed status post cervical and lumbar sprains, chronic axial neck
and low back pain with degenerative disc disease and lumbar spondylolisthesis and lumbar
radiculitis. Dr. Serocki discussed appellant’s history of an injury to his back in the 1970s. He
listed findings on examination of diminished tendon reflex in the low back and a positive
straight-leg test. Dr. Serocki disagreed with Dr. Sabourin’s opinion that appellant’s condition
had not materially changed after his February 1, 1991 work injury. He stated:
“First, Dr. Sabourin indicated that he did not find any material change in
[appellant’s] condition as a result of the industrial incident of February 1, 1991.
However, the medical records suggest that there are at least three significant
material changes that did occur as a result of this accident. The first is
[appellant’s] work capacity. Prior to this accident, [he] was working in his usual
and customary job without restrictions. Following the accident, [appellant] was
unable to return to his usual and customary job because of his symptoms and was
ultimately found to [be] permanently partially disabled. The second material
change is the development of chronic axial neck and back pain. There are no
records indicating that [appellant] [was] being treated for neck and back pain prior
to the incident of February 1, 1991, nor is there any evidence that he missed time
from work because of these conditions. Following this accident, there are
multiple medical documents indicating the presence of neck and back pain that
required additional medical treatment and lost time from work. The third material
change is the development of lumbar radiculopathy. This condition has been
documented by multiple medical examiners following [appellant’s] injury. There
is no medical documentation indicating that [he] carried these diagnos[es] prior to
the industrial injury of February 1, 1991. It should be noted that these symptoms
were of such magnitude that surgery was recommended by several physicians as a
means of resolving them after conservative treatment had failed.”
Dr. Serocki also disagreed with Dr. Sabourin’s finding that appellant’s sprains had
resolved as of 1996 as it was “inconsistent with the submitted medical evidence.” He stated, “In
summary, I believe that the medical evidence suggests that [appellant] continues to experience
neck and back pain, as well as lumbar radiculitis, as a result of the industrially-related motor
vehicle accident of February 1, 1991.” Dr. Serocki opined that appellant could perform
sedentary employment. He listed as objective factors supporting that appellant had continued
employment-related disability “loss of motion in the neck and back, tenderness over the neck and
low back, and a positive straight[-]leg raising test on the right.” Dr. Serocki attributed all the
diagnosed conditions to appellant’s work injury and found that he required “supportive care as is
currently being provided by Dr. Thompson.”
On June 18, 2010 OWCP requested that Dr. Serocki clarify his conclusions. It stated:
“Although you have outlined three ‘significant material changes’ including a
change in disability status and work capacity, increased neck and back pain and
the development of radiculopathy, these are not considered material changes in
the claimant’s industrial medical condition based on objective findings and
diagnostic testing results. Furthermore, the absence of medical treatment and or
disability prior to the February 1, 1991 injury does not establish that all medical

3

complaints related to the cervical and lumbar spine after the date of injury are
related to the industrial incident.” (Emphasis in the original.)
OWCP advised Dr. Serocki of the definition of aggravation and asked that he provide his
opinion regarding whether appellant sustained a permanent aggravation. It noted that he found
that appellant had continued pain in his neck and back and lumbar radiculitis due to his
February 1, 1991 motor vehicle accident. OWCP stated:
“It is not clear to [OWCP] how the diagnosis of cervical sprain, lumbar sprain and
lumbar radiculopathy are still actively causing objective findings in light of
[appellant’s] ongoing multilevel lumbar and cervical degenerative disc disease
which was documented at the time of injury[.] Please explain with medical
rationale why you attribute the claimant’s current cervical and lumbar conditions
to the industrial injury rather than the natural progression of his degenerative
condition.”
On August 31, 2010 Dr. Serocki related:
“In your letter of June 18, 2010, you indicated that [OWCP] did not consider
change in work capacity, symptoms of neck pain, or radiculopathy as ‘material
changes.’ If these conditions are not considered to be material changes, then
under the definition of terms utilized by [OWCP], there would be no permanent
aggravation in [appellant’s] underlying condition. In order to document changes
per these definitions, one would have to have a preinjury MRI [magnetic
resonance imaging] scan, an EMG/NCV [electromyogram/nerve condition] study
performed before and after the injury, or a postinjury study showing changes
consistent with acute trauma. These tests do not exist; therefore, under the
definitions adopted by [OWCP], it would not be possible to document an
industrial aggravation of his underlying condition.”
Dr. Serocki asserted that he did not mean to attribute all of appellant’s complaints to his
employment injury as a “significant portion” of his neck and back problems were due to
preexisting degenerative conditions. He stated, “However, using the definitions noted above, it
is not possible to document a permanent aggravation of his preexisting condition arising as a
result of his industrial injury.”
By letter dated September 22, 2010, OWCP requested that Dr. Serocki address whether
appellant had continued residuals of his February 1, 1991 employment injury and whether his
temporary aggravation had ceased. On October 8, 2010 Dr. Serocki asked that OWCP provide
its definition of residuals. In an October 12, 2010 response, OWCP advised that it did not have
an exact definition of “residuals.” It requested that Dr. Serocki explain whether appellant’s
current condition was related to his February 1, 1991 work injury. On October 13, 2010
Dr. Serocki noted that medical records both past and present showed that appellant had
“continued complaints of pain” but did not demonstrate objective findings directly resulting from
the work injury. He stated that, based on OWCP’s definition of aggravation, appellant’s
temporary aggravation ceased in 1996 when a physician found that he had reached maximum
medical improvement.

4

By decision dated October 21, 2010, OWCP terminated appellant’s compensation and
authorization for medical treatment effective October 24, 2010. It based the termination on
Dr. Serocki’s opinion that his temporary aggravation of lumbar degenerative disc disease ceased
by January 10, 1996.
On appeal appellant argues that Dr. Serocki disagreed with Dr. Sebourin’s opinion. He
maintains that his condition changed after the February 1, 1991 work incident.
LEGAL PRECEDENT -- ISSUES 1 & 2
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
Its burden of proof in terminating compensation includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.3 Further, the right
to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.4 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.6 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.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

2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

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

4

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

5

Id.

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

5

ANALYSIS -- ISSUES 1 & 2
OWCP accepted that appellant sustained a sprain of the cervical and lumbar spine and a
temporary aggravation of preexisting L4 spondylolisthesis and degenerative disc disease due to a
February 1, 1991 motor vehicle accident. It paid him compensation for total disability beginning
June 9, 1991. OWCP determined that a conflict arose between Dr. Thompson, his attending
physician, and Dr. Sabourin, who provided a second opinion examination, regarding the extent
of appellant’s employment-related condition and disability. It referred him to Dr. Serocki, a
Board-certified orthopedic surgeon, for an impartial medical examination. On May 13, 2010
Dr. Serocki diagnosed status post cervical and lumbar sprains, chronic axial neck and low back
pain with degenerative disc disease, lumbar spondylolisthesis and lumbar radiculitis. He
attributed the diagnosed conditions to the accepted work injury. Dr. Serocki disagreed with
Dr. Sabourin’s opinion that appellant had not experienced a material change in his condition
subsequent to his employment injury. He explained that after the February 1, 1991 motor
vehicle accident appellant was unable to perform his date-of-injury position, required medical
treatment and developed lumbar radiculopathy. Dr. Serocki also found that his back and neck
sprains had not resolved based on his review of the medical evidence. He opined that appellant
continued to experience pain in his neck and low back and lumbar radiculitis due to his work
injury. Dr. Serocki determined that he could perform sedentary employment.
Dr. Serocki’s opinion was detailed, based on a thorough review of the medical evidence
and findings on examination and supported by medical rationale. OWCP, however, determined
that it required clarification. When it secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from the specialist
requires clarification or elaboration, it has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report.9 OWCP’s request for
clarification, however, must be presented in a neutral manner and observe the distinction
between inappropriate adjudicatory questions and appropriate medical questions.10 On June 18,
2010 it advised Dr. Serocki that alterations in work status, increased pain and radiculopathy did
not constitute material changes in appellant’s condition. However, the issue of whether
appellant’s condition changed subsequent to the work injury is a medical determination for a
physician. Additionally, the issue is not whether he has established a material change in his
condition but rather whether OWCP has met its burden of proof to show that he no longer has
any disability or need for further medical treatment due to his accepted employment injury.
Dr. Serocki addressed the relevant issue and found that he had continuing disability and the need
for medical treatment as a result of his February 1, 1991 motor vehicle accident.
OWCP further informed Dr. Serocki that the absence of medical treatment prior to
appellant’s work injury did not show that all his conditions were work related. Contrary to its
implication, however, Dr. Serocki did not rely solely on the fact that he required medical
treatment after his February 1991 motor vehicle accident in determining that he had continuing
employment-related residuals. He discussed the history of injury, provided subjective and
9

See L.R. (E.R.), 58 ECAB 369 (2007); Phillip H. Conte, 56 ECAB 213 (2004).

10

See Carlton L. Owens, 36 ECAB 608 (1985).

6

objective findings of disability and considered the medical evidence of record in reaching his
conclusions.
In a supplemental report dated August 31, 2010, Dr. Serocki found that under OWCP’s
definition of material change, it would not be possible to show a permanent aggravation without
detailed diagnostic studies before and after the injury. In a report dated October 8, 2010, he
found that, under OWCP’s definition of aggravation, appellant’s condition resolved in 1996.
These reports, however, were predicated on the information provided by OWCP in its June 18,
2010 letter. As the June 18, 2010 letter failed to observe the distinction between adjudicatory
and medical questions, the supplemental reports from Dr. Serocki are insufficient to meet
OWCP’s burden of proof.
Consequently, OWCP improperly terminated appellant’s
compensation and authorization for medical treatment.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
October 21, 2010 on the grounds that he had no further employment-related disability and
condition.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 22, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Deltona, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0080
Issued: May 22, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 13, 2017 appellant, through counsel, filed a timely appeal from August 2 and 3,
2017 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP abused its discretion by denying authorization for
physical therapy; and (2) whether OWCP abused its discretion by denying appellant’s requests for
travel reimbursement.
On appeal counsel asserts that, at the very least, appellant should be compensated for 100
miles of travel to seek medical treatment with his physician.
FACTUAL HISTORY
On July 24, 2014 appellant, then a 55-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that his employment duties caused neck, lower back, right
hip, and bilateral upper and lower extremity injuries. The employing establishment indicated that
appellant had not worked since June 22, 2013, noting that he had been in an off-duty accident prior
to that time.
In support of his claim, appellant, who lived in Deltona, FL, attached a June 10, 2014 report
from Dr. Samy F. Bishai, an orthopedic surgeon with M&R Therapy Center, Inc., (M&R) in
Tampa, Florida. Dr. Bishai diagnosed multiple orthopedic conditions and recommended physical
therapy. Appellant began physical therapy on at least a weekly basis at M&R in July 2014.
On December 29, 2015 OWCP accepted appellant’s claim for adhesive capsulitis of the
left shoulder and bilateral carpal tunnel syndrome. In July 2016 it expanded acceptance of the
claim to include bilateral elbow lesions of ulnar nerve.
Appellant continued treatment with Dr. Bishai. He also had various authorized therapy
treatment modalities done at M&R.3 OWCP periodically approved travel reimbursement.
In correspondence dated December 5, 2016, OWCP notified appellant that physical
therapy, which had been authorized from January 7 to November 26, 2016, had not resulted in
increased function or a decrease in the level of disability, and that further physical therapy was not
authorized. It advised appellant of the type of medical evidence needed to support continued
physical therapy and indicated that if the requested information was not received within 30 days,
a decision would be rendered.
Appellant did not respond, and by decision dated January 17, 2017, OWCP found that
authorization for continued physical therapy was denied as the evidence of record did not support
that it was medically necessary to address the effects of appellant’s employment-related condition.
On January 23, 2017 appellant, through counsel, timely requested a hearing before an
OWCP’s hearing representative.

3
These included acupuncture, massage therapy, and various physical therapy modalities approximately two times
weekly.

2

In correspondence dated January 25, 2017, OWCP advised appellant that, since further
physical therapy had been denied by its January 17, 2017 decision, travel reimbursements for
January 9 and 11, 2017 physical therapy appointments were denied. It further noted that he was
travelling a long distance from his home to his treating physician. OWCP asked that appellant
provide an explanation as to the necessity to travel that far when he should have found a qualified
physician a reasonable distance, considered to be within 50 miles, of his home. It afforded him 30
days to submit additional evidence.
In a February 1, 2017 treatment note, Dr. Bishai indicated that appellant needed additional
therapy and acupuncture treatment because he was having a lot of symptoms in his left shoulder,
forearms, wrists, and hands, and that since he was not considering surgery, the only logical
treatment was with medication and physical therapy. He recommended 12 weeks of additional
physical therapy, two to three times weekly to improve appellant’s chances of returning to gainful
employment.
In a letter dated February 11, 2019, appellant informed OWCP that there was no doctor or
physical therapist who accepted FECA cases locally, and that he had to travel to Tampa, Florida
to find a doctor and for physical therapy appointments.
By decision dated February 27, 2017, OWCP found that appellant’s claims for travel
reimbursements and to his requests to continue to see Dr. Bishai had been denied. It noted that it
had received his February 11, 2019 letter, but indicated that he had not provided any evidence to
support his assertion that there were no qualified physicians who could provide treatment for the
accepted conditions, noting that appellant lived only 30 miles from Orlando, Florida.
On March 8, 2017 appellant, through counsel timely requested a hearing before an OWCP
hearing representative from the February 27, 2017 decision.
A hearing was held on June 22, 2017 regarding both the January 17 and February 27, 2017
OWCP decisions. At the hearing appellant testified that he was not working and was not receiving
wage-loss compensation. He described his symptoms and indicated that prior counsel
recommended Dr. Bishai. Counsel asked that reimbursement for at least 100 miles be considered.
By decision dated August 2, 2017, an OWCP hearing representative affirmed the
January 17, 2017 decision that had denied appellant’s request for authorization of additional
physical therapy. He noted that he reviewed Dr. Bishai’s February 1, 2017 report and found that
he did not provide sufficient explanation as to how the recommended therapy would result in
material improvement of appellant’s accepted conditions.
By decision dated August 3, 2017, the hearing representative also affirmed the
February 27, 2017 decision. He found there was no evidence to establish that there were no
physicians in appellant’s local area from whom appellant could seek treatment. The hearing
representative further found that the record did not support that travel expenses to attend physical
therapy appointments on or after January 9, 2017 were reimbursable.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA 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, or the period of disability, or aid in lessening the amount of monthly compensation.4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of establishing that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.5
Section 10.310(a) of OWCP’s implementing regulations provides that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.6
Its procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets,
exercise bicycles, etc., may be authorized only if recommended by the attending physician and if
OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of disability,
or aid in lessening the amount of monthly compensation.7
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.8 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal.
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of continued physical therapy. The claim was accepted for adhesive capsulitis of the

4

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

5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

20 C.F.R. § 10.310(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3.d(5)
(October 1995); Federal (FECA) Procedure Manual, Part 2 -- Claims, Durable Medical Equipment, Chapter
2.810.17.h (June 2014); D.J., Docket No. 13-1637 (December 2013).
8

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

9

Minnie B. Lewis, 53 ECAB 606 (2002).

4

left shoulder, bilateral carpal tunnel syndrome, and bilateral elbow lesions of the ulnar nerve.
Appellant last worked on June 22, 2013 and has not received wage-loss compensation.
Dr. Bishai initially saw appellant on June 10, 2014 and recommended physical therapy.
Appellant received physical therapy and other modalities of treatment at M&R at least once a week
thereafter.10 The therapy was authorized by OWCP through November 26, 2016. On
November 30, 2016 an additional three months of physical therapy, three times weekly, and three
months of occupational therapy, three times week, were requested.
By decision dated January 17, 2017, OWCP found that authorization for continued
physical therapy was denied as the evidence did not support that it was medically necessary to
address the effects of appellant’s employment-related condition.
Dr. Bishai advised on February 1, 2017 that appellant needed additional therapy and
acupuncture treatment because he was having left shoulder, forearms, wrists, and hands symptoms,
and that, since he was not considering surgery, the only logical treatment was with medication and
physical therapy. He recommended 12 weeks of additional treatment two to three times weekly
to improve appellant’s chances of returning to gainful employment.
The Board finds that Dr. Bishai did not provide a sufficient explanation as to how and why
the continued physical therapy would cure, give relief, reduce the degree or period of disability, or
aid in lessening the amount of monthly compensation.11 The evidence of record does not
substantiate that the previous physical therapy had been curative or provided relief of appellant’s
accepted conditions. OWCP’s obligation to pay for medical treatment under section 8103 of
FECA extends only to treatment of employment-related conditions.12
For these reasons, OWCP did not abuse its discretion in denying appellant’s request to
authorize continued physical therapy. It explained that the medical evidence submitted provided
insufficient explanation for the necessity of continued physical therapy. The Board finds that it
was not unreasonable for OWCP to deny authorization for continued physical therapy.13
LEGAL PRECEDENT -- ISSUE 2
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies.14 To determine a reasonable travel distance, it will consider the availability
of services, the employee’s condition, and the means of transportation. Effective August 29, 2011,
the most recent regulations provide that a round-trip distance of up to 100 miles is considered a
10

Supra note 3.

11

Supra note 5.

12

See D.J., Docket No. 13-1637 (issued December 16, 2013).

13

B.J., Docket No. 17-1825 (issued February 23, 2018).

14

20 C.F.R. § 10.315(a).

5

reasonable distance to travel.15 If round-trip travel of more than 100 miles is contemplated, or air
transportation or overnight accommodations will be needed, the employee must submit a written
request to OWCP for prior authorization with information describing the circumstances and
necessity for such travel expenses. OWCP will approve the request if it determines that the travel
expenses are reasonable and necessary and are related to obtaining authorized medical services,
appliances, or supplies.16
Pursuant to FECA Bulletin No. 14-02 (issued January 29, 2014), when a claimant submits
a travel reimbursement in excess of 100 miles for a single date of service, the bill will automatically
be suspended, and the Central Bill Processing provider will send notification to OWCP’s claims
examiner.17 FECA Bulletin No. 14-02 notes that in some limited circumstances it may be
necessary for a claimant to travel more than 100 miles on a regular basis, such as when the claimant
lives in a remote area.18
In interpreting this section, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA.19 The only limitation on OWCP’s authority is that of
reasonableness. OWCP may authorize medical treatment, but determine that the travel expense
incurred for such authorized treatment was unreasonable or unnecessary.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion in denying appellant’s requests for
travel reimbursement. 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 unreasonable or
unnecessary, as in this case.21
The record reflects that at the time appellant began treatment with Dr. Bishai, he lived in
Deltona, FL, approximately 119 miles each way from Dr. Bishai’s office in Tampa, Florida.22 He
has not shown that treatment with Dr. Bishai was reasonable and necessary. Although appellant
maintained that he could not get medical treatment closer than in Tampa, Florida, appellant’s
residence at the time in Deltona, Florida was approximately 40 miles from Orlando, Florida.

15

Id.

16

Id. at § 10.315(b).

17

FECA Bulletin No. 14-02 (issued January 29, 2014).

18

Id.

19

M.B., Docket No. 17-1072 (issued August 16, 2017).

20

W.M., 59 ECAB 132 (2007); see also M.B., Docket No. 17-1072 (issued August 16, 2017).

21

Id.

22

Appellant has now moved to New Smyrna Beach, Florida, approximately 165 miles from Tampa, Florida.

6

OWCP regulations provide that, generally, a round trip of up to 100 miles is a reasonable
distance to travel.23 There may be circumstances where travel reimbursement of more than 100
miles is appropriate. An example of those circumstances might be an appellant who lives in a
remote area with limited medical services and physicians of an appropriate specialty.24 Appellant
does not live in a remote area. To establish that a travel reimbursement of more than 100 miles is
warranted OWCP regulations indicate that the claimant must provide information describing the
circumstances and necessity for such travel expenses. Appellant has not provided evidence to
explain the necessity of traveling 119 miles each way to Tampa, Florida to seek care and why such
travel is reasonable. While he maintained that no care was available locally, he provided no
evidence to establish a lack of available services closer to his home or a specific need for the
distances for which he was requesting authorization for reimbursement.25
Although OWCP had authorized travel expenses for appellant to see Dr. Bishai in the past,
this past practice does not establish a right to continuing authorization.26 As indicated in FECA
Bulletin No. 14-02, any travel reimbursement request of more than 100 miles was to be reviewed
by an OWCP claims examiner.27
OWCP has broad discretion in considering whether to reimburse or authorize travel
expenses.28 As the only limitation on its 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 deduction from known facts.29 The
Board finds that OWCP did not abuse its discretion in denying appellant’s travel reimbursement
requests. No probative evidence was presented with respect to the necessity of travel over the 100mile round-trip standard set forth in OWCP regulations or that OWCP abused its discretion in
denying reimbursement for travel expenses. OWCP has administrative discretion with respect to
authorization of travel reimbursement.30 The expenses appellant incurred for travel between his
home in Deltona, Florida and his treating physician in Tampa, Florida beyond the 100-mile roundtrip limit must be considered personal to him.31

23

20 C.F.R. § 10.315(a).

24

Id. at § 10.315(b).

25

See M.M., Docket No. 15-1724 (issued February 16, 2016).

26

See W.H., Docket No. 14-1662 (issued February 3, 2015).

27

Supra note 17.

28

Supra note 19.

29

See J.J., Docket No. 10-1908 (issued June 16, 2011).

30

Supra note 19.

31

See W.J., Docket No. 10-1944 (issued June 1, 2011).

7

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 properly exercised its discretion in denying authorization for
additional physical therapy and in denying appellant’s requests for travel reimbursement.
ORDER
IT IS HEREBY ORDERED THAT the August 3 and 2, 2017 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: May 22, 2018
Washington, DC

Christopher J. Godfrey, 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

8