United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Homewood, IL, Employer
__________________________________________

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

Docket No. 14-526
Issued: July 7, 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 3, 2014 appellant, through her attorney, filed a timely appeal from an
October 16, 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate wage-loss
compensation effective July 3, 2010; and (2) whether appellant established any employmentrelated disability after July 3, 2010.
FACTUAL HISTORY
Appellant filed two traumatic injury claims in 1989. On November 7, 1989 appellant,
then a 29-year-old carrier, injured her back when she stumbled while walking up steps. On
1

5 U.S.C. § 8101 et seq.

December 19, 1989 she alleged a back injury while delivering parcels. The two claims were
administratively combined. OWCP accepted a lumbosacral strain and a herniated L4-5 disc with
subsequent urinary incontinence. On February 3, 1992 appellant underwent an L4-5 discectomy
surgery. She returned to a limited-duty position on November 30, 1992.
On November 5, 1998 appellant filed a notice of recurrence of disability commencing
October 23, 1998. According to an August 5, 2009 statement of accepted facts (SOAF), she
began work in June 1999 full time as a modified distribution clerk and the position was
permanent effective June 3, 2000.2
In a report dated May 1, 2000, Dr. Konstantin Slavin, a Board-certified neurosurgeon,
advised that appellant was scheduled for surgery for a spinal cord stimulator. The record
contains a job offer dated October 26, 2000 from the employing establishment for a full-time
modified distribution clerk position. The offer stated that it was a rehabilitation assignment
based on a report dated October 16, 2000 from Dr. Slavin and the job offer would be reviewed in
three months.
Appellant worked limited duty with intermittent disability and filed a notice of recurrence
of disability commencing December 11, 2003. OWCP accepted the recurrence of disability and
she began receiving compensation for wage loss.
In a memorandum dated April 2, 2009, an employing establishment Office of the
Inspector General (OIG) agent indicated that Dr. Slavin was interviewed as part of an
investigation into appellant’s claim for compensation. The memorandum reported that
Dr. Slavin stated that she could perform office work full time, but he could not determine a
lifting restriction. It was also noted that appellant told him that there was no limited-duty work
available at the employing establishment.
By report dated April 13, 2009, Dr. Slavin provided results on examination. He stated
that the spinal cord stimulator device had been replaced in October 2008. Dr. Slavin noted that
appellant’s work was not able to accommodate her limitations and she remained off work.
Appellant underwent a functional capacity evaluation (FCE) on May 26, 2009. In a report dated
June 15, 2009, Dr. Magdalena Anitescu, a Board-certified anesthesiologist, provided results on
examination and diagnosed lumbar radiculitis and sacroiliitis.
OWCP referred appellant for a second opinion examination to Dr. Avi Bernstein, a
Board-certified orthopedic surgeon. In a report dated September 17, 2009, Dr. Bernstein
provided a history and stated that she had a benign physical examination with good neurological
function. Appellant’s subjective complaints were consistent with lumbar arachnoiditis and she
felt that she could work 12 hours a week. Dr. Bernstein stated that she could work in a sedentary
position with the ability to change position and no lifting over 10 pounds. After a trial period,
appellant could attempt to increase her work abilities.

2

There does not appear to be any specific evidence in the record transmitted to the Board as to an offer of a
permanent position effective June 3, 2000.

2

OWCP found a conflict in the medical opinion and Dr. Mukund Komanduri, a Boardcertified orthopedic surgeon, was selected as the referee physician. In a report dated March 8,
2010, Dr. Komanduri provided a history of injury, review of medical records and listed results on
examination. He opined that there was evidence of “probable symptom magnification and
fabrication of symptoms. [Appellant] has given an invalid response on her [FCE] that is
unmistakably invalid.” Dr. Komanduri stated that appellant told him that she could only flex
forward to 40 degrees, but the OIG video surveillance confirmed that she was able to do much
more and “it is impossible to determine what is real and what is not real with regards to
[appellant’s] subjective complaints, as I am not able to identify functional deficits that are
anatomic.” He stated that there were no positive findings on diagnostic studies, except for some
degenerative disc disease and he was not confident that she had any diagnosed condition.
Dr. Komanduri noted that appellant had been diagnosed with arachnoiditis, which most likely
was real and probably caused some pain, but she clearly was magnifying her symptoms. He
stated that the original diagnosis of arachnoiditis may be related to her disc surgery that occurred
in 1992, but “[c]urrently, I do not believe [that appellant] is being treated for any condition that
is related to the 1989 injury.” Dr. Komanduri concluded that “all of [appellant’s] accepted
conditions have returned to the preinjury state.”
In a supplemental report dated April 30, 2010, Dr. Komanduri stated that the “issue of
arachnoiditis is a tricky one. It is a postsurgical complication and it can cause disabling pain and
limitations. I do not believe [that] this is the case for [appellant], however, given the surveillance
video and other inconsistent findings as noted. Although I doubt that the scarring that has
occurred is gone, I do not believe that explains [her] inconsistent behavior. I am unable to
determine [appellant’s] level of ‘disability’ as she is in many ways malingering and fabricating
her symptoms. Regardless, this does not render her disabled and unable to work.” He found that
appellant could perform the modified distribution clerk position. In response to whether the
arachnoiditis was preexisting, Dr. Komanduri stated, “I am not stating that the arachnoiditis is
preexisting. I believe that it is clearly a postsurgical complication related to [appellant’s] 1992
disc surgery. I am stating that at this point I cannot trust [her] physical examination findings as
there is evidence of symptom magnification. It is simply not possible to determine whether
[appellant] truly has any significant current injury. Unfortunately, when an individual is
malingering, it is not feasible to distinguish between what symptoms are real and what symptoms
are not.” In response to whether appellant’s disability had ceased, Dr. Komanduri stated,
“[Appellant] was allowed a modified position from an accepted injury and following surgery. I
did not examine her in 1992 and I think that I would hesitate to go so far as to say she needs no
restrictions. [Appellant] had a microdiscectomy at L4-5 and implantation of a spinal cord
stimulator. Regardless of symptom magnification, I do not think [that] she should be punished to
the degree that all prior assignments of disability should be eliminated. As noted above, my
opinion has not changed regarding [appellant’s] ability to work and I believe [that] she is able to
perform the full-time modified distribution clerk position as previously noted.”
By letter dated May 21, 2010, OWCP advised appellant that it proposed to terminate
compensation for wage loss based on the weight of the medical evidence. It noted that she had
been provided a permanent job offer as a modified clerk and Dr. Komanduri opined that she
could perform the limited-duty position.

3

On June 21, 2010 appellant submitted a June 9, 2010 note from Dr. Fakher Habib, a
Board-certified internist, who treated her for multiple problems, including back and leg pain.
Dr. Habib indicated that she could work with limitations on pulling, pushing and lifting.
By decision dated June 30, 2010, OWCP terminated wage-loss compensation effective
July 3, 2010. It found that the weight of the evidence was represented by Dr. Komanduri.
On October 15, 2010 appellant requested reconsideration of her claim. She submitted an
October 8, 2010 report from Dr. Sergey Neckrysh, a Board-certified neurosurgeon, who
indicated that a computerized tomography myelogram showed degenerative changes in the spine.
Dr. Neckrysh indicated that surgical options were discussed. The case was referred to an OWCP
medical adviser for an opinion regarding surgery. In a report dated January 3, 2011, the medical
adviser opined that appellant’s degenerative disc disease was not related to the employment
injuries and he did not recommend authorization for surgery.
By decision dated January 13, 2011, OWCP reviewed the case on its merits and denied
modification.
Appellant again requested reconsideration of her claim. She submitted a January 10,
2011 report from Dr. Anitescu providing results on examination. Dr. Anitescu indicated that
appellant was scheduled for an epidural steroid injection. In a report dated March 31, 2011, she
diagnosed failed back surgery syndrome and lumbosacral radiculitis.
By decision dated June 2, 2011, OWCP reviewed the merits of the claim and denied
modification.
On February 6, 2012 appellant again requested reconsideration. She submitted a
January 31, 2012 report from Dr. Jonathan Watson, a Board-certified emergency medicine
specialist, who provided results on examination and indicated that she should continue light duty.
Dr. Watson stated that he agreed with the recommendation that appellant would likely need an
L4-S1 decompression and fusion surgery.
OWCP referred the case to an OWCP medical adviser for an opinion with respect to
proposed surgery. In a report dated May 13, 2012, the medical adviser opined that appellant was
a candidate for surgical intervention. The medical adviser stated that the adjacent level
deterioration was a direct result of treatment for the work-related injury and recommended
authorization of the surgical procedure.3
By decision dated July 9, 2012, OWCP reviewed the merits of the claim and denied
modification. It did not discuss the medical adviser’s report.
On July 15, 2013 OWCP received a reconsideration request. The record indicated that
appellant underwent lumbar surgery on October 10, 2012. Appellant submitted a June 24, 2013
3

On appeal, counsel for appellant contends that the October 10, 2012 surgery should be authorized. As there is
no final decision by OWCP denying the request for surgery, it is not an issue presently before the Board in this
appeal. See 20 C.F.R. § 501.2.

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report from Dr. Slavin stating that the October 2012 surgery was uneventful, but she had
reported bilateral leg pain and there was a question as to whether the spinal cord stimulation
device could be replaced.
By decision dated October 16, 2013, OWCP reviewed the case on its merits and denied
modification. It found that the evidence was insufficient to warrant modification of the prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.4 The weight of medical
evidence is determined by its reliability, its probative value and its convincing quality. The
factors which enter in such an evaluation include the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion.5
ANALYSIS -- ISSUE 1
There are several issues that require clarification before the Board addresses the
termination issue. The application for reconsideration, received on July 15, 2013 was untimely
with respect to the July 9, 2012 OWCP decision.6 Since OWCP treated the application as timely,
the Board will review the merits of the claim.
In this regard there are two findings made by OWCP, which the Board finds are not
supported by the record: (1) that a conflict under 5 U.S.C. § 8123(a)7 existed and the selection of
Dr. Komanduri was as a referee physician; and (2) that appellant was offered a “permanent”
light-duty position and therefore the medical issue was whether appellant could perform the
light-duty job. As to a conflict with the second opinion physician, Dr. Bernstein, OWCP never
identified the attending physicians that offered a conflicting opinion. He found that appellant
could work with restrictions, such as a 10-pound lifting restriction. It is not clear whether
Dr. Bernstein felt that she could work full time, as he noted her belief that she could only work
part time. An attending physician, Dr. Slavin, did not offer a conflicting opinion. He appeared
to concur that appellant could work with some restrictions, but never clearly indicated the nature
and extent of those restrictions. There were no probative medical reports from attending
4

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

5

Gary R. Sieber, 46 ECAB 215 (1994).

6

An application for reconsideration must be received by OWCP within one year of the date of OWCP’s decision.
20 C.F.R. § 10.607(a).
7

5 U.S.C. § 8123(a) provides that if there is a disagreement between and attending physician and an OWCP
physician, a third physician shall be selected to make an examination.

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physicians establishing a conflict with Dr. Bernstein. The Board finds that the selection of
Dr. Komanduri was as a second opinion physician. Even though the reports of Dr. Komanduri
are not entitled to the special weight afforded to the opinion of referee specialist resolving a
conflict of medical opinion,8 his reports can still be considered for their own intrinsic value and
can still constitute the weight of the medical evidence.9
As to appellant’s light-duty job, it is not clear from the record what evidence OWCP
relied on to make a determination that appellant had a permanent job offer that would be
available at any time. A SOAF asserts that the job was permanent as of June 2000, but this is not
supported by the evidence of record. The October 26, 2000 letter from the employing
establishment provided a job offer that gave no indication it was permanent in nature it was a
rehabilitation assignment that would be reviewed three months later. If the job was reviewed and
made permanent or if the employing establishment specifically indicated that, the modified job
was available at the time of the termination, OWCP did not cite to any specific evidence in this
regard.10 Appellant had not worked since 2003. OWCP could have requested that the
employing establishment make a suitable job offer and if she did not accept the offer, then a
suitable work termination could have been pursued under 5 U.S.C. § 8106(c).
Based on the evidence therefore the medical issue as to disability was whether appellant
continued to have an employment-related disability for the carrier position she was performing
when injured in 1989.11 Dr. Komanduri was the only physician to provide detailed medical
reports based on an accurate background. He provided a complete history and results on
examination. Dr. Komanduri’s March 8, 2010 report referred to an original diagnosis of
arachnoiditis but finds that appellant was not currently being treated for an employment-related
condition and she had returned to a preinjury state. He noted that the diagnostic studies showed
only degenerative disc disease and this condition is not an accepted employment-related
condition. The April 30, 2010 report notes some hesitation in stating that appellant had no work
restrictions, but Dr. Komanduri did not find any specific employment-related disability.
Moreover, any ambiguity as to disability was clearly attributable to his findings that appellant
had magnified her symptoms, making a precise determination impossible.
The Board accordingly finds that the opinion of Dr. Komanduri represents the weight of
the medical evidence and is sufficient to meet OWCP’s burden of proof. There were no reports
from attending physicians as of June 30, 2010 that provided a complete background and a
probative opinion that appellant continued to have an employment-related disability. OWCP
8

It is well established that when a case is referred to a referee specialist 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. Harrison Combs, Jr., 45 ECAB 716, 727 (1994).
9

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

10

The Board notes that the record contains a June 9, 2010 letter from the employing establishment (submitted to
the record on February 6, 2012) stating that appellant had requested a “restoration to employment” and she would be
notified of the results. It is not clear what the employing establishment subsequently determined.
11

The term “disability” as used under FECA means the incapacity, because of injury in employment, to earn the
wages which the employee was receiving at the time of injury. Donald Johnson, 44 ECAB 540, 548 (1993);
20 C.F.R. § 10.5(f).

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properly terminated wage-loss compensation effective July 3, 2010. Appellant may submit new
evidence or argument with a written application 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.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail,
she must establish by the weight of the reliable, probative and substantial evidence that she had an
employment-related disability which continued after termination of compensation benefits.12
ANALYSIS -- ISSUE 2
Having properly terminated wage-loss compensation effective, the burden shifted to
appellant to establish employment-related disability after July 3, 2010. The Board notes that her
attending physicians, which included Drs. Slavin, Anitescu, Watson and Neckrysh, did not
provide medical reports which addressed the causal relationship between a diagnosed condition
and the employment injury. Nor did the physicians discuss specific work restrictions or
disability for work based on an employment injury. The medical evidence of record is
insufficient to establish that appellant was disabled due to residuals of her accepted conditions.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate wage-loss compensation
effective July 3, 2010. With respect to disability after that date, appellant did not meet her
burden of proof.

12

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 16, 2013 is affirmed.
Issued: July 7, 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
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________

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

Docket No. 14-315
Issued: May 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 21, 2013 appellant filed a timely appeal of a September 11, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying wage-loss
compensation and an August 19, 2013 decision suspending her entitlement to compensation.
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.
ISSUES
The issues are: (1) whether appellant established that she is entitled to wage-loss
compensation for the period September 9 to October 8, 2011 causally related to a February 9,
2009 employment-related injury; and (2) whether OWCP met its burden of proof to suspend
appellant’s compensation benefits in accordance with 5 U.S.C. § 8123 of FECA on the grounds

1

5 U.S.C. § 8101 et seq.

that she refused to cooperate with a scheduled medical examination scheduled for
December 21, 2012.
On appeal appellant argues that OWCP erred in adjudicating her claim and requested
transfer of jurisdiction of her claim. She also argues that OWCP is prohibited from issuing any
decisions under either claim file as the Board has sole jurisdiction
FACTUAL HISTORY -- ISSUE 1 -- OWCP FILE NO. xxxxxx098
On February 18, 2009 appellant, then a 34-year-old mail handler operator, filed a
traumatic injury claim alleging that on February 9, 2009 she injured her left arm and back due to
moving a bulk mail cart. OWCP accepted the claim for lumbar strain and left shoulder and arm
strain.2
Appellant did not stop work and accepted a modified job offer on June 15, 2009. She
returned to her regular job duties on October 15, 2009. The report of her physician, Dr. James
Billings, noted that she was at maximum medical improvement. He returned appellant to work
at full duty without restriction.
In a September 8, 2011 disability statement, Dr. Sara C. Vizcay, a treating physician,
indicated that appellant was disabled for work from September 8 to October 6, 2011. She
diagnosed cervical strain/sprain and lumbar strain/sprain with left shoulder and right knee
complaints.
In a September 8, 2011 duty status form report, Dr. Vizcay stated that appellant was
unable to work for the next four weeks. She listed an injury date of February 9, 2009 and
diagnoses of cervical, lumbar and left shoulder sprains/strains.
On September 8, 2011 Dr. Vizcay performed a physical examination and provided
findings from her examination. Under history she noted that in 2011 appellant “injured low back
and right lower extremity with aggravation of the 2009 injured (sic).” Diagnoses included
cervical, lumbar and right shoulder strains. Dr. Vizcay recommended physical therapy and that
appellant avoid pushing, climbing, crawling, pulling and extended sitting, walking or standing
without frequent breaks.
On October 12, 2011 appellant filed claims for wage-loss compensation for the period
September 8 to October 8, 2011.
By letter dated October 18, 2011, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised as to the medical and factual
evidence required to support her claim and given 30 days to provide this information.
In a November 8, 2011 report, Dr. Samy F. Bishai, a treating orthopedic surgeon, noted
the date of injury as February 9, 2011 and indicated that appellant was disabled for working from

2

OWCP assigned claim number xxxxxx098.

2

September 9 to October 8, 2011. Further, he opined that appellant’s disability was due to an
aggravation of a preexisting condition and not to a spontaneous worsening of her condition.
By decision dated November 29, 2011, OWCP denied appellant’s wage-loss
compensation claim for the period September 9 to October 8, 2011. It noted that her treating
physician advised that her disability was not spontaneous, but was due to an aggravation of her
condition. OWCP noted that appellant’s physician did not identify the cause of the aggravation.
Subsequent to OWCP’s decision, it received an additional November 8, 2011 report from
Dr. Bishai. Diagnoses included chronic lumbosacral strain, lumbar disc syndrome, bulging
lumbosacral spinal discs, upper back muscle strain, right leg radiculopathy, left shoulder
tendinitis and bursitis and left shoulder internal derangement. Dr. Bishai reiterated his opinion
that appellant’s disability was due to an additional aggravation of the February 9, 2011 injury.
He noted that appellant sustained an aggravation of the February 9, 2011 injury and second work
injury on June 9, 2011.
In a January 31, 2012 report, Dr. Bishai provided a history of appellant’s injuries on
February 9 and June 9, 2011. He stated that she sustained an aggravation of her accepted
condition on June 9, 2011. Dr. Bishai opined that appellant was entitled to receipt of wage-loss
compensation for the period September 9 to October 8, 2011.
On November 27, 2012 appellant requested reconsideration.
By decision dated February 15, 2013, OWCP denied modification.
On July 21, 2013 appellant requested reconsideration. She argued that OWCP’s findings
were clearly erroneous and that she was entitled to wage-loss compensation for the period
claimed. Appellant also contended that OWCP failed to comply with its procedures in managing
her claims.
By decision dated September 11, 2013, OWCP denied modification.3 It found that
appellant had been paid wage-loss compensation for the period in question under File No.
xxxxxx258, i.e., July 29, 2011 to March 9, 2013, and that any disability was due to injuries
sustained under that claim. OWCP further found that, even if appellant established disability
under the current claim, she would not be entitled to wage-loss compensation as “FECA does not
allow concurrent payment of total disability compensation” where disability stems from multiple
files and injuries.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.5 For each period of disability
3

On September 17, 2013 OWCP combined File Nos. xxxxxx098, xxxxxx258 and xxxxxx723. File No.
xxxxxx098 was listed as the master file number. Under File No. xxxxxx723 OWCP accepted that appellant
sustained neck, left shoulder and left upper arm strains on March 31, 2009 due to pulling a heavy tray of mail off a
pallet of high heavy letter trays.
4

5 U.S.C. §§ 8101-8193

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claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.6 Whether a particular injury causes an employee to become
disabled for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.7
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his federal
employment, but who nonetheless has the capacity to earn the wages he was receiving at the time
of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
ANALYSIS -- ISSUE 1
Appellant claimed that she was totally disabled for work during the period September 9
to October 8, 2011 and thereby entitled to wage-loss compensation. OWCP denied the claim by
decisions dated November 29, 2011, February 15 and September 11, 2013 based on a lack of
medical evidence establishing that her disability was due to her accepted February 9, 2009
employment injury. OWCP, in its September 11, 2013 decision, also found that appellant had
received wage-loss compensation for this period under File No. xxxxxx258. To the extent that
she is claiming compensation for a period in which she was already paid compensation, the
Board finds that appellant is not entitled to be paid twice for the same period of wage loss.12 For
any claimed time in this period for which appellant has not already received compensation, she
5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, supra note 5; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

11

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

12

See N.F., Docket No. 10-1399 (issued February 9, 2011); J.M., Docket No. 08-2244 (issued June 10, 2009);
E.B., Docket No. 06-1585 (issued February 22, 2007); Amos Mack, 39 ECAB 1364 (1988).

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must provide reasoned medical evidence supporting that her disability is causally related to her
February 9, 2009 employment injury.
In support of her claim, appellant submitted reports from Drs. Bishai and Vizcay. In
various reports, Dr. Bishai attributed appellant’s disability for the period September 9 to
October 8, 2011 to an aggravation of her February 9, 2009 employment injury. He noted that
this was not a spontaneous worsening of her condition, but was due to an aggravation on
June 9, 2011. Similarly, Dr. Vizcay attributed appellant’s disability to an aggravation of 2009
injury. Neither physician provided any medical rationale explaining how or why the February 9,
2009 employment injury was the cause of appellant’s disability for work during the period in
question. Without such rationale explaining why appellant’s inability to work is attributable to
the accepted February 9, 2009 work injury, the reports of Drs. Bishai and Vizcay are insufficient
to meet appellant’s burden of proof to establish disability for the period claimed.13 Furthermore,
both physicians attributed appellant’s disability to an aggravation of the February 9, 2009
employment injury at work on June 9, 2011, a period not the subject of the current appeal.
On appeal appellant contends that OWCP erred in the manner in which it combined her
three claims (File Nos. xxxxxx098, xxxxxx723 and xxxxxx258) and that it erred in not making
File No. xxxxxx098, as the oldest claim, the master file number. She also contends that OWCP
erred in failing to properly update the injury codes when it combined her claims. Next appellant
argues that all decisions should be set aside as OWCP improperly combined her claims. Under
OWCP procedures, cases should be combined when claims are reported for a similar condition
or part of the body, two or more separate injuries occurred on the same date or correct
adjudication of the issues depends on frequent cross-reference between files.14 Thus, OWCP
followed the procedure manual when it combined File Nos. xxxxxx098, xxxxxx723 and
xxxxxx258. As to updating the injury codes, appellant has submitted no evidence showing that
OWCP erred in the injury codes it assigned to her claims.
Appellant also argues that OWCP erred in denying medical authorization for an
orthopedic mattress and physical therapy. The Board’s jurisdiction is limited to reviewing final
adverse decisions of OWCP issued under FECA within 180 days of an appeal to the Board.15
OWCP has not issued a final decision regarding denying authorization for physical therapy or an
orthopedic mattress within 180 days of appellant’s appeal to the Board. Thus, these issues are
not before the Board at this time.
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.

13

Deborah L. Beatty, 54 ECAB 340 (2003).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c) (February 2000).
15

20 C.F.R. §§ 501.2(c) and 501.3.

5

FACTUAL HISTORY -- ISSUE 2 -- OWCP FILE NO. xxxxxx258
On June 9, 2011 appellant filed a traumatic injury claim alleging that on that date she
injured her back, right knee and ankle while pushing an automated postal cart. She stopped work
that day. OWCP accepted the claim for cervical and lumbosacral sprains.16
By letter dated November 13, 2012, appellant was informed that an appointment for a
second opinion evaluation had been scheduled with Dr. William Dinenberg, a Board-certified
orthopedic surgeon, for November 30, 2012 at 10:30 a.m. On November 30, 2012 OWCP was
informed that appellant did not show up for the appointment with Dr. Dinenberg.
On December 5, 2012 OWCP informed appellant that an appointment for a second
opinion evaluation had been rescheduled with Dr. Dinenberg for December 21, 2012 at 11:30
a.m.
On December 7, 2012 OWCP placed appellant on the periodic rolls for temporary total
disability effective December 16, 2012. It informed her that payments had been issued for the
periods July 29, 2011 to May 30, 2012 and May 31 to December 15, 2012.
On December 21, 2012 OWCP was informed that appellant did not show up for the
appointment with Dr. Dinenberg.
On January 16, 2013 OWCP issued a notice proposing to suspend appellant’s
compensation on the grounds that she failed to appear for the examination scheduled with
Dr. Dinenberg on December 21, 2012. Appellant was informed of the penalty provision of
section 8123(d) of FECA and was given 14 days to provide in writing good cause for her failure
to appear. She was also advised to contact OWCP immediately if she intended to report for a
rescheduled examination with Dr. Dinenberg.
On January 28, 2013 appellant disagreed with the proposal to suspend her benefits. She
argued that there was no need for a second opinion evaluation as it was not mentioned in the
October 18, 2012 decision accepting her claim. Appellant alleged that OWCP’s referral for a
second opinion evaluation was illegal, untimely and improper. She also argued that the referral
subjected her to harassment, retaliation and hardship.
In a March 21, 2013 decision, OWCP finalized the proposed suspension, effective that
day. It found that appellant did not attend the appointment scheduled for December 21, 2012.
OWCP informed her that wage-loss compensation would be reinstated after she attended and
fully cooperated with an examination.
On July 21, 2013 appellant requested OWCP to vacate the March 21, 2013 decision on
the grounds that it was clearly erroneous.
By decision dated August 19, 2013, OWCP denied modification.

16

OWCP assigned claim number xxxxxx258.

6

LEGAL PRECEDENT -- ISSUE 2
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.17
The determination of the need for an examination, the type of examination, the choice of locale
and the choice of medical examiners are matters within the province and discretion of OWCP.18
OWCP’s federal regulations at section 10.320 provide that a claimant must submit to
examination by a qualified physician as often and at such time and places as OWCP considers
reasonably necessary.19 Section 8123(d) of FECA and section 10.323 of OWCP’s regulations
provide that, if an employee refused to submit to or obstructs a directed medical examination, his
or her compensation is suspended until the refusal or obstruction ceases.20 However, before
OWCP may invoke these provisions, the employee is provided a period of 14 days within which
to present in writing his or her reasons for the refusal or obstruction.21 If good cause for the
refusal or obstruction is not established entitlement to compensation is suspended in accordance
with section 8123 of FECA.22
ANALYSIS -- ISSUE 2
The Board finds that appellant refused to submit to the scheduled December 21, 2012
second opinion examination with Dr. Dinenberg and thus OWCP properly suspended appellant’s
compensation benefits pursuant to section 8123 of FECA. OWCP directed appellant to attend a
second opinion evaluation with Dr. Dinenberg, a Board-certified orthopedic surgeon. It properly
determined that it required an assessment of appellant’s employment-related condition, medical
treatment and whether any continuing disability was causally related to her accepted employment
injuries.
By letter dated November 13, 2012, OWCP informed appellant that a second opinion
evaluation was needed and scheduled the appointment for November 30, 2012. After appellant
failed to appear, on December 5, 2012 OWCP informed appellant that a second opinion
evaluation was needed and that her appointment with Dr. Dinenberg had been rescheduled for
December 21, 2012. These notices were sent to her address of record.

17

5 U.S.C. § 8123(a).

18

C.S., Docket No. 09-1597 (issued February 4, 2010); J.T., 59 ECAB 293 (2008). Dana D. Hudson, 57 ECAB
298 (2006); James C. Talbert, 42 ECAB 974 (1991).
19

20 C.F.R. § 10.320; see J.C., Docket No. 09-609 (issued January 5, 2010); J.T., supra note 18; Walter L.
Jordan, 57 ECAB 218 (2005).
20

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323. See J.C., supra note 19; Sharon Handy, 57 ECAB 446 (2006);
Maura D. Fuller (Judson H. Fuller), 56 ECAB 383 (2005).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.810.13(d) (September 2010). See J.C., supra note 19; Dana D. Hudson, supra note 18; Lynn C. Huber, 54 ECAB
281 (2002).
22

See J.C., supra note 19; Dana D. Hudson, supra note 18; Scott R. Walsh, 56 ECAB 353 (2005).

7

Appellant did not attend the scheduled appointment on December 21, 2012. In a
January 16, 2013 notice, OWCP afforded her 14 days to provide good cause in writing for her
failure to attend the rescheduled December 21, 2012 examination. Appellant was advised of the
penalty provision of section 8123(d) of FECA for failure to attend such an examination.
The Board has recognized OWCP’s responsibility in developing claims.23 Section 8123
authorizes an employee who claims disability as a result of federal employment to undergo a
physical examination as OWCP deems necessary. The determination of the need for an
examination, the type of examination, the choice of locale and the choice of medical examiners
are matters within the province and discretion of OWCP. The only limitation on this authority is
that of reasonableness.24
The referral to an appropriate specialist in appellant’s area at OWCP’s expense was not
unreasonable. The Board finds that appellant failed to attend the scheduled medical examination
on December 21, 2012 and did not provide good cause for her failure within 14 days of OWCP’s
January 16, 2013 notice of proposed suspension as she stated that she did not need an
examination and it was illegal for OWCP to schedule one. Additionally, she stated that the
referral subjected her to, inter alia, harassment. In this case, OWCP acted within its discretion
by referring appellant for a second opinion examination to assess residuals and disability related
to her employment-related conditions.
On appeal appellant contends that OWCP erred in suspending her benefits as it failed to
include all her accepted conditions under File Nos. xxxxxx098 and xxxxxx723. She also asserts
that the statement of accepted facts (SOAF) created on November 9, 2012 and September 5,
2013 is incorrect as it was only based on File No. xxxxx258 and did not include her injuries
under File Nos. xxxxxx098 and xxxxxx723. Appellant also argues that OWCP erred in failing to
combine all of her claims, failed to properly update the injury codes for her claims and failed to
include all of her accepted conditions in the SOAF. Contrary to appellant’s contentions, the
SOAF was correct as OWCP was determining the extent of any disability appellant sustained
from her June 9, 2011 employment injury. Appellant has provided no evidence supporting that
OWCP failed to properly update the injury codes or include all of her accepted conditions in the
SOAF. Thus, these arguments are found to be without merit.
Next appellant presents arguments regarding her pay rate, the alleged failure to apply
cost-of-living adjustments, that OWCP incorrectly deducted health and insurance benefits from
her wage-loss compensation. She requests OWCP be instructed to pay interest on her
compensation for improperly withholding benefits. None of these issues are before the Board.
The decisions appellant appealed concerned the suspension of her wage-loss compensation
benefits for failing to attend a scheduled medical examination and the denial of her claim for
wage-loss compensation for the period September 9 to October 8, 2011. As these issues are not

23

Scott R. Walsh, id.

24

20 C.F.R. § 10.320; see J.T., supra note 18.

8

in any final OWCP decision issued within 180 days of appellant’s appeal to the Board, they are
not within the Board’s jurisdiction.25
Appellant also argues that OWCP did not have jurisdiction to schedule a second opinion
evaluation for her to attend on March 24, 2014 as the Board and OWCP cannot have
simultaneous jurisdiction. OWCP cannot issue decisions on issues that are before the Board.26
However, the issue before the Board is whether OWCP properly suspended appellant’s
entitlement to compensation benefits for failing to undergo the December 21, 2012 scheduled
medical examination. As was noted above, the August 19, 2013 OWCP decision encompassed
this issue from which appellant timely filed an appeal within 180 days of its issuance. This is the
only suspension decision properly before the Board. Thus, the Board has no jurisdiction over
any subsequently-acquired examinations on this appeal.27
Appellant requests that the Board to transfer jurisdiction of her case. As discussed
previously, the Board’s jurisdiction is limited to final decisions of OWCP issued with 180 days
of an appeal to the Board. Thus, the Board does not have the jurisdiction to instruct OWCP to
transfer her claim.
CONCLUSION
The Board finds that appellant failed to establish entitlement to wage-loss compensation
for the period September 9 to October 8, 2011 causally related to her accepted February 9, 2011
employment injury. The Board further finds that OWCP met its burden of proof to suspend
appellant’s compensation benefits in accordance with 5 U.S.C. § 8123 of FECA on the grounds
that she refused to cooperate with a scheduled medical examination on December 21, 2012.

25

See 20 C.F.R. § 501.3(e).

26

See Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3).

27

See 20 C.F.R. § 501.2(c). Appellant has 180 days from the issuance of any final adverse decisions issued by
OWCP.

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 11 and August 19, 2013 are affirmed.
Issued: May 21, 2014
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Winterville, NC, Employer
__________________________________________

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

Docket No. 15-216
Issued: April 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 27, 2014 appellant filed a timely appeal from an April 29, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, and because more
than 180 days elapsed between the last merit decision, December 7, 2012, and the filing of this
appeal on October 27, 2014, the Board lacks jurisdiction to review the merits of this claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim as her request was untimely filed and failed to demonstrate
clear evidence of error.

1

5 U.S.C. §§ 8101-8193.

2

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On October 26, 2012 appellant, then a 47-year-old rural letter carrier, filed a traumatic
injury claim alleging that on October 20, 2012 she was involved in a motor vehicle accident in
the performance of duty. She alleged that she sustained a left shoulder strain and a possible left
scaphoid fracture. Appellant stopped work on October 20, 2012.
In an October 22, 2012 statement, appellant noted that she was in the process of making a
U-turn when she saw another car approaching. She advised that she stopped in the road because
she could not complete the turn safely and the other driver kept going and hit her postal vehicle.
Medical records that were submitted included an October 20, 2012 disability status report
from Vidant Medical Center with an illegible signature advising that appellant was able to return
to work on October 23, 2012, an October 25, 2012 emergency room report, in which
Dr. Nicholas Benson, Board-certified in emergency medicine, diagnosed a sprained neck and
wrist, and an October 26, 2012 disability status report in which a physician assistant found
appellant unable to work.
By letter dated November 5, 2012, OWCP notified appellant that evidence was
insufficient to establish her claim and advised her of the type of evidence needed.
On November 6, 2012 an employing establishment continuation of pay report reflected
that appellant was off work due to a fractured left scaphoid with immobilization of her left
thumb, wrist, and forearm. The report advised that her anticipated return to work was
November 20, 2012.
By decision dated December 7, 2012, OWCP denied appellant’s claim because the
medical evidence had not established a diagnosed condition causally related to the work-related
incident.
Appellant continued to submit evidence. In an October 20, 2012 diagnostic report,
Dr. Bruce Schroeder, a Board-certified diagnostic radiologist, noted that appellant had left
prominent snuffbox tenderness after a motor vehicle collision. He advised that an x-ray of the
left hand revealed no evidence of fracture or dislocation. Dr. Schroeder further noted that, if
there was a clinical concern for a radiographically occult scaphoid fracture, then he
recommended splinting with a repeat radiograph in 7 to 10 days or magnetic resonance imaging
(MRI) scan. In a November 5, 2012 disability status report, a physician assistant advised that
appellant was unable to work. In another November 19, 2012 disability status report,
Dr. Christopher Hasty, a Board-certified orthopedic surgeon, advised that appellant was able to
return to full duty without restrictions.
In a January 29, 2014 telephone call to OWCP’s district office, appellant alleged that she
had not received a development or denial letter. When advised that those letters were sent to the
address listed on her notice of traumatic injury, she stated that she had not been at that address in
over a year. OWCP representative further advised appellant that no returned mail had been
received. By letter dated January 30, 2014, appellant advised of her change of address.

2

On March 25, 2014 appellant requested reconsideration. She recounted how the motor
vehicle accident occurred and her actions and medical treatment thereafter. Appellant noted that
her address had changed and that she was unaware that her claim had been denied until
December 2013. Accident reports from October 20 and 23, 2012 were submitted. An employing
establishment accident investigation report advised that appellant was making a U-turn when
three-fourths of the way into the turn she came to a complete stop after seeing another vehicle
approaching. The other vehicle apparently did not see her until it was too late and collided with
her postal vehicle. The report advised that appellant was ticketed for failure to yield and noted
that she had previously injured her wrist in another work-related incident. Also submitted was
an October 20, 2012 emergency department discharge note indicating that she was diagnosed
with left wrist pain and motor vehicle collision muscle strain.
By decision dated April 29, 2014, OWCP denied appellant’s request for reconsideration
as untimely and found that there was no clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.3
Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth section 10.607 of OWCP regulations, if the claimant’s
application for review shows clear evidence of error on the part of OWCP.4 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.6
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
3

Id. at § 10.607(a) (2011).

4

Id. at § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000).

5

See Alberta Dukes, 56 ECAB 247 (2005).

6

Robert G. Burns, 57 ECAB 657 (2006).

3

made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.7 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.8
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
December 7, 2012. Appellant did not request reconsideration until March 25, 2014, more than
one year after the December 7, 2012 merit decision. Therefore, it was not timely filed.
Appellant has alleged that she did not receive the development letter or the decision letter
denying her claim. The record establishes that OWCP sent the December 7, 2012 decision to her
address on record at that time which was the same address provided on the notice of traumatic
injury. The presumption is that the decision was received as under the mailbox rule it was
mailed in the normal course of business to the address of record.9 Consequently, appellant must
demonstrate clear evidence of error by OWCP in denying her request for a merit review of her
claim.
The Board finds that appellant has not established clear evidence of error in OWCP’s
December 7, 2012 decision. Appellant submitted an October 20, 2012 diagnostic report from
Dr. Schroeder, who noted that she had left prominent snuffbox tenderness after a motor vehicle
collision. Dr. Schroeder advised that an x-ray of the left hand revealed no evidence of fracture or
dislocation. He further noted that, if there was a clinical concern for a radiographically occult
scaphoid fracture, then he recommended splinting with a repeat radiograph in 7 to 10 days or
MRI scan. Although this report provides a history of the injury, it is not sufficient to establish
clear evidence of error. Other medical evidence submitted after the December 7, 2012 decision
equally does not establish clear evidence of error.
Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.10 This evidence does not raise a substantial question
as to the correctness of OWCP’s decision in its denial of appellant’s claim.
Appellant also submitted several accident reports. However, the occurrence of the
October 20, 2012 work incident is not in dispute. The claim was denied because the medical
evidence did not establish that the incident caused an injury. Thus, this evidence is not relevant

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
8

Nancy Marcano, 50 ECAB 110 (1998).

9

See Kenneth E. Harris, 54 ECAB 502 (2003).

10

See supra note 7.

4

to the issue decided by OWCP.11 Consequently, OWCP properly found that the untimely
reconsideration request did not establish clear evidence of error.
On appeal, appellant argues that she was legitimately injured on the job and that she and
her supervisor followed the proper protocol. However, the Board does not have jurisdiction over
the merits of the claim. As explained, appellant’s request for reconsideration was untimely filed
and did not present clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See supra note 6.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
Issued: March 1, 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 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 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 March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

5

Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 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
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Birmingham, AL, Employer
__________________________________________

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

Docket No. 11-1937
Issued: April 6, 2012

Case Submitted on the Record

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

JURISDICTION
On August 25, 2011 appellant filed a timely appeal from the May 10, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her request for a schedule
award. 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 the evidence established that appellant sustained a permanent
impairment of her right eye.
FACTUAL HISTORY
On July 13, 2009 appellant, then a 47-year-old program support assistant, sustained an
injury in the performance of duty when she fell out of a transport van and hit her face and
1

5 U.S.C. § 8101 et seq.

shoulder on the wall of a parking deck. OWCP accepted her claim for fractured facial bones and
fractured right humerus.
Appellant submitted a September 3, 2009 report from Dr. Michael Vaphiades, a Boardcertified neurologist, who stated that he had performed eye surgery on her. Dr. Vaphiades’
examination revealed that her acuity, color vision, confrontational field, conjunctiva, cornea and
anterior chamber were normal and that her diplopia condition had seemingly resolved. The optic
nerves, however, had temporal cupping.
On March 4, 2010 Dr. Vaphiades indicated that appellant suffered from daily eye pain.
Appellant’s visual acuity was 20/20 with correction, but she had decreased supraduction of the
right eye due to trauma and entrapment of the inferior rectus muscle. She also had difficulty
judging distances. Dr. Vaphiades diagnosed diplopia (double vision).
On March 21, 2010 appellant requested a schedule award. OWCP routed the case file to
the district medical adviser (DMA) for review.
In an April 9, 2010 report, the DMA reviewed Dr. Vaphiades’ reports and concluded that
appellant had no permanent functional loss of use of her right eye. He based his conclusion on
findings, which showed no indication of interference with activities of daily living and normal
corrected vision.
In a decision dated April 12, 2010, OWCP denied appellant’s request for a schedule
award based on the report of the DMA. On May 10, 2010 appellant requested a review of the
written record.
In a letter dated September 1, 2010, OWCP advised appellant to submit a report from her
treating physician with an opinion regarding the degree of her permanent impairment related to
the accepted injury. Appellant was also asked to complete an application for a facial
disfigurement award.
In September 7, 2010 reports, Dr. Vaphiades stated that appellant had decreased
supraduction of the right eye, right hemifacial spasms and headaches. Acuity was 20/20 in the
right eye and optic nerves were tilted and cupped. Appellant had facial pain and twitching on the
right side. She had depth perception problems when driving at night, with a starburst effect.
In a September 15, 2010 report, Dr. Vaphiades provided a history of injury and treatment,
noting that appellant had undergone surgery for a fractured orbit and entrapment of the inferior
rectus muscles of the right eye. He indicated that she had developed chronic, disfiguring facial
spasms, but that her visual acuity was normal. Dr. Vaphiades opined that appellant’s disability
was due to diplopia and that she had reached maximum medical improvement (MMI), but stated
that he did not know the extent of her visual impairment.
On September 30, 2010 appellant submitted an application for facial disfigurement.
By decision dated November 9, 2010, an OWCP hearing representative vacated the
April 12, 2010 decision and remanded the case for further development of the medical evidence.
The hearing representative found that the DMA failed to describe how he reached his conclusion

2

through the application of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).2
On remand, OWCP prepared a statement of accepted facts and asked the DMA to review
the entire file again in order to determine whether appellant had any permanent impairment of
her right eye or any facial disfigurement. In a November 10, 2010 report, the DMA stated that
“the eye injury was evaluated by the DMA on April 9, 2010.” He requested current information
on the status. In a December 10, 2010 memorandum, OWCP asked the DMA to explain how the
conclusion was reached according to the sixth edition of the A.M.A., Guides that appellant had
no right eye impairment due to his work injury.
In a December 15, 2010 report, the DMA requested that OWCP obtain an impairment
rating from Dr. Vaphiades based on appellant’s uncorrected vision, as required by FECA
Bulletin number 09-03. On December 22, 2010 the DMA opined that the medical evidence was
insufficient to establish any ratable disfigurement entitling her to a schedule.
In a note dated December 30, 2010, Dr. Vaphiades stated that his office had not recently
checked appellant’s uncorrected vision. He noted that, as of July 21, 2009, her uncorrected
visual acuity in the right eye was 20/20.
In a report dated January 12, 2011, the DMA referred to Table 12-2 and Table 12-3 of the
sixth edition of the A.M.A., Guides and concluded that appellant had a zero percent visual
system impairment rating. Noting that appellant no longer had diplopia and that her uncorrected
vision was normal as of September 3, 2009, the DMA opined that she had reached MMI by that
date.
In a May 10, 2011 decision, OWCP denied appellant’s request for a schedule award for
right eye impairment, based upon the January 12, 2011 report of the DMA.3
On appeal, appellant contends that the medical evidence establishes that she has a
permanent impairment to her right eye due to the accepted injury based on conditions of
diplopia, which greatly impacts her activities of daily living.
LEGAL PRECEDENT
Section 8107 of FECA authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. For 100 percent loss of an eye, as
with blindness, FECA provides a maximum 160 weeks of compensation.4 Compensation for

2

A.M.A., Guides (6th ed. 2008).

3

By decision dated February 22, 2011, OWCP awarded appellant $400.00 for a facial disfigurement. Appellant
did not seek review of this decision by the Board. Therefore, the merits of the February 22, 2011 decision will not
be addressed herein.
4

5 U.S.C. § 8107(c)(5).

3

loss of binocular vision is the same as for loss of the eye.5 Partial losses are compensated
proportionately.6
Such loss or loss of use is known as permanent impairment. OWCP evaluates the degree
of permanent impairment according to the standards set forth in the specified edition of the
A.M.A., Guides.7 For impairment ratings calculated on and after May 1, 2009, it should advise
any physician evaluating permanent impairment to use the sixth edition and to report findings in
accordance with those guidelines.8
Although the A.M.A., Guides provides that impairment ratings should be based on the
best-corrected visual acuity,9 FECA mandates that the degree of loss of vision must be
determined without regard to correction.10
ANALYSIS
OWCP denied appellant’s schedule award claim based on the DMA’s conclusion that she
had a zero percent visual system impairment rating. The DMA’s report, however, is insufficient
to form the basis for a schedule award determination. Therefore, the May 10, 2011 decision will
be set aside and the case remanded for further development.
On December 15, 2010 the DMA requested an impairment rating from Dr. Vaphiades
based on appellant’s uncorrected vision, as required by FECA Bulletin number 09-03. When
Dr. Vaphiades indicated that he had not recently checked appellant’s uncorrected vision, the
DMA chose to rely on relied upon September 3, 2009 findings, which he found reflected that
appellant no longer had diplopia and that her uncorrected vision was normal as of that date. The
evidence, however, reflects that on March 4, 2010 six months later, Dr. Vaphiades diagnosed
diplopia and continued to do so in subsequent reports. The Board notes that appellant had not
reached MMI by September 3, 2009. On September 15, 2010 Dr. Vaphiades opined that her
disability was due to diplopia and that she had reached MMI. The Board finds that the DMA’s
reliance on that September 3, 2009 report was misplaced.
The Board finds that the DMA’s January 12, 2011 report does not adequately address the
provisions of the A.M.A., Guides. While he properly referred to Table 12-2 and Table 12-3 on
pages 288-89 in determining appellant’s visual acuity, the DMA failed to discuss whether there
5

Id. at § 8107(c)(14). See Russell E. Wageneck, 46 ECAB 653 (1995) (holding there is no provision under
section 8107 of OWCP for the combination of each eye into a schedule award for both eyes together, as there is for
loss of hearing in both ears; therefore, schedule awards are issued for each eye individually).
6

Id. at § 8107(c)(19).

7

20 C.F.R. § 10.404.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6(a) (January 2010).
9

A.M.A., Guides 283, 284, Chapter 12.2b.

10

5 U.S.C. § 8107(c)(19).

4

was evidence of visual field impairment or whether individual adjustments for functional vision
were appropriate pursuant to page 305 of the A.M.A., Guides.11 Therefore, his report is of
diminished probative value.
The Board finds that this case is not in posture for decision. Proceedings under FECA
are not adversarial in nature and OWCP is not a disinterested arbiter. While the claimant has the
burden to establish entitlement to compensation, OWCP shares responsibility in the development
of the evidence to see that justice is done.12 Once OWCP undertakes development of the record,
it must do a complete job in procuring medical evidence that will resolve the relevant issues in
the case.13 In this case, appellant submitted medical evidence in support of her schedule award
claim. OWCP began to develop the evidence by seeking an opinion from the DMA and
additional information from her treating physician. It failed, however, to obtain a rationalized
report from the DMA based upon a current physical examination of appellant. Without such
information, an informed decision cannot be reached on the relevant issue.
On remand, OWCP should further develop the medical evidence of record by requesting
that its medical adviser provide a reasoned opinion regarding appellant’s right eye impairment
explaining the basis of impairment under the sixth edition of the A.M.A., Guides. If its medical
adviser is unable to render a reasoned opinion fully explaining the application of the A.M.A.,
Guides, OWCP shall refer appellant to an appropriate Board-certified specialist for a second
opinion regarding the extent of her eye impairment. Following this and any other further
development as deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

Adjustments for such functions as contrast sensitivity, glare sensitivity, color vision defects and binocularity,
stereopsis, suppression and diplopia are permitted, although they must be well documented and should be limited to
an increase in impairment by, at most, 15 points. A.M.A., Guides 305.
12

See LL, Docket No. 10-16 (issued October 1, 2010); Phillip L. Barnes, 55 ECAB 426 (2004); Horace L. Fuller,
53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell, 34 ECAB 1223 (1983).
13

Richard F. Williams, 55 ECAB 343, 346 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 6, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF DEFENSE,
Fort Belvoir, VA, Employer
__________________________________________

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Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2164
Issued: July 20, 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 August 24, 2010 appellant filed a timely appeal from a March 15, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which affirmed the termination of
her compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 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 OWCP met its burden of proof to terminate appellant’s
compensation benefits for her accepted injury effective July 15, 2009.
FACTUAL HISTORY
On August 19, 2008 appellant, then a 46-year-old supply technician filed a traumatic
injury claim alleging that, on August 15, 2008, while attempting to board a freight elevator a

1

5 U.S.C. §§ 8101-8193.

safety gate struck her on the head and neck. OWCP accepted contusions to the face, scalp and a
neck and cervical strain. Appellant stopped work on August 15, 2008.
Appellant was treated by Dr. J. Abbott Byrd, III, a Board-certified orthopedic surgeon,
from October 8, 2008 to January 26, 2009. Dr. Byrd diagnosed worsening cervical strain and
mechanical neck pain superimposed upon preexisting degenerative changes at C5-6. He noted
that an October 24, 2008 magnetic resonance imaging (MRI) scan of the cervical spine revealed
a small left paracentral disc protrusion at C4-5 mildly deforming the left ventral cord, severe C56 spondylosis and disc space narrowing with severe left foraminal stenosis and a small right
paracentral disc protrusion at C6-7 mildly deforming the right ventral cord. On January 7, 2009
Dr. Byrd noted appellant’s continued neck pain with radiation into her right arm. He opined that
her symptoms were due to the right C5-6 disc herniation which was causally related to the work
injury. Dr. Byrd recommended a C5-6 and C6-7 anterior cervical discectomy and fusion and
noted that appellant was disabled pending surgery.
On December 29, 2008 OWCP referred appellant to Dr. Steven C. Blasdell, a Boardcertified orthopedics surgeon, for a second opinion. In a February 19, 2009 report, Dr. Blasdell
reviewed the records and examined her. On examination, the neck revealed moderate
paracervical muscle tightness and tenderness and restricted cervical flexion and extension.
Dr. Blasdell diagnosed cervical spondylosis and C5-6 degenerative disc disease. He noted that
Dr. Byrd’s recommended discectomy was not medically necessary to correct the work injury and
that appellant’s current disability was not related to the accepted injury. Dr. Blasdell found that
she recovered from the accepted conditions of cervical strain, head and neck contusions and
required no further medical treatment. Appellant’s current symptoms of pain related to her
underlying and preexisting cervical degenerative condition. Dr. Blasdell advised that she could
return to work with permanent neck restrictions which were related to her preexisting underlying
cervical degenerative condition and unrelated to the August 15, 2008 work injury.
On April 2, 2009 OWCP issued a notice of proposed termination of compensation
benefits on the grounds that Dr. Blasdell’s report dated February 19, 2009 established no
residuals of the accepted contusions of the face, scalp and neck or cervical strain.
Appellant submitted reports from Dr. Byrd dated April 8 and 22, 2009. Dr. Byrd
disagreed with Dr. Blasdell and noted that appellant’s neck and upper extremity pain were
related to the August 15, 2008 work injury. He continued to recommend a C5-6 and C6-7
anterior cervical discectomy and fusion and noted the surgery was directly related to the
August 15, 2008 work injury.
OWCP found a conflict of medical opinion arose between Dr. Byrd, appellant’s treating
physician, who supported ongoing residuals of appellant’s work-related injuries and total
disability, and Dr. Blasdell, an OWCP referral physician, who determined that appellant’s workrelated conditions had resolved and she could return to her preinjury position as a supply
technician with restrictions related to the preexisting cervical degenerative condition.
On May 14, 2009 OWCP referred appellant to Dr. Felix M. Kirven, a Board-certified
orthopedic surgeon selected as the impartial medical specialist. In a report dated May 27, 2009,
Dr. Kirven reviewed the records provided and performed a physical examination. He reviewed

2

appellant’s job requirements, noted a history of her work injury and reviewed treatment
following the injury. On examination, the cervical spine revealed no spasm, lateral rotation of 75
degrees, extension of 60 degrees, pain with light finger touching, negative Spurling’s maneuver
and the axial compression test revealed neck pain which was an inappropriate illness behavior.
The thoracic spine had normal thoracic kyphosis with no tenderness or spasm. There was normal
strength of deltoids, biceps, triceps and wrist flexors and extensors. Lower extremity motor
examination revealed no abnormalities at the hip, knee, ankle and plantar and intact sensation at
C3-8, T1, L1-5 and S1 bilaterally and L1-5 and S1 bilaterally with normal reflexes of the upper
and lower extremities. Based on the examination, Dr. Kirven noted that appellant had symptom
magnification and functional overlay. The surgical procedures proposed by Dr. Byrd were not
related to the August 15, 2008 work injury, rather they were related to degenerative changes.
Dr. Kirven’s examination revealed no physical findings to indicate work-related disability; rather
appellant displayed symptom magnification. He noted that appellant had no residuals of the
accepted cervical strain or contusions and that these conditions were resolved. Dr. Kirven
reviewed appellant’s job description and noted that she could return to work full duty without
restrictions. Appellant’s current medical condition was related to symptom magnification or
inappropriate illness behavior that complicated her return to work. Dr. Kirven advised that work
injury did not aggravate her preexisting degenerative condition. He opined that appellant
reached maximum medical improvement and did not require additional treatment. Dr. Kirven
also provided a July 7, 2009 work capacity evaluation which advised that appellant could return
to her usual job with no limitations.
By decision dated July 15, 2009, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day.
On August 13, 2009 appellant requested a telephonic oral hearing which was held on
December 23, 2009. In reports dated January 7 to August 5, 2009, Dr. Byrd noted appellant’s
continued complaint of right upper extremity pain due to the C5-6 and C6-7 disc herniation and
recommended an anterior cervical discectomy and fusion. He reviewed Dr. Kirven’s report and
reiterated his opinion that appellant’s symptoms and need for surgery were directly related to her
work injury. On August 7, 2009 Dr. Byrd performed an anterior cervical discectomy and fusion
at C5-6 and C6-7 and diagnosed spondylosis at C5-6 with foraminal stenosis and right C6-7 disc
herniation extruded. In reports dated August 24 to January 27, 2010, he noted that appellant was
progressing well postoperatively with improved radicular pain. Dr. Byrd returned appellant to
work light duty on November 16, 2009 and to full duty on January 4, 2010. In a January 27,
2010 report, Dr. Byrd opined that appellant sustained a right C6-7 disc herniation as well as a
cervical contusion and mechanical pain in part due to the preexisting C5-6 degenerative changes
which became symptomatic following her work injury of August 15, 2008. He opined that the
work injury necessitated appellant’s August 7, 2009 surgery.
In a decision dated March 15, 2010, the hearing representative affirmed the July 15, 2009
OWCP decision.

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.3 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.4
ANALYSIS
OWCP accepted appellant’s claim for work-related contusions of the face, scalp and neck
and a cervical strain. It subsequently found a conflict in medical opinion. Appellant’s attending
physician, Dr. Byrd, a Board-certified orthopedic surgeon, supported ongoing residuals of her
work-related injuries, the need for surgery and total disability. Dr. Blasdell, OWCP’s referral
physician, determined that appellant’s work-related conditions had resolved, that she did not
require surgery and had no residuals of the work injury. He found she could return to her supply
technician position with restrictions based on her preexisting underlying cervical degenerative
disease. Consequently, OWCP referred appellant to Dr. Kirven to resolve the conflict.
The Board finds that the opinion of Dr. Kirven is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight and establishes that
appellant’s work-related contusion of the face, scalp and neck and cervical strain has ceased.
Where there exists a conflict of medical opinion and the case is referred to an impartial specialist
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, is entitled to special weight.5
In a May 27, 2009 report, Dr. Kirven reviewed appellant’s history, reported findings and
noted that she exhibited no objective complaints or definite work-related abnormality in her
condition. He found symptom magnification and functional overlay. Dr. Kirven further found
that appellant did not exhibit any findings with regard to the accepted contusion of the face, scalp
and neck and cervical strain. He found no evidence of cervical muscle spasms and noted normal
range of motion, and normal strength and sensation. Dr. Kirven opined that appellant’s accepted
cervical strain and contusions of the face, scalp and neck were resolved. He reviewed her job
description and noted that she could return to work full duty without restrictions. Dr. Kirven
advised that the examination failed to reveal any objective findings to indicate that appellant had
any disability present relating to the accepted contusion of the face, scalp and neck and cervical
strain that would impede her ability to return to work as a full-duty mail processor without
2

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

3

Mary A. Lowe, 52 ECAB 223 (2001).

4

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

4

restrictions. He noted that her current medical condition was related to symptom magnification
or inappropriate illness behavior which complicated her return to work. Dr. Kirven opined that
appellant reached maximum medical improvement and did not require additional treatment or
surgery.
The Board finds Dr. Kirven had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. Dr. Kirven is a specialist in the appropriate field. At the time
benefits were terminated he clearly opined that appellant had no work-related reason for
disability and he found no evidence to support continuing residuals of the accepted conditions.
Dr. Kirven’s opinion as set forth in his report of May 27, 2009 is found to be probative evidence
and reliable. The Board finds that his opinion constitutes the weight of the medical evidence and
is sufficient to justify the Office’s termination of benefits for the accepted conditions of
contusion of the face, scalp and neck and cervical strain.
After Dr. Kirven’s examination, appellant submitted reports from Dr. Byrd dated
January 7, 2009 to January 27, 2010, who continued to recommend an anterior cervical
discectomy and fusion at C5-6 and C6-7. Dr. Byrd noted that his opinion differed from
Dr. Kirven as he believed appellant’s symptoms and need for surgery were directly related to her
work injury. Similarly, in reports dated August 24, 2009 to January 27, 2010, he noted that
appellant was progressing well after an August 7, 2009 surgery and returned appellant to work
light duty on November 16, 2009 and full duty on January 4, 2010. Although Dr. Byrd
supported that appellant continuing symptoms and need for surgery were due to appellant’s work
injury, his opinion on causal relationship was conclusory without any additional rationale.6 He,
as noted above, was on one side of a conflict that was resolved by Dr. Kirven. The Board has
held that reports from a physician who was on one side of a medical conflict that an impartial
specialist resolved, are generally insufficient to overcome the weight accorded to the report of
the impartial medical examiner, or to create a new conflict.7 Thus, Dr. Byrd’s reports are
insufficient to overcome those of Dr. Kirven or to create a new conflict in the medical evidence.
On appeal, appellant asserts that Dr. Kirven was insufficient to establish that appellant’s
accepted conditions had resolved and that OWCP should have accepted additional conditions.
As explained, Dr. Kirven resolved the medical conflict and Dr. Byrd’s additional reports were
not sufficient to create a new conflict. The Board also notes that OWCP’s March 15, 2010
decision did not specifically adjudicate whether appellant had additional conditions causally
related to her August 15, 2008 work injury. Consequently, the Board does not have jurisdiction
over this matter.8
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.
6

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
7

I.J., 59 ECAB 408 (Docket No. 07-2362, issued March 11, 2008). See Dorothy Sidwell, 41 ECAB 857 (1990).

8

See 20 C.F.R. § 501.2(c).

5

CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate compensation
benefits effective July 15, 2009 and that appellant failed to establish that she had any continuing
disability due to his accepted condition after July 15, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 15, 2010 is affirmed.
Issued: July 20, 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

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