United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1110
Issued: November 9, 2016

Case Submitted on the Record

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

JURISDICTION
On May 2, 2016 appellant, through counsel, filed a timely appeal from a January 25,
2016 merit decision 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.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the January 25, 2016 decision.
However, since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D.
Pruitt, 57 ECAB 126 (2005).

ISSUE
The issue is whether appellant met her burden of proof to establish that her alleged
cervical, lumbar and shoulder conditions were causally related to factors of her federal
employment.
FACTUAL HISTORY
This case has previously been before the Board.4 In a decision dated May 15, 2015, the
Board found that appellant had not met her burden of proof to establish that her alleged cervical,
lumbar, and bilateral shoulder conditions were causally related to factors of her employment.
The Board determined that the medical evidence submitted lacked medical rationale sufficient to
demonstrate that her diagnosed conditions resulted from her federal employment. The facts and
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference. The facts relevant to this appeal are set forth below.
On August 28, 2013 appellant, then a 37-year-old parcel post machine operator, filed an
occupational disease claim (Form CA-2) alleging that she sustained “other disorders due to
repeated trauma.” She first became aware of her condition and realized it resulted from her
employment on July 29, 2013. Appellant indicated that she was last exposed to the elements that
allegedly caused her condition on August 20, 2013. She worked modified duty beginning
August 29, 2013. In an attached statement, appellant related that she sustained a work-related
injury due to heavy lifting, processing mail, lifting over her shoulders, removing trays from
containers, and putting mail in the trays.
Appellant underwent various diagnostic examinations. In a July 29, 2013 magnetic
resonance imaging (MRI) scan of the lumbar spine, Dr. Mohammad I. Jilani, a Board-certified
diagnostic radiologist, who specializes in neuroradiology, observed central L5-S1 disc herniation
and L4-5 disc bulge. In his review of an August 19, 2013 MRI scan of the cervical spine,
Dr. Noam S. Eshkar, a Board-certified diagnostic radiologist specializing in neuroradiology,
reported focal central disc herniation at C3-4 and C4-5, broad-based left paracentral disc
herniation at C6-7, and disc bulging at C5-6.
Dr. Rosa M. Neno, a Board-certified internist, initially examined appellant and in a
September 13, 2013 report noted that she treated appellant for cervical radiculopathy, intractable
neck and mid-back pain, and herniated discs of the cervical and lumbar spine. She related that
appellant’s medical condition occurred due to working at the employing establishment lifting
heavy boxes, bags, and parcels, and “keying” every day for the past 15 years. Dr. Neno
requested that appellant be excused from work.
Appellant was also examined by Dr. Mark A.P. Filippone, Board-certified in physical
medicine and rehabilitation, who discussed in reports dated September 27 to November 8, 2013
that appellant worked as a clerk for the employing establishment since 1994 and was injured at
work. He related that appellant experienced low back, neck, and left shoulder pain as well as
numbness and tingling into the right upper extremity. Upon examination, Dr. Filippone observed
4

Docket No. 15-607 (issued May 15, 2015).

2

pain, guarding, and spasm in the cervical paraspinals and suboccipital musculature and pain,
guarding, and spasm in the lumbar paraspinals. Examination of the upper extremities revealed
pain on palpation over the anterior aspect of both shoulders and limitation of terminal
glenohumeral abductions bilaterally with pain and impingement in the shoulders. Dr. Filippone
diagnosed cervical radiculitis, internal derangement of both shoulders, and lumbosacral
radiculitis. He provided various attending physician’s reports dated September 27, 2013 to
May 7, 2014, which indicated that appellant was totally disabled.
In a decision dated November 20, 2013, OWCP denied appellant’s occupational disease
claim finding that she had not established fact of injury. It determined that appellant had not
sufficiently described the factors of employment that she believed caused her medical conditions
and had failed to submit sufficient medical evidence to establish a diagnosed condition causally
related to factors of her employment.
On December 3, 2013, through counsel, OWCP received a request for a hearing before an
OWCP hearing representative. A hearing was held on May 22, 2014. Appellant described in
detail the various positions she held at the employing establishment and the physical
requirements of each position. She noted that many of her employment duties involved
repetitive lifting and twisting of her back and repetitive use of her arms. Appellant stated that in
2000 she began to experience pain in her lower back and was eventually diagnosed with a
bulging disc and minimal herniation. She described the medical treatment and various diagnostic
examinations that she underwent. Appellant noted that she continued to work, which involved
the same repetitive duties. In September 2013, the pain became so severe that she made an
appointment with Dr. Neno. Counsel noted that appellant performed a lot of repetitive work,
including sorting mail, processing mail, and working on sorting machinery from 1994 to 2013.
He contended that the various medical reports supported causal relationship.
Dr. Filippone continued to treat appellant, and in reports dated December 6, 2013 to
June 13, 2014, related appellant’s continued complaints of numbness and tingling in the upper
and lower extremities. He noted that appellant’s physical examination findings were unchanged.
Dr. Filippone reported that appellant’s symptoms had continued over the past 10 years,
especially when she attempted to do any repetitive activities which were an essential part of her
job. He reviewed appellant’s employment duties as a parcel post distribution clerk and noted
that the job required repetitive movements of the neck, shoulders, upper extremities, and mid and
low back. Dr. Filippone diagnosed disc herniation at C3, C4, and C6, disc bulging at C5, central
L5-S1 disc herniation, L4 disc bulge, and internal derangement of both shoulders. He opined
that “the aforementioned abnormalities are directly and solely the result of the injury sustained
while at work.”
In reports dated December 17, 2013 to March 3, 2014, Dr. Neno indicated that she had
treated appellant since 2000 for complaints of neck, shoulder, and back pain, which had
worsened over time. She reported that appellant’s studies revealed herniated discs in both the
cervical and lumbar spine and suffered from herniated discs in both the cervical and lumbar
spine. Dr. Neno opined that appellant’s current medical condition had developed and was a
direct cause of her working at the employing establishment lifting heavy boxes and bags, parcels,
and being hunched over a computer keyboard “keying” in data daily over the past 15 to 16 years.

3

By decision dated August 5, 2014, an OWCP hearing representative affirmed the
November 20, 2013 denial decision with modification. She accepted that appellant’s job
required repetitive movement of her back and upper extremities, but denied the claim finding
insufficient medical evidence to establish a diagnosed condition causally related to her
employment duties.
On November 3, 2014 OWCP received appellant’s request, through counsel, for
reconsideration. He reported that he was providing additional medical reports by Dr. Filippone
which had additional medical reasons for his conclusion that appellant developed shoulder, neck,
and back conditions as a result of her employment.
In an August 15, 2014 report, Dr. Filippone indicated that appellant’s medical history and
review of systems remained unchanged. He noted appellant’s complaints of neck pain, bilateral
low back pain, and bilateral shoulder pain. Upon examination, Dr. Filippone observed pain,
guarding, and spasm in the cervical paraspinals bilaterally, right more than left, and in the lumbar
paraspinals and right sciatic notch. He opined that “all of the above is workers’ compensation
caused solely.”
By decision dated November 7, 2014, OWCP denied modification of the August 5, 2014
decision. It found that the medical evidence of record failed to establish that appellant sustained
an occupational disease as a result of her employment.
Appellant appealed to the Board. In a May 15, 2015 decision, the Board affirmed
OWCP’s November 7, 2014 denial decision. It determined that the medical evidence of record
was insufficient to establish appellant’s occupational disease claim.5
On October 28, 2015 OWCP received appellant’s request, through counsel, for
reconsideration. Counsel indicated that he was enclosing additional reports from Drs. Filippone
and Neno, which supported appellant’s occupational disease claim.
In narrative reports dated May 15 to November 18, 2015, Dr. Filippone related
appellant’s continued complaints of numbness in her hand and cervical, lumbar, and bilateral
shoulder pain. He indicated that appellant’s history was unchanged and that she reported no
interval or intercurrent history of trauma or injury. Dr. Filippone noted that a June 12, 2015 MRI
scan of the cervical spine revealed very abnormal findings, including posterior disc herniation at
C3 and C4 and left paracentral posterior disc herniation at C5 and C6. Upon examination,
Dr. Filippone observed pain, guarding, and spasm in appellant’s cervical and lumbar paraspinals
and pain in the right shoulder. He noted that central and peripheral neurologic examinations and
manual muscle testing were changed. Dr. Filippone reported positive right shoulder Neer’s and
Hawkin’s impingement signs. In the June 23, 2015 report, he indicated that electromyogram
(EMG) and nerve conduction velocity (NCV) studies that he performed revealed an abnormal
needle EMG examination and indicated bilateral L5-S1 lumbosacral radiculopathy.
Dr. Filippone opined that “all of the above is directly and solely the result of the injuries
sustained while at work for the U.S. Post Office.” He further explained that these symptoms had
developed while working on the LMBC processing mail and parcels innervating a lot of keying,
5

Supra note 4.

4

trunk rotation, and bending in that activity as well as her other activities as a postal clerk working
on the OCR, BCS, DBCS and pouching mail, all of which involves repetitive activities of the
low back. Appellant’s cervical complaints are also consistent with the repetitive injuries
involved in her work as a postal clerk since 1994.” Dr. Filippone provided a worksheet of
EMG/NCV study findings, as well as handwritten notes pertaining to appellant’s physical
examination.
Dr. Filippone further clarified in his July 23, 2015 that he reviewed appellant’s job
description as provided by her attorney and hundreds of pages of U.S. Government internet sites
pertaining to job descriptions and equipment specifications. He provided weight and height
specifications of the equipment that appellant used at work. Dr. Filippone noted that appellant
stood at 5’2 – ½,” which was lower than the top of the postcon at 69 inches high. He explained
that appellant worked repetitively between the scale, the hamper, and the postcon for 120
minutes. Dr. Filippone reported that appellant had to fill five to seven postcons per hour. He
related that, according to the employee handbook, a postcon weighed 240 pounds empty and up
to 1,200 pounds loaded. Dr. Filippone calculated that appellant lifted between 2,880 and 6,720
pounds per hour. He related that in 2008 appellant began to work as a mail processor/backup
keyer, which required processing Priority and First Class and International Mail. Appellant
described that she lifted sacks of mail weighing 20 pounds or more from the postcons, weighed
the sacks, and placed the sacks in the hampers for separation. She claimed that she did eight or
more postcons of sacks in an hour, which contained about 10 bags. Dr. Filippone indicated that
appellant also worked as a parcel post distribution clerk and lifted military sacks weighing up to
50 pounds and placed them on a scale about 18 inches off the floor. He related that appellant
was lifting 13,400 pounds over a two-hour period, going between the scale, the hamper, and the
postcons. Dr. Filippone also noted that the postcons on the top shelf were higher than appellant’s
head. Therefore appellant had to perform duties which involved bending down to the scale,
lifting up to the hamper, down and out of the hamper, in and out of the postcons.
Dr. Filippone explained:
“[Appellant] blew out the herniated dis[c]s causing the cervical radiculopathy
(723.4) and shredded the shoulder (718.91) and blew out the thoracic lumbosacral
disks causes (724.4) as the result of over-using the hands, elbows, shoulders, and
neck both in lifting, bending, extending the neck, low back, and at fast pace
without the body’s ability to relubricate itself and heal itself … the setting of her
workplace involved constant bending, rotation of the knees, mid back, low back,
and upper extremities, and the reaching on a repetitive basis above the level of her
head loading the top shelf of the postcon shelf more than explains the injury to the
neck, shoulders, mid back, and low back.”
Dr. Filippone noted that appellant remained totally disabled.
In a September 10, 2015 report, Dr. Neno opined that appellant was totally and
permanently disabled from injuries that she sustained at work while lifting heavy bags, repetitive
rapid bending of heavy loads, and pushing heavy loads without any proper rest time. She noted
that appellant’s symptoms and diagnostic findings confirmed this. Dr. Neno indicated that she
agreed with Dr. Filippone’s July 23, 2015 report.

5

Dr. Filippone diagnosed, in October 22, 2015 attending physician and duty status reports,
cervical radiculopathy, lumbar radiculopathy, and derangement of the right shoulder. He
checked a box marked “yes” that appellant’s condition was caused or aggravated by the
described employment activity. Dr. Filippone indicated that appellant was totally disabled.
In a decision dated January 25, 2016, OWCP denied modification of the May 15, 2015
decision. It determined that Dr. Filippone’s reports lacked a well-reasoned medical explanation
of how appellant’s work activities caused her cervical, lumbar, and bilateral shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.7 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.10
ANALYSIS
Appellant alleges that she sustained cervical, lumbar, and upper extremity conditions due
to the repetitive use of her upper extremities as a parcel post machine operator. OWCP accepted
the factors of appellant’s employment, but it denied her claim finding that the medical evidence
failed to establish that her diagnosed conditions were causally related to her employment. The
Board finds, however, that this case is not in posture for decision and requires further
development regarding whether appellant sustained cervical, lumbar, and shoulder conditions
causally related to employment factors.
6

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

7

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
8

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

6

Along with her October 28, 2015 reconsideration request, appellant submitted additional
medical reports from Dr. Filippone. In reports dated May 15 to November 18, 2015,
Dr. Filippone reviewed appellant’s work duties in detail and described the physical requirements
of her positions as a keyer, parcel post distributer, and mail processor clerk. He provided
physical examination findings and discussed appellant’s diagnostic examination results.
Dr. Filippone diagnosed cervical radiculopathy, lumbar radiculopathy, and derangement of the
right shoulder. He consistently opined that appellant’s injuries were “directly and solely the
result of the injuries sustained while at work for the U.S. Post Office.” Dr. Filippone noted that
the duties of keying information, rotating his trunk, and bending required repetitive use of
appellant’s cervical and lumbar spine and appellant’s right shoulder. He described how
appellant’s job duties affected her physically. The Board notes that Dr. Filippone’s July 23,
2015 report provided a detailed description of appellant’s job duties at the employing
establishment, the machines that she used, and the strain that appellant’s employment duties took
on her cervical spine, lumbar spine, and upper extremities.
Accordingly, the Board finds that Dr. Filippone’s reports, when read together, identified
specific employment factors which appellant claimed caused her condition, identified physical
examination and diagnostic findings, and explained how the identified employment factors
caused or contributed to her cervical, lumbar, and bilateral shoulder conditions. He reiterated his
opinion on causal relationship in various reports.
The Board finds that Dr. Filippone’s opinion, while not sufficiently rationalized to meet
appellant’s burden of proof, is sufficient, given the absence of any opposing medical evidence, to
require further medical development of the record.11 In addition, Dr. Neno’s reports dated
September 13, 2013 March 3, 2014 also provide an affirmative opinion regarding causal
relationship.
It is well established that proceedings under FECA are not adversarial in nature12 and
while appellant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice
is done.14 The case, therefore, will be remanded to OWCP for further action consistent with this
decision. On remand, after such further development of the case record as OWCP deems
necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that the case is not in posture for a decision.

11

See A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).
12

See e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978);
William N. Saathoff, 8 ECAB 769, 770-71 (1956).
13

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

14

William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

7

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for additional development
consistent with this decision.
Issued: November 9, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1331
Issued: November 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 2, 2008 appellant timely appealed the January 18, 2008 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.1
ISSUE
The issue is whether appellant sustained permanent impairment due to her accepted
conditions.

1

The record on appeal contains evidence that was received after the Office issued its January 18, 2008 decision.
The Board may not consider evidence that was not in the case record when it rendered its final decision. 20 C.F.R.
§ 501.2 (2008).

FACTUAL HISTORY
Appellant, a 44-year-old mail handler, has an accepted claim for cervical, thoracic,
lumbar and right shoulder strains which arose on February 4, 1999. She was placing a mail sack
in an over-the-road (OTR) container when her foot slipped on a piece of mail lying on the floor.
Appellant injured her back and right upper extremity. She stopped work on the day she was
injured.
Appellant received continuation of pay followed by appropriate wage-loss
compensation.
The Office placed her on the periodic compensation rolls beginning
May 23, 1999. Effective June 18, 2000, it terminated appellant’s wage-loss compensation
because her injury-related disability had ceased.2 The Office later expanded appellant’s claim to
include lumbar intervertebral disc displacement and lumbosacral radiculitis as accepted
conditions.
On October 23, 2006 appellant filed a claim for a schedule award. In a report dated
October 19, 2006, Dr. Robert Chouteau diagnosed traumatic lumbar myositis, bilateral sacroiliac
joint dysfunction, L4-5 disc herniation, and L5-S1 disc bulge with right leg radiculopathy. He
found 35 percent impairment of the lower extremity due to loss of motion in the right hip.
Dr. Chouteau found an additional 2 percent impairment for loss of motion in the right ankle, for
a total right lower extremity impairment of 37 percent.
In a December 20, 2006 report, Dr. H. Mobley, an Office medical adviser, recommended
referring appellant to a Board-certified physiatrist familiar with preparing impairment ratings
under the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001). He believed that Dr. Chouteau’s October 19, 2006 impairment rating was not
accurately based upon appellant’s accepted conditions.
On January 29, 2007 Dr. Chouteau provided another impairment rating. He found 10
percent impairment of the right lower extremity due to motor and sensory deficits involving the
L5 nerve root distribution.
The Office referred appellant to Dr. John A. Sklar, a Board-certified physiatrist, who
examined her on March 1, 2007. In a March 5, 2007 report, Dr. Sklar found two percent
impairment of the right upper extremity due to pain. He also noted there was decreased motion
in the right shoulder. However, the loss in range of motion was inconsistent over the course of
his examination. Therefore, Dr. Sklar could not rate this particular impairment. As to
appellant’s left upper extremity, he found one percent impairment for pain. With respect to her
lower extremities, Dr. Sklar found three percent impairment due to pain in the right lower
extremity and one percent impairment for pain in the left lower extremity. He indicated that
appellant’s chronic upper and lower back pain, as well as her extremity pain “might well be
diagnosed as fibromyalgia,” which is a nonwork-related condition.3

2

The Office based its decision on the April 25, 2000 report of Dr. Bernie L. McCaskill, a Board-certified
orthopedic surgeon and impartial medical examiner.
3

Dr. Sklar referenced Dr. Chouteau’s October 19, 2006 impairment rating, but no mention was made of the 10
percent right lower extremity rating Dr. Chouteau provided on January 29, 2007.

2

On May 1, 2007 Dr. Mobley, reviewed Dr. Sklar’s March 5, 2007 report. He concurred
with the pain-related impairments involving both upper extremities; but in view of Dr. Sklar’s
reference to fibromyalgia as the possible cause of appellant’s pain, Dr. Mobley opined that
appellant’s bilateral upper extremity impairment was not the result of her 1999 employment
injury. Dr. Mobley did not comment on appellant’s bilateral lower extremity impairment as
identified by Dr. Sklar in his March 5, 2007 report. Additionally, he did not review
Dr. Chouteau’s January 29, 2007 impairment rating.
By decision dated May 31, 2007, the Office denied appellant’s claim for a schedule
award. It based its decision on Dr. Mobley’s May 1, 2007 opinion. The Office, however, mailed
the decision to an incorrect address and it was later returned as undeliverable. It reissued the
decision on September 13, 2007. In the interim, appellant submitted a June 28, 2007 impairment
rating from Dr. Louis D. Zegarelli.4 He diagnosed chronic mechanical lumbosacral dysfunction
with L4 sensory dysfunction on the right. Dr. Zegarelli found no impairment with respect to
appellant’s upper extremities. As to her right lower extremity, he found six percent impairment
due to sensory abnormality at the L4 level, which involved the common peroneal and superficial
peroneal nerves. There was no evidence of motor function deficit. Dr. Zegarelli advised that
appellant reached maximum medical improvement on October 19, 2006. The September 13,
2007 decision did not address his findings, but merely reiterated verbatim the content of the
May 31, 2007 schedule award decision.
Appellant requested reconsideration on November 14, 2007. She submitted an unsigned
medical report dated October 23, 2007 from Metroplex Orthopedics5 and a copy of
Dr. Zegarelli’s June 28, 2007 impairment rating.
In a January 18, 2008 decision, the Office denied modification. It found that appellant
submitted an unsigned medical report dated October 23, 2007 which did not address permanent
impairment. The Office found that appellant did not submit sufficient medical evidence to
establish permanent impairment. It did not discuss or otherwise mention Dr. Zegarelli’s June 28,
2007 impairment rating and Dr. Chouteau January 29, 2007 rating.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.6 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,

4

The Office received Dr. Zegarelli’s report on August 28, 2007.

5

Although the author of this particular report was not identified, the record indicates that Dr. Chouteau is
affiliated with Metroplex Orthopedics.
6

5 U.S.C. § 8107(c) (2000).

3

Guides, as the appropriate standard for evaluating schedule losses.7 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).8
ANALYSIS
The Board’s jurisdiction over a case is limited to reviewing the evidence that was before
the Office at the time of its final decision.9 As the Board’s decisions are final with regard to the
subject matter appealed, it is crucial that the Office consider all relevant evidence that was
properly submitted prior to the time of issuance of its final decision.10 In the January 18, 2008
decision, the Office referenced the October 23, 2007 unsigned medical report as the only
evidence relevant to her November 14, 2007 request for reconsideration. However, appellant
also submitted Dr. Zegarelli’s June 28, 2007 impairment rating. Whether it receives relevant
evidence on the date of the decision or several days prior, such evidence must be considered.11
The Office failed to address all relevant evidence received in the January 18, 2008 decision. The
case is remanded for a proper review of the evidence and issuance of an appropriate final
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

7

20 C.F.R. § 10.404.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

9

20 C.F.R. § 501.2(c).

10

20 C.F.R. § 501.6(c); see William A. Couch, 41 ECAB 548, 553 (1990).

11

Willard McKennon, 51 ECAB 145 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the January 18, 2008 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further consideration
consistent with this decision.
Issued: November 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2182
Issued: May 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 1, 2009 appellant filed a timely appeal from a July 8, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim for a left elbow condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant sustained a left elbow condition in the performance of
duty.
FACTUAL HISTORY
On August 22, 2008 appellant, then a 41-year-old correctional officer, filed an
occupational disease claim alleging that he sustained an injury to his left elbow caused by his
job. He first became aware of his condition on July 15, 2008. On November 1, 2004 appellant
chipped a bone in his left elbow while pushing and pulling food carts with rusted wheels.

Repetitive shooting of firearms to pass annual qualification tests caused pain in his left elbow.
Appellant also experienced locking of his elbow.
On September 15, 2008 the Office asked appellant to provide additional evidence,
including a detailed description of his employment activities and a comprehensive medical report
including a rationalized medical opinion as to whether his left elbow condition was caused or
aggravated by his employment.
In an April 21, 2008 report, Dr. Kevin J. Rossi, a family practitioner, provided findings
on physical examination and diagnosed arthralgia of the left upper arm. He noted that appellant
had experienced left elbow pain for six months. Appellant had a similar problem in 2004 and
was considering surgery at that time. An April 28, 2008 x-ray revealed mild degenerative
changes in the elbow joint. There was no evidence of any focal lesion or injury. On May 8,
2008 Dr. James P. Patterson, an orthopedic specialist, provided findings on physical examination
and diagnosed left elbow arthritis and a loose body. He noted that appellant experienced acute
left elbow pain three or four years previously at work when he pushed and pulled a rolling cart.
The condition was aggravated by motion and lifting. Surgery was recommended at that time but
not performed. A June 2, 2008 magnetic resonance imaging (MRI) scan revealed effusion of the
left elbow joint associated with several ossified loose bodies. There was no synovial
hypertrophy, bony erosion or abnormality of the bone marrow. On July 16, 2008 appellant
underwent left elbow arthroscopic surgery, including debridement, osteophyte resection,
capsulectomy, synovectomy and loose body removal.
By decision dated December 3, 2008, the Office denied appellant’s claim, finding that the
evidence did not establish that his left elbow condition was causally related to factors of his
federal employment.
Appellant requested a hearing with an Office hearing representative that was held on
April 21, 2009.
Additional medical evidence was submitted following the hearing. In an April 17, 2009
report, Dr. Rossi stated that he treated appellant on November 1, 2004 for a left elbow condition
sustained while pushing a food cart at work. Physical findings at that time included tenderness
in the biceps insertion and decreased range of motion secondary to pain. X-rays revealed a
positive fat pad sign and he was treated for a possible occult fracture. Dr. Rossi noted that
appellant’s left elbow condition improved but appellant believed his current left arm condition
was related to the injury four years earlier. He stated that his review of medical records seemed
to indicate that there was initial trauma to the left elbow in November 2004 and x-rays then were
consistent with a possible fracture. Subsequent x-rays revealed loose bodies which could have
occurred from the previous injury. Dr. Rossi opined that appellant’s left elbow condition was
causally related to the November 2004 left elbow injury.
On April 22, 2009 Dr. Artis Woodward interviewed appellant and reviewed his medical
records. He stated that he treated appellant from November 1, 2004 to March 30, 2005 for a left
elbow injury sustained at work while pushing a food cart. An orthopedic specialist
recommended arthroscopic surgical repair but appellant declined. Appellant was returned to
modified work duties to include no pushing, pulling or climbing. Dr. Woodward noted that,

2

since his return to work, he repeatedly pushed food carts, climbed ladders for security checks and
participated in firearms qualification tests. He stated that it appeared medically evident that
appellant’s November 1, 2004 injury and the continuation of the same work activities led to the
need for surgical intervention in 2008.
In an April 24, 2009 statement, Demetrio Alford, an employing establishment safety
officer, stated that on November 1, 2004 appellant injured his left elbow at work. He submitted a
traumatic injury claim under OWCP File No. xxxxxx165 that was accepted for a left elbow
strain. Appellant was off work from November 1 to December 18, 2004.
By decision dated July 8, 2009, an Office hearing representative affirmed the
December 3, 2008 decision.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.1 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.2
ANALYSIS
On May 8, 2008 Dr. Patterson diagnosed left elbow arthritis and a loose body. He noted
that appellant experienced acute left elbow pain three or four years previously at work when he
pushed and pulled a rolling cart. Surgery was recommended at that time but not performed. A
June 2, 2008 MRI scan revealed effusion of the left elbow joint associated with ossified loose
bodies. On July 16, 2008 appellant underwent left elbow arthroscopic surgery. Dr. Patterson did
not provide a description of appellant’s work activities or a rationalized explanation as to how
his job caused or aggravated his left elbow condition. His report is not sufficient to establish that
appellant’s left elbow condition and surgery in 2008 was causally related to his federal
employment.

1

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

On April 21, 2008 Dr. Rossi noted that appellant had experienced left elbow pain for six
months. He did not opine as to the cause of the condition. On April 17, 2009 Dr. Rossi stated
that he treated appellant on November 1, 2004 for a left elbow condition sustained when he
pushed a food cart at work. He stated that subsequent x-rays revealed loose bodies which could
have occurred from the previous injury. Dr. Rossi opined that appellant’s left elbow condition in
2008 was causally related to the November 2004 left elbow injury. His opinion on causal
relationship is speculative in that he indicated that the left elbow loose bodies “could” have
occurred as a result of the 2004 incident. Dr. Rossi did not describe appellant’s work duties
since 2004 or provide a rationalized medical explanation as to how his work activities caused his
left elbow condition and need for surgery in 2008. Therefore, his opinion on causal relationship
is of diminished probative value and is insufficient to establish that appellant’s left elbow
condition was caused or aggravated by his federal employment.
On April 22, 2009 Dr. Woodward stated that he treated appellant from November 1, 2004
to March 30, 2005 for a left elbow injury sustained at work while pushing a food cart. Appellant
was returned to modified work duties to include no pushing, pulling or climbing duties.
Dr. Woodward noted that, since his return to work, he repeatedly pushed food carts, climbed
ladders for security checks and participated in firearms qualification tests. He stated that it
appeared medically evident that appellant’s November 1, 2004 injury and the continuation of his
same work activities led to the need for surgical intervention in 2008. Dr. Woodward did not
explain, with medical rationale, how appellant’s work activities caused or aggravated his left
elbow condition in 2008 and necessitated surgery. For these reasons, his opinion on causal
relationship is of diminished probative value and is not sufficient to establish a work-related left
elbow condition.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a left elbow condition causally related to factors of his employment.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 8, 2009 is affirmed.
Issued: May 3, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-203
Issued: September 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 3, 2010 appellant filed a timely appeal from a May 26, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) which denied merit review. Because
more than 180 days elapsed from the most recent merit decision of January 6, 2010 to the filing
of this appeal on November 3, 2010, the Board lacks jurisdiction to review the merits of the
claim pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On February 3, 2006 appellant, then a 49-year-old city carrier, filed a (Form CA-1),
traumatic injury, alleging that on October 12, 2005 she injured her back while lifting buckets of
1

5 U.S.C. §§ 8101-8193.

mail at work. OWCP accepted her claim for displacement of a lumbar intervertebral disc at L4-5
without myelopathy. It authorized surgery. On October 14, 2005 an L4-L5 laminectomy
microdiscectomy and left sided L4-L5 foraminotomy was performed. Appellant did not return to
work after surgery.
Appellant was treated by Dr. Jose R. Parker, a Board-certified family practitioner for
ongoing low back pain, bilateral sciatic and bladder issues subsequent to surgery. Dr. Parker
opined that she was totally disabled from work. In a November 6, 2007 report, he addressed
treatment for low back pain related to an October 11, 2005 work injury. Appellant reported not
being able to return to work in any capacity. In a July 15, 2008 report, Dr. Parker noted that she
was returning to work light duty and recommended that she gradually resume work duties for 4
hours a day initially, two to three days a week and work within 15 minutes of her home.2
OWCP also referred appellant to several second opinion physicians. This included
Dr. Ali Araghi, a Board-certified orthopedic surgeon. In reports dated February 29 and May 22,
2008, he found that she could return to work full time with physical restrictions.
On May 5, 2009 the employing establishment offered appellant a limited-duty position as
a modified mail processing clerk effective May 23, 2009 with an annual salary of $55,576.00.
The position complied with the restrictions set forth by Dr. Parker. In reports dated March 9 to
June 30, 2009, a vocational rehabilitation specialist noted the employing establishment offered
appellant a limited-duty position which was in conformance with her work restrictions but she
refused the position asserting that it exceeded the driving and lifting restrictions set forth by
Dr. Parker.
In a July 1, 2009 letter, OWCP advised appellant that the job offer constituted suitable
work. Appellant was informed that she had 30 days to accept the position or provide reasons for
refusing it; otherwise, she risked termination of her compensation benefits. In a letter dated
July 31, 2009, she rejected the job offer and asserted the work requirements exceeded the
restrictions of Dr. Parker. Appellant contended that she continued to have neurological problems
and caudal equines syndrome since her injury. She also could not return to the employment site
because she had filed sexual harassment charges against a coworker prior to her injury.
On August 7, 2009 OWCP advised appellant that the position of a modified mail
processing clerk was suitable work. It noted that it considered her reasons for refusing the
position and found them to be unacceptable. OWCP afforded appellant 15 additional days to
accept the job offer.
On August 31, 2009 appellant rejected the offered position noting that the coemployee
against whom she filed a sexual harassment suit worked in the same building. She submitted an
Equal Employment Opportunity (EEO) complaint filed on October 14, 2004.
In a September 3, 2009 decision, OWCP terminated appellant’s entitlement to monetary
compensation on the grounds that she refused an offer of suitable work.

2

Appellant was offered jobs on September 21, 2006 and July 3, 2008, which she declined.

2

On November 24, 2009 appellant requested reconsideration.
She submitted an
August 13, 2009 report from Dr. J. Carvel Jackson, a Board-certified physiatrist, who treated her
for weakness, pain and loss of sensation in the saddle distribution with difficulty with bowel and
bladder issues. Dr. Jackson noted a history of the lumbar L4-5 disc herniation with associated
radiculopathy, cauda equinus syndrome, status post decompression discectomy and diabetes. He
opined that appellant was significantly limited for gainful employment but recommended a parttime modified light duty. Dr. Jackson advised that she start work at four, six-hour days a week
with additional restrictions. In an October 29, 2009 report, he noted that appellant returned to
work part time and reported an increase in back and neck pain. In prescription notes dated
December 17, 2009, Dr. Jackson recommended she work 24 hours a week, comprised of four
six-hour days with a 24-hour break between each two-day work period with additional
restrictions.
In a decision dated January 6, 2010, OWCP denied modification of the September 3,
2009 decision.
On February 12, 2010 appellant requested reconsideration. She indicated that on May 5,
2009 Dr. Parker informed her that he was not qualified to perform an impairment evaluation so
she sought treatment from Dr. Jackson. Appellant contended that OWCP improperly determined
that Dr. Jackson was not authorized or competent to evaluate her impairment for a schedule
award. She further asserted that she filed an EEO complaint for sexual harassment and did not
want to work in the same facility as the accused coemployee. Appellant sought a schedule award
and authorization to change physicians to Dr. Jackson.
Appellant submitted a May 5, 2009 letter from OWCP to Dr. Parker, reports from
Dr. Jackson dated August 13, October 29 and December 17, 2009, an EEO complaint and the
January 6, 2010 OWCP decision, all previously of record. In a May 13, 2009 report, Dr. Parker
evaluated her for a low back condition and impairment of the lower extremities. He advised that
he was not qualified to perform an impairment evaluation and referred her to an occupational
specialist. Dr. Parker reviewed the May 5, 2009 job offer and stated that appellant felt that she
was unable to perform the type of work required for the job. He noted that her disability
determination and fitness to return to work should be determined by an occupational health
physician. Appellant also submitted an October 23, 2009 Industrial Commission of Arizona
worker’s report form from Dr. Azmi Nasser, a Board-certified physiatrist, who noted that she
was injured on October 11, 2005 and recommended physical therapy and chiropractic treatment.
She submitted witness statements from coworkers Jack Owens, Raul Candia and Joe Cuccinotto,
who noted that appellant complained of being sexually harassed by a coworker. Appellant
submitted December 29, 2009 and January 27, 2010 requests for a change in physicians. In an
April 22, 2010 note, Dr. Jackson advised that he was a Board-certified physiatrist and had
extensive training and experience in evaluating and managing occupational injuries. He noted
that he was qualified to treat appellant for her occupational disease and perform an impairment
evaluation.
On March 1, 2010 appellant filed a claim for a schedule award.

3

In letters dated March 10 and 25, 2010, OWCP denied authorization for appellant to
change physicians noting that Dr. Jackson was not a specialist in occupational medicine and was
therefore not qualified to treat her.
In a May 26, 2010 decision, OWCP denied appellant’s reconsideration request finding
that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.6
ANALYSIS
OWCP terminated appellant’s compensation benefits pursuant to section 8106(c) on
September 3, 2009 on the grounds that she refused an offer of suitable work. It denied her
February 12, 2010 reconsideration request, without a merit review and she appealed this decision
to the Board. The issue is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her February 12, 2010 request for reconsideration, appellant asserted that OWCP
improperly denied her claim for a schedule award. She indicated that her treating physician was
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

6

See Daniel Deparini, 44 ECAB 657 (1993).

4

not qualified to perform an impairment evaluation so she sought treatment from Dr. Jackson, but,
OWCP determined that he was not qualified to evaluate her. Appellant asserted that she filed an
EEO complaint for sexual harassment on October 14, 2005 and did not want to return to work in
the same facility as the accused coemployee. These assertions do not shows that OWCP
erroneously applied or interpreted a specific point of law nor do they advance a relevant legal
argument not previously considered by OWCP. Appellant’s assertions on reconsideration relate
to a schedule award evaluation, her request for a change in physicians and a harassment claim
and are insufficient to warrant reopening her claim. The submission of evidence and argument
which does not address the particular issue involved, her refusal of an offer of suitable work,
does not constitute a basis for reopening a case.7
In support of her reconsideration request, appellant submitted a May 13, 2009 report from
Dr. Parker who evaluated her for a low back condition and impairment of the lower extremities.
Dr. Parker noted that she indicated that she was unable to perform the duties described in the job
offer. Although this report is new, it is not relevant as he did not provide his own opinion as to
whether appellant was medically capable of performing the offered job. Instead, Dr. Parker
repeated her opinion on her ability to perform the offered job and noted that any determination
regarding her ability to work should come from an occupational medicine physician. Therefore,
this new evidence is not relevant and is insufficient to warrant reopening the case for a merit
review.
Appellant submitted an October 23, 2009 Arizona workers’ report form from Dr. Nasser
who noted that she was injured on October 11, 2005 and recommended physical therapy and
chiropractic treatments. Similarly, she submitted an April 22, 2010 note from Dr. Jackson who
advised he had extensive training and experience in evaluating and managing occupational
injuries and was an appropriate specialist to treat her occupational disease and perform an
impairment evaluation. Although these reports are new, they are not relevant because they do
not address the particular issue involved, whether the position offered appellant was suitable.
Drs. Nasser and Jackson failed to state whether appellant’s diagnosed conditions precluded her
from performing the modified position at the time her compensation was terminated. Therefore,
this new evidence is not relevant and is insufficient to warrant reopening the case for a merit
review.
Appellant submitted a May 5, 2009 letter from OWCP to Dr. Parker, reports from
Dr. Jackson dated August 13, October 29 and December 17, 2009, an EEO complaint and the
January 6, 2010 OWCP decision, all previously of record. However, this evidence is not
relevant because it is duplicative of evidence previously of record and previously considered by
OWCP.8 Therefore, OWCP properly determined that this evidence did not constitute a basis for
reopening the case for a merit review.

7

See L.T., Docket No. 09-1798 (issued August 5, 2010).

8

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

5

Appellant submitted witness statements from coworkers who noted that she complained
of being sexually harassed at work and requests for a change in physicians dated December 29,
2009 and January 27, 2010. However, this evidence is insufficient to reopen her claim as the
submission of evidence which does not address the particular issue involved does not constitute a
basis for reopening a case.9 To the extent that appellant asserts that claimed sexual harassment
precluded her from being medically able to perform the job in the location where it was offered,
the Board notes that this pertains to a medical issue and she did not, as noted, provide new
medical evidence on reconsideration supporting that she was medically unable to accept the
offered job.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, appellant asserts that she was entitled to a schedule award and should be paid
for her work injury. The Board notes, however, that it only has jurisdiction over whether OWCP
properly denied a merit review of the claim. As explained, appellant did not submit any
evidence or argument in support of her reconsideration request that warrants reopening of her
claim for a merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

9

See L.T., supra note 7.

6

ORDER
IT IS HEREBY ORDERED THAT the May 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 13, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF HEARINGS
& APPEALS, Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 07-1359
Issued: January 28, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the January 23, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit
decision.
ISSUE
The issue is whether the Office properly denied appellant’s December 12, 2006 request
for reconsideration.

FACTUAL HISTORY
On the prior appeal of this case,1 the Board found that appellant failed to establish that his
employer subjected him to a hostile work environment.2 It affirmed the denial of his claim for an
emotional condition.3
On November 23, 2005 appellant requested reconsideration. He explained that he was
neither claiming nor seeking compensation for wage loss or medical benefits. Rather, appellant
stated: “The only benefit which I seek is the recovery of leave which was expended during my
illness of 2002[to 2003].” He argued that his supervisor’s persistent discriminatory treatment
and harassment constituted compensable work factors that caused an aggravation of his
gastrointestinal condition. Appellant argued that his additional case assignments, more complex
assignments, special law case assignments and special clerical typing assignments were
measured by unfair, arbitrary case production standards which aggravated his gastrointestinal
condition. He concluded: “Therefore, I am entitled to [F]ederal [E]mployees’ [C]ompensation
[Act] benefits consisting of the right to buy back the leave that I was forced to expend.”
In a decision dated December 15, 2005, the Office granted appellant’s request and
reviewed the merits of his case. The Office denied modification of its prior decision. The Office
noted no evidence establishing error or abuse on the part of the employing establishment and no
documentation on file to indicate an increase in work load, production quota or changes in
assignments.
On December 12, 2006 appellant again requested reconsideration. He repeated that he
was not seeking any benefits under the Act, but sought to buy back leave. Appellant explained
that his condition had improved and that he was now working in a higher-level position. “The
buy back of leave,” he explained, “will make a difference in claimant’s retirement, if he lasts that
long. If he does not, the buy back of leave will be a loss, but claimant is willing to take the risk.”
Appellant also contended that the Office erroneously framed the issue in terms of
whether he sustained an emotional condition, when he was arguing instead that the performance
of his duties aggravated his preexisting physical condition. He argued that overwork aggravated
his preexisting condition after his new supervisor imposed new raw-number de facto monthly
case writing quotas in June 2001, quotas that he felt were unfair and in violation of long-standing
policies and practices. Appellant argued that the situation worsened in early 2002 when the
supervisor assigned an unqualified typist to him causing him to spend significant time correcting
errors, which cut into the time needed to do his own work, violating two memoranda of
understanding and causing him to work in excess of 50 hours a week for over a year.
1

Docket No. 04-1986 (issued January 5, 2005).

2

Appellant charged his supervisor with retaliatory harassment for his Equal Employment Opportunity (EEO)
complaints, a pattern of harassment that was planned to set him up for failure under some artificial unwritten
numerical standard. He stated that his disability “arose as a result of my supervisor’s actions which aggravated a
physical condition of mine.” In support of his claim, appellant submitted a memorandum he wrote to his supervisor
regarding “Harassment in Retaliation of my EEO Complaints.”
3

The facts of this case as set forth in the Board’s prior decision are hereby incorporated by reference.

2

Appellant submitted a declaration describing the overwork that aggravated his preexisting
condition. He submitted lists of cases. Appellant attached samples of proofed work product. He
submitted a partial and unsigned stipulation for compromise settlement between him and the
Commissioner of the Social Security Administration. Appellant submitted a memorandum to his
supervisor regarding “Harassment In Retaliation of my EEO Complaints.” He submitted his
brief from the prior appeal. Appellant also submitted a February 5, 2004 medical report
attributing the aggravation of his dyspepsia to supervisors increasing his work loads, increasing
his writing quotas and other changes in July 2001.
In a decision dated January 23, 2007, the Office denied appellant’s request for
reconsideration. The Office noted that a majority of the documents appellant submitted were
duplicates of evidence previously considered. The only new document was an unsigned and
undated court document, which could not be considered final or relevant. As appellant proffered
no new and relevant evidence pertinent to the issue at hand, the Office denied a merit review of
his case.
On appeal, appellant argued that the Office improperly denied his request for
reconsideration and that he was entitled to buy back the leave I extended when I was ill.
LEGAL PRECEDENT
The Act provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.4 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the “application for reconsideration.”5
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.6
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.7 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.605 (1999).

6

Id. at § 10.606.

7

Id. at § 10.607(a).

3

will deny the application for reconsideration without reopening the case for a review on the
merits.8
ANALYSIS
On appeal, appellant states that he is only seeking to repurchase the leave he used in 2002
and 2003. However, neither the Office nor the Board can grant the remedy appellant seeks. The
Act does not regulate the repurchase of leave. That is a matter between appellant and the
employing establishment.9 Neither the Office nor the Board can compel the employing
establishment to change its leave records.10 The Board has no jurisdiction in the matter.
The Board finds that appellant’s December 12, 2006 request for reconsideration meets
none of the criteria for obtaining a merit review of his claim for compensation.
Appellant’s December 12, 2006 request for reconsideration charged the Office with
misrepresenting his claim as one for an emotional condition. But this does not show that the
Office erroneously applied or interpreted a specific point of law. It is immaterial to the denial of
his claim whether his emotional reaction caused a disabling psychiatric condition or an
aggravation of a physical condition. The emotional reaction must arise from a compensable and
established factor of employment regardless. That was the basis of the Office’s denial, and the
Board affirmed.
Appellant devoted the bulk of his request for reconsideration to the argument that
overwork aggravated his preexisting condition. This is the same argument as previously
considered by the Office and the Board. It does not warrant a reopening of his case for further
merit review.
Appellant revisited the complaints with his supervisor. He again argued that his
supervisor’s discriminatory treatment and harassment were compensable. But these arguments,
and the compromise settlement and the memorandum on “Harassment In Retaliation of my EEO
Complaints,” are not new. Because appellant’s request for reconsideration does not meet at least
one of the standards for obtaining a merit review of his claim for compensation, the Board will
affirm the Office decision denying that request.

8

Id. at § 10.608.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of Compensation, Chapter 2.900.13.a.
(January 1991): “When an employee is injured and elects to use sick or annual leave during the period of disability, the
employee may at a later date, with the concurrence of the employing agency, claim compensation for the period of
disability and buy back the leave used. This procedure was reviewed by the Comptroller General in 1953 and
considered permissible. The determining factor is whether the employing agency is willing and able to change the
leave records from leave-with-pay to leave-without-pay.”
10

Cf. Lloyd E. Griffin, Jr., 46 ECAB 979 (1995) (given a lump sum for the annual leave he accrued when he
retired, the claimant, once again employed, sought to have his annual leave reinstated).

4

CONCLUSION
The Board finds that the Office properly denied appellant’s December 12, 2006 request
for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shenandoah, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1131
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 20, 2021 appellant, through counsel, filed a timely appeal from a May 6, 2021 merit
decision 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. 3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No
contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative,
prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Boa rd notes that, following the May 6, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case
record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by
the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability, commencing July 30, 2018, causally related to her accepted June 15, 2017 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 15, 2017 appellant, then a 34-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she twisted her left ankle as she stepped out of her mail
truck while in the performance of duty. On July 5, 2017 OWCP accepted sprain of the
calcaneofibular ligament of the left ankle. 5 On January 5, 2018 it expanded the acceptance of
appellant’s claim to include strain and laceration of muscles and tendons of peroneal muscle group
of the lower left leg and laceration of muscle and tendon of the peroneal muscle group at the lower
left leg. Appellant worked intermittent modified-duty work until January 11, 2018 when Dr. John J.
Stapleton, a podiatrist, performed authorized repair of a left peroneal brevis split tear and fibular
groove deepening. OWCP paid her wage-loss compensation on the supplemental rolls from
January 20 through April 13, 2018. Appellant returned to full-time, modified-duty work on
April 17, 2018.6
A July 24, 2018 magnetic resonance imaging (MRI) scan of the left ankle revealed
postsurgical changes, no other tendon or ligament injury, and a stable osteo chondral injury along
the posterior dome of the talus.
In a July 25, 2018 progress note, Dr. Stapleton noted that appellant had twisted her left ankle
on June 12, 2018 and subsequently had persistent left ankle pain that was increasing in intensity.
Left ankle examination demonstrated tenderness over the peroneal tendon, laxity of the peroneal
tendon with hypermobility, instability to the contralateral ankle, and mild edema. Dr. Stapleton
diagnosed acute left ankle pain, osteochondral defect, and tendinosis. In an unsigned
correspondence of even date, he noted that appellant was under his care and advised that she should
not work due to medical illness.
In a July 30, 2018 report, Dr. Daniel Fuchs, an orthopedic surgeon, noted the history of
appellant’s June 15, 2017 work injury. He described her medical and surgical history, and noted
4

Docket No. 19-1456 (issued July 14, 2020).

5

On November 24, 2017 appellant filed a Form CA-1 alleging that on that date she twisted her left ankle as she
stepped off the sidewalk while in the performance of duty. OWCP assigned OWCP File No. xxxxxx563. By decision
dated January 8, 2018, it denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient
to establish that the injury and/or events occurred as she described. OWCP explained that she had not submitted factual
evidence to support that she experienced a work-related injury on November 24, 2017.
6

Appellant signed an offer of modified limited-duty assignment on April 17, 2018. The duties of the position were
one to two hours each casing mail, administrative duties, and working undeliverable mail with two hours
delivering/carrying mail. Appellant was restricted to two hours each, standing, walking, and delivering.

2

her complaint of persistent pain and swelling in the area of the peroneal tendons status post tendon
repair, and that she had a mild aggravation the previous month when she rolled her left ankle.
Dr. Fuchs indicated that a July 2018 MRI scan demonstrated a small posterolateral osteochondral
lesion of the talar dome. Findings on left ankle examination included intact sensation to light touch,
a well-healed surgical incision of the peroneal tendons, mild swelling, and tenderness to palpation.
Dr. Fuchs diagnosed left lower extremity peroneal tendinitis and recommended immobilization in a
controlled ankle movement (CAM) boot and physical therapy. He advised that appellant was
disabled from work. On a form report of same date Dr. Fuchs diagnosed left peroneal tendon tear,
recommended a CAM boot, weight bearing as tolerated, and advised that appellant could return to
modified sedentary work.
On July 31, 2018 appellant filed a notice of recurrence (Form CA-2a). She indicated that
the recurrence began on July 18, 2018 due to left ankle pain and weakness, and that it was causally
related to her accepted June 15, 2017 employment injury. Appellant stopped work on July 30, 2018.
By decision dated October 19, 2018, OWCP denied appellant’s claim, finding that she had
not sustained a recurrence of disability commencing July 30, 2018 causally related to her June 15,
2017 employment injury.
On October 31, 2018 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
In procedure notes dated November 5, 2018 and January 7, 2019, Dr. Stapleton treated
appellant in follow up. He opined that her current condition was clearly related to the initial work
injury, noting that, after she had repair of her peroneal brevis tendon, her symptoms continued and
were secondary to tendinosis and scarring from this repair and that she require d revision surgery.
On March 4, 2019 Dr. Stapleton noted that appellant was doing well, but had a complaint of mild,
intermittent pain over the medial aspect of her left ankle, worsened with extended activity, and that
ankle range of motion was still limited due to pain. He diagnosed status post-surgery and a lowgrade osteochondral defect. Dr. Stapleton reiterated his opinion that appellant’s current condition
was due to the June 15, 2017 employment injury.
In an April 10, 2019 report, Dr. Mitchell E. Cooper, a Board-certified orthopedic surgeon,
noted appellant’s complaint of a two-year history of left ankle pain with current complaints of lateral
midfoot pain, aggravated by direct pressure and weight bearing. He noted the September 27, 2018
surgery and that appellant reported that she had twisted her ankle the previous week and had
increased pain since that time. Dr. Cooper reviewed the July 24, 2018 left ankle MRI scan and
advised that he was not sure that appellant was symptomatic from osteochondritis dissecans.
By decision dated May 29, 2019, OWCP’s hearing representative affirmed the October 19,
2018 decision.
On June 25, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 14, 2020, the Board set aside the May 29, 2019 decision and remanded the case for further
medical development. The Board found Dr. Stapleton’s opinion sufficient to require further

3

development of the medical evidence. The Board further instructed OWCP to administratively
combine OWCP File No. xxxxxx157 and File No. xxxxxx563. 7
OWCP received additional evidence. On May 24, 2019 Dr. Cooper treated appellant in
follow up for left ankle pain, which she attributed to an injury in June 2017. He noted that she was
status post peroneal brevis to longus transfer with tenodesis performed on September 27, 2018.
Dr. Cooper diagnosed persistent left ankle pain, deep ankle pain slightly lateral, and small
osteochondritis dissecans (OCD) post lateral talus. He continued appellant’s work restrictions.
On March 2, 2021 OWCP referred appellant, the case record and a SOAF for a second
opinion examination to Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon. It requested
that Dr. Didizian evaluate appellant’s current disability status in connection with the June 15, 2017
date of injury and need for treatment medically connected to this injury. 8
In a March 18, 2021 report, Dr. Didizian discussed appellant’s factual and medical history
and reported physical examination findings. Examination of both ankles revealed no synovitis,
effusion, or crepitation, full range of motion of both ankles, intact peripheral pulses, no atrophic
changes, intact sensation in both ankles, reflexes present and equal, and negative pivot test of the
left ankle. Dr. Didizian diagnosed sprain of the calcaneofibular ligament, left ankle, strain of
muscles and tendons of the peroneal muscle group at lower left leg, laceration of the muscles and
tendons of the peroneal muscle group, and osteochondritis dissecans. He noted that the June 15,
2017 employment injury did not cause or aggravate an additional left ankle condition causing
surgery on September 27, 2018 and did not cause recurrent employment-related disability.
Dr. Didizian noted that appellant currently worked as a postmaster with no difficulty and opined
that she would not be able to go back to her original job because of multiple surgeries and ongoing
symptomology. He indicated that appellant continued to have residuals of her work-related injury
and was not fully recovered. In a work capacity evaluation (Form OWCP-5c), Dr. Didizian noted
appellant could perform light-duty work with restrictions on standing, walking, pushing, pulling,
and lifting.
By decision dated May 6, 2021, OWCP expanded the acceptance of appellant’s claim to
include osteochondritis dissecans of the left ankle.
By a second decision dated May 6, 2021, OWCP denied appellant’s recurrence claim,
finding that she did not sustain a recurrence of disability commencing July 30, 2018 causally related
to her June 15, 2017 employment injury. It found that the weight of the medical evidence rested
with Dr. Didizian, the OWCP referral physician.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
7

OWCP administratively combined OWCP File No. xxxxxx157 and OWCP File No. xxxxxx563, with the former
serving as the master file, in accordance with the Board’s decision dated July 14, 2020.
8

OWCP received additional evidence. Appellant attended physical therapy treatment on January 14 through
23, 2020. Also submitted was a September 9, 2020 pathology report for a thigh biopsy.

4

which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment. 9
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 10 Where no such rationale is present,
the medical evidence is of diminished probative value.11
OWCP’s procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings. That
change must result from a previous injury or occupational illness rather than an intervening injury
or new exposure to factors causing the original illness. It does not include a condition that results
from a new injury, even if it involves the same part of the body previously injured.12
ANALYSIS
The Board finds that this case is not in posture for decision.
Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted
prior to the issuance of OWCP’s May 29, 2019 decision, which was considered by the Board in its
July 14, 2020 decision. Findings made in prior Board decisions are res judicata absent further merit
review by OWCP under section 8128 of FECA. 13
In a March 18, 2021 report, second opinion physician, Dr. Didizian, conducted an
examination of both ankles and reported no abnormalities. He diagnosed sprain of the
calcaneofibular ligament, left ankle, strain of muscles and tendons of the peroneal muscle group at
lower left leg, laceration of the muscles and tendons of the peroneal muscle group, and
osteochondritis dissecans. Dr. Didizian noted that the June 15, 2017 employment injury did not
cause or aggravate an additional left ankle condition resulting in surgery on September 27, 2018,
and did not cause recurrent employment-related disability. He noted that appellant currently worked
as a postmaster with no difficulty and opined that she would not be able to go back to her original
job because of multiple surgeries and ongoing symptomology. Dr. Didizian opined that appellant
continued to have residuals of her work-related injury and was not fully recovered. In a Form

9

20 C.F.R. § 10.5(x).

10

See J.S., Docket No. 19-1035 (issued January 24, 2020).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); D.T., Docket
No. 19-1064 (issued February 20, 2020).
13

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

5

OWCP-5c, he noted that appellant could perform light-duty work with restrictions on standing,
walking, pushing, pulling, and lifting.
Dr. Didizian, however, provided only conclusory responses to the questions posed by
OWCP with regard to whether appellant sustained a recurrence of disability on July 30, 2018 due
to a material change or worsening of her June 15, 2017 employment injury; whether she sustained
an aggravation of her accepted injury; and/or whether the September 27, 2018 left ankle surgery
was related to her work injury.14 The Board has held that a report is conclusory and of limited
probative value regarding causal relationship if it does not contain medical rationale. 15 As
Dr. Didizian did not provide a rationalized medical opinion explaining how the claimed recurrence
was causally related to the accepted June 15, 2017 employment injury, his report was insufficient
to establish causal relationship.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 16
While the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is done. 17
Accordingly, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case. 18
On remand OWCP shall provide an updated SOAF request a supplemental report from
Dr. Didizian thoroughly addressing the issues and providing medical rationale in support of his
opinion. Following any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See D.M., Docket No. 19-1181 (issued December 2, 2019). See also P.R., Docket No. 19-1313 (issued August 11,
2020); see also S.S., Docket No. 18-0397 (issued January 15, 2019).
15

See R.W., Docket No. 19-1733 (issued April 13, 2021); D.W., Docket No. 18-1139 (issued May 21, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).
16

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
17

Id.; see also Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

18

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings co nsistent
with this decision of the Board.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7