United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Austin, TX,
Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0382
Issued: February 22, 2022

Case Submitted on the Record

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

JURISDICTION
On December 9, 2019 appellant, through counsel, filed a timely appeal from an October 3,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 3, 2019 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period December 18, 2011 through January 12, 2016 causally related to her accepted
employment injuries.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decisions and order are incorporated herein by reference. The
relevant facts are as follows.
On December 3, 2009 appellant, then a 60-year-old tax examiner, filed an occupational
disease claim (Form CA-2) alleging that she developed hand, back, neck, shoulder, and arm
spasms as a result of repetitive data entry due to factors of her federal employment. She stopped
work on June 18, 2009 and returned to work on July 22, 2009. By decision dated March 17, 2010,
OWCP accepted appellant’s claim for brachial neuritis or radiculitis. Appellant stopped work on
September 26, 2011 and filed a claim for compensation (Form CA-7) for disability from work
commencing September 26, 2011.
In a November 15, 2011 attending physician’s report (Form CA-20), Dr. Mark Queralt, a
Board-certified physiatrist, diagnosed occupational neuralgia, thoracic outlet-type syndrome, right
over left cervical brachial symptoms, and probable myofascial cond ition. He checked a box
marked “Yes” to indicate that the diagnosed conditions were caused or aggravated by an
employment activity.
Dr. Queralt placed appellant off work from October 3 through
December 5, 2011. In a December 5, 2011 report, he reported that appellant complained of
cervical and upper arm pain and directly attributed her symptoms to her work. Dr. Queralt noted
negative cervical and lumbar nerve root tension. In a work status report of the same date, he held
appellant off work from November 7, 2011 through January 10, 2012.
By decision dated January 19, 2012, OWCP denied appellant’s claim for compensation,
finding that she had not established disability from work for the period September 26 through
December 17, 2011 causally related to the accepted employment injury.
In a January 24, 2012 report, Dr. Anthony Hicks, a Board-certified internist, noted that
appellant was incapacitated through January 31, 2012 as a result of her work-related injuries and
released her to work with restrictions. In February 14, March 13, and April 18, 2012 reports, he
advised that she was unable to work.
On February 16, 2021 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. By decision dated May 23, 2012, OWCP’s hearing
representative affirmed the January 19, 2012 decision.

4

Docket No. 13-2093 (issued May 6, 2014); Order Remanding Case, Docket No. 13-1666 (issued August 18,
2014); Docket No. 15-0325 (issued October 2, 2015); Docket No. 15-0020 (issued August 17, 2016).

2

On November 26, 2012 appellant underwent cervical surgery, including discectomy and
fusion at C5-6 and C6-7. After extensive development of the evidence, OWCP determined that
the surgery was not authorized as it was not necessitated by an accepted employment injury.
Appellant requested reconsideration and continued to submit reports of Dr. Hicks, who
found periods of disability in 2012.
By decision dated January 16, 2013, OWCP denied modification.
On May 9, 2014 appellant requested reconsideration and submitted an April 10, 2013 letter
from Dr. David S. Litton, a clinical psychologist, who noted that he first evaluated appellant on
November 7, 2012 at which time he observed that she had symptoms of post-traumatic stress
disorder (PTSD) and anxiety. Dr. Litton diagnosed PTSD and generalized anxiety disorder, and
noted that appellant reported pain from her work-related brachial injury, as well as problems with
a hostile supervisor and receiving accommodation for her work limitations. He noted, “[i]t is my
professional opinion that her injury and ongoing chronic pain are competent to have directly
contributed to and exacerbated her emotional condition.”
By decision November 6, 2014, OWCP denied appellant’s claim for compensation for
disability from work for the period September 26 through December 17, 2011.
Appellant appealed to the Board and, by decision dated October 2, 2015, the Board
affirmed the November 6, 2014 decision, finding that the medical evidence of record was
insufficient to establish disability from work for the period September 26 through
December 17, 2011.5
On December 18, 2015 OWCP referred appellant for second opinion examination and
evaluation, along with a statement of accepted facts (SOAF) and a series of questions, to
Dr. Randall McIntyre, a Board-certified psychiatrist. It requested that he provide an opinion on
work-related residuals and disability. In a January 25, 2016 report, Dr. McIntyre reported the
findings of his January 6, 2016 physical examination. He noted that appellant reported symptoms
of PTSD including shortened sense of future, feeling emotionally isolated, and feelings of being
trapped and claustrophobic in enclosed spaces. Dr. McIntyre determined that appellant had workrelated PTSD and noted, “[t]he claimant was totally disabled and subsequently both her PTSD and
neck injuries have continued that disability.” He explained that appellant’s preexisting PTSD was
aggravated by employment factors, noting that appellant had to work long hours with a verbally
abusive supervisor and that she also suffered from the effects of her work-related shoulder and
hand pain. Dr. McIntyre advised that appellant currently had symptoms suggestive of PTSD, but
noted that they were not as severe as they were in 2008. He also found that appellant had high
anxiety and poor stress tolerance.
By decision dated June 6, 2016, OWCP expanded the acceptance of appellant’s claim to
include aggravation of adjustment disorder with mixed anxiety and depressed mood.
Appellant subsequently asked that Dr. McIntyre substantiate the length of time that her
PTSD had prevented her from working. In an October 10, 2016 response to her inquiry,
Dr. McIntyre advised that appellant cited the episodic presence of PTSD including symptoms of
5

Docket No. 13-2093 (issued May 6, 2014).

3

nightmares, ﬂashback, foreshortened sense of future, exaggerated startle, and emotional numbness
first commencing in 1995. Appellant also reported subsequent episodes commencing in
March 2009, secondary to a work incident, which were documented by Dr. Glynn Graves, a Boardcertified family medicine specialist. Dr. McIntyre indicated that appellant had presented him with
a letter written by Dr. Litton explaining she had signs and symptoms of PTSD during her first
examination on November 7, 2012, which continued through April 10, 2015, the date of the letter.
He noted that, in connection with the production of his January 25, 2016 report, there were no
questions regarding the time frame of the diagnosis that led OWCP to conclude that PTSD and
accompanying disability only occurred “subsequent to the report.” Dr. McIntyre indicated, “[i]n
view of the above information, that assumption appears incorrect.”
On April 19, 2018 appellant filed a Form CA-7 claim for compensation for the period
October 3, 2011 through January 12, 2016. She resubmitted a copy of Dr. McIntyre’s January 25,
2016 report.
In a May 4, 2018 compensation claim development letter, OWCP notified appellant of the
deficiencies of her disability claim and advised her of the type of factual and medical evidence
needed. It afforded her 30 days to submit the necessary evidence.
On May 11, 2018 OWCP received a copy of Dr. McIntyre’s October 10, 2016 letter, which
was previously of record.
By decision dated July 18, 2018, OWCP denied appellant’s claim, finding that she had not
met her burden of proof to establish work-related disability for the period December 18, 2011
through January 12, 2016.6
On March 4, 2019 appellant, through counsel, requested reconsideration of the July 18,
2018 decision. She submitted a July 25, 2018 report from Dr. Sara Sundstrom, a clinical
psychologist, who advised that she had work-related PTSD and generalized anxiety disorder, and
was unable to work.
Appellant also submitted a May 11, 2019 report from Dr. Seth Bricklin, a clinical
psychologist, who noted that, based on his April 22, 2019 evaluation, appellant had a preexisting
PTSD condition due to multiple nonwork-related traumas. However, Dr. Bricklin found that this
condition had been aggravated by factors of her federal employment, including a hostile work
environment and chronic pain from her accepted work-related physical condition. He diagnosed
work-related PTSD of a chronic nature with moderate-to-severe chronic pain and determined that
appellant had been totally disabled due to this condition since November 7, 2012, the date that a
prior attending physician, Dr. Litton, had first diagnosed PTSD.
On May 22, 2019 OWCP referred appellant for an impartial medical examination and
evaluation, along with a SOAF and a series of questions, to Dr. Gregory Paul, a Board-certified
psychiatrist. It requested that he provide an opinion regarding whether appellant had work-related
residuals or disability.

6

OWCP’s decision notes the period as October 3, 2011 through January 12, 2016; however, the Board, in its
October 2, 2015 decision, previously affirmed OWCP’s denial of disability for the period September 26 through
December 17, 2011. See infra note 22.

4

In a July 15, 2019 Form CA-20 report, Dr. Bricklin diagnosed PTSD and checked a box
marked “Yes” to indicate that the diagnosed condition was employment related. He found that
appellant had been disabled by her PTSD condition from November 7, 2012 until the present.
In a September 23, 2019 report, Dr. Paul, serving as the impartial medical examiner,
discussed appellant’s factual and medical history and reported the findings of his September 15,
2019 evaluation. He advised that appellant had experienced symptoms of PTSD of a nonindustrial
nature since she was approximately 19 years old. Dr. Paul diagnosed PTSD, chronic anxiety,
chronic pain, degenerative disc disease, and hypertension. He noted that appellant was not
currently receiving psychotherapy or medication management for residual symptoms of her
emotional conditions. Dr. Paul indicated that appellant did not exhibit signs of significant
cognitive limitations during his evaluation of her. He found that appellant’s PTSD and anxiety
conditions, which he characterized as moderate in nature, did not prevent her from working in her
regular position as a tax examiner at any point since October 3, 2011. In a September 23, 2019
work capacity evaluation (Form OWCP-5c), Dr. Paul indicated that, due to her age, appellant
should work on a part-time basis in a position that did not involve significant cognitive or physical
demands.
By decision dated October 3, 2019, OWCP denied modification of the July 18, 2018
decision.7
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.8
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. 9 Disability is thus not
synonymous with physical impairment, which may or may not resu lt in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA. 11 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 or her employment, he or she is
entitled to compensation for loss of wages. 12
7

By separate decision also dated October 3, 2019, OWCP expanded the acceptance of appellant’s claim to include
aggravation of PTSD, unspecified.
8

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
9

20 C.F.R. § 10.5(f).

10

See L.W., Docket No. 17-1685 (issued October 9, 2018).

11

See K.H., Docket No. 19-1635 (issued March 5, 2020).

12

See D.R., Docket No. 18-0323 (issued October 2, 2018).

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The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the accepted employment injury.13
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. 14
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 15 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 16 In situations where the case is properly referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.17
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP found that a conflict in the medical opinion evidence existed between Dr. Bricklin,
appellant’s treating physician, and Dr. McIntyre, OWCP’s second opinion physician, as to whether
appellant had work-related residuals or disability for the period December 18, 2011 through
January 12, 2016. The Board finds, however, that Dr. McIntyre did not address whether appellant
was disabled from work during the specific claimed period. The Board thus finds his opinion is
of diminished probative value and insufficient to create a conflict in medical opinion with
Dr. Bricklin.18
On May 22, 2019 OWCP referred appellant to Dr. Paul for an impartial medical evaluation;
however, as no true conflict existed in the medical opinion evidence, the Board finds that his report
may not be afforded the special weight of an impartial medical examiner (IME) and should instead

13

Y.S., Docket No. 19-1572 (issued March 12, 2020).

14

J.B., Docket No. 19-0715 (issued September 12, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

15

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
16

P.R., Docket No. 18-0022 (issued April 9, 2018).

17

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).
18

Supra note 16.

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be considered for its own intrinsic value. 19 The referral to Dr. Paul is therefore considered to be
that of a second opinion evaluation. 20
The Board finds that this case is not in posture for decision, as there remains an unresolved
conflict in medical evidence. Specifically, a conflict of medical opinion exists between
Dr. Bricklin and Dr. Paul with regard to whether appellant had disability from work for the period
December 18, 2011 through January 12, 2016 causally related to her accepted employment
injuries.21
In a September 23, 2019 report, Dr. Paul advised that appellant had experienced symptoms
of PTSD of a nonindustrial nature since she was approximately 19 years old. He diagnosed PTSD,
chronic anxiety, chronic pain, degenerative disc disease, and hypertension. Dr. Paul noted that
appellant was not currently receiving psychotherapy or medication management for residual
symptoms of her emotional conditions. He indicated that appellant did not exhibit signs of
significant cognitive limitations during his evaluation of her. Dr. Paul found that appellant’s PTSD
and anxiety conditions, which he characterized as moderate in nature, did not prevent appellant
from working in her regular position as a tax examiner at any point since October 3, 2011.22
In contrast, Dr. Bricklin, an attending physician, found in a May 11, 2019 report that
appellant had work-related PTSD of a chronic nature with moderate-to-severe chronic pain and
determined that she had been totally disabled due to this condition since November 7, 2012, the
date that a prior attending physician, Dr. Litton, had first diagnosed her with PTSD. Dr. Bricklin
advised that appellant had a preexisting PTSD condition due to multiple nonwork -related traumas,
but found that this condition had been aggravated by factors of her federal employment, including
a hostile work environment and chronic pain from her accepted work -related physical condition.
In a July 15, 2019 Form CA-20 report, he diagnosed PTSD and checked a box marked “Yes” to
indicate that the diagnosed condition was employment related. Dr. Bricklin found that appellant
had been disabled by her PTSD condition from November 7, 2012 until the present.
The Board, therefore, finds that the case must be remanded b ecause there exists an
unresolved conflict in medical opinion evidence regarding whether appellant had work-related
disability for the period December 18, 2011 through January 12, 2016, pursuant to 5 U.S.C.
§ 8123(a). OWCP shall refer appellant, together with the case record and an updated SOAF, to a
specialist in the appropriate field of medicine for an impartial medical examination to resolve the

19

See S.W., Docket No. 21-0290 (issued November 5, 2021); F.R., Docket No. 17-1711 (issued September 6, 2018);
Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).
20

L.G., Docket No. 20-0611 (issued February 16, 2021). See also M.G., Docket No. 19-1627 (issued April 17,
2020); S.M., Docket No. 19-0397 (issued August 7, 2019) (the Board found that at the time of the referral for an
impartial medical examination there was no conflict in medical opinion evidence; therefore, the referral was for a
second opinion examination); see also Cleopatra McDougal-Saddler, id. (the Board found that, as there was no
conflict in medical opinion evidence, the report of the physician designated as the IME was not afforded the special
weight of the evidence, but instead considered for its own intrinsic value as he was a second opinion specialist).
21

See supra notes 12 and 14.

22

In a September 23, 2019 Form OWCP-5c report, Dr. Paul indicated that appellant should work on a part-time
basis, but he clarified that this restriction was necessitated by appellant’s age.

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conflict. Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: February 22, 2022
Washington, DC

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

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

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

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

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

Docket No. 20-1535
Issued: April 7, 2021

Case Submitted on the Record

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

JURISDICTION
On August 17, 2020 appellant filed a timely appeal from an April 28, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective April 24, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her earnings
had she accepted a temporary limited-duty assignment.
FACTUAL HISTORY
On January 9, 2018 appellant, then a 25-year-old city carrier assistant (CCA), filed a
traumatic injury claim (Form CA-1), alleging that she injured her right ankle on January 8, 2018
1

5 U.S.C. § 8101 et seq.

when she slid on ice while descending porch steps while in the performance of duty. She stopped
work on January 8, 2018 and was treated in a hospital emergency department.2 OWCP accepted
the claim for a right ankle contusion and right ankle sprain. It subsequently expanded its
acceptance of the claim to include instability of the right ankle.
Dr. Michael P. Banas, a Board-certified orthopedic surgeon, provided reports from
February 2 through March 29, 2018, who diagnosed a right ankle contusion with bony
inflammation of the distal tibia, right ankle lateral ligamentous sprain, and right ankle midfoot
sprain/contusion.3 He noted that physical therapy and an ankle brace had improved appellant’s
symptoms.4 Dr. Banas held appellant off from work.
On June 12, 2018 Dr. John A. Lynott, Board-certified in orthopedic surgery and orthopedic
sports medicine, performed an OWCP-authorized right ankle arthroscopy with debridement, open
peroneal tendon exploration and debridement, and open lateral ligament reconstruction.5
Appellant remained off work. OWCP paid her wage-loss compensation for work absences
commencing June 11, 2018.
On January 9, 2019 OWCP obtained a second opinion report from Dr. Peter A. Feinstein,
a Board-certified orthopedic surgeon. Dr. Feinstein reviewed medical records and a statement of
accepted facts (SOAF). On examination he noted multiple surgical scars on right foot, sensory
changes in the right lateral foot, and an antalgic gait. Dr. Feinstein returned appellant to full-time
sedentary duty with restrictions of no standing, squatting, kneeling, or climbing, and no walking
other than bathroom breaks and entering and leaving the premises. In an April 3, 2019 addendum
report, he clarified that appellant was physically able to drive a motor vehicle to work and that his
work restrictions were temporary lasting 12 to 18 months.6

2
January 12, 2018 right ankle, foot, and hip x-rays were negative for fracture and dislocation. A January 18, 2018
magnetic resonance imaging (MRI ) scan of appellant’s right ankle demonstrated contusions of the distal tibia, talus,
calcaneus, and cuboid bones, with no fracture or internal derangement of the ankle joint.
3
A March 21, 2018 MRI scan of the right ankle demonstrated contusions of the talus, calcaneus, improving, less
edema, tenosynovitis of the flexor hallucis longus tendon, flexor digitorum longus tendon, and tibialis posterior
tendon, and edema of the fibulocalcaneal ligament suggesting a partial tear.
4

Appellant participated in physical therapy treatments from February through May 2018.

5

Appellant participated in physical therapy treatments from July 2018 through April 2019.

6
On December 3, 2018 OWCP offered appellant a position as a modified CCA at the sedentary physical demand
level. The job required answering telephones, filing, stamping envelopes, processing box mail, and unspecified duties
within her restrictions. Appellant declined the offer on December 14, 2018, and voluntarily resigned from the
employing establishment that day. By proposed notice dated April 30 and finalized May 31, 2019, OWCP terminated
her wage-loss compensation effective May 31, 2019 under 20 C.F.R. § 10.500(a) as she declined to accept the offered
modified-duty assignment. On June 14, 2019 appellant requested reconsideration. She asserted that she resigned
from the employing establishment due to managerial harassment. By decision dated September 11, 2019, OWCP
vacated the May 31, 2019 decision and reinstated wage-loss compensation benefits. It found that the December 3,
2018 job offer did not adequately describe the assigned duties.

2

In a January 17, 2019 report, Dr. Lynott found the offered position suitable work within
appellant’s medical limitations. He returned her to work effective December 14, 2018.
In a March 25, 2019 report, Dr. Lynott noted that appellant had experienced right ankle
swelling after recent long walks and had somewhat limited inversion and eversion of the right
ankle.
In a September 30, 2019 letter, the employing establishment advised that appellant had
begun private sector employment in July 2019 as a mailroom clerk and backup driver for a health
care technology company.
In an October 28, 2019 report, Dr. Lynott noted that appellant felt unable to deliver mail
due to continued discomfort and paresthesias in the right foot and ankle. On examination he
observed limited range of right ankle motion with full strength. Dr. Lynott indicated that
“extended walking as required to deliver mail” would result in incomplete healing. He completed
a work capacity evaluation -- musculoskeletal conditions (Form OWCP-5c) returning appellant to
full-time medium duty with squatting and climbing limited to four hours. Dr. Lynott also noted a
10-pound weight restriction for climbing and a 15-pound weight restriction for squatting.
On October 28, 2019 OWCP referred appellant, the medical record, and updated SOAF to
Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon, for a second opinion regarding
whether appellant continued to have residuals of the accepted injury and if she could return to fullduty work. In a November 19, 2019 report, Dr. Draper noted his review of the medical record and
SOAF. On examination of the right ankle, he found well-healed surgical scars, 15 degrees
extension, 40 degrees flexion, 20 degrees inversion, 10 degrees eversion, and a negative anterior
Drawer sign. Dr. Draper diagnosed a right ankle sprain, right ankle instability, and postsurgical
status. He opined that appellant had reached maximum medical improvement (MMI), but she
remained symptomatic and her accepted conditions had not completely resolved. Dr. Draper found
appellant able to perform modified-duty work with standing and walking for up to four hours,
pushing and pulling up to six hours, and lifting limited to 50 pounds occasionally and 25 pounds
frequently.
On January 23, 2020 OWCP reduced appellant’s wage-loss compensation to zero effective
July 8, 2019, as she no longer had “any disability as defined in 20 C.F.R. § 10.5(f).” It found that
her actual private sector earnings of $475.98 a week as a mailroom clerk/backup driver exceeded
the wages for her job and step as a CCA when injured of $401.94 a week.
On January 28, 2020 the employing establishment offered appellant a temporary light-duty
assignment as a CCA, casing mail/centralized delivery up to four hours, curbside delivery up to
six hours, and park and loop delivery up to four hours. The physical requirements were listed as
sitting/driving up to six hours, walking and standing up to four hours, lifting and carrying up to 25
pounds frequently and 50 pounds occasionally up to six hours. The position had a variable
schedule of 33 to 40 hours a week, with wages of $570.24 to $691.20 a week. Appellant refused
the position and did not report for duty.
In a notice of proposed termination dated March 23, 2020, OWCP proposed to terminate
appellant’s wage-loss compensation in accordance with 20 C.F.R. § 10.500(a) based on her refusal

3

of the January 28, 2020 temporary light-duty position. It advised appellant that it had reviewed
the work restrictions provided by Dr. Draper and found that his opinion represented the weight of
the medical evidence. OWCP further determined that the position offered appellant was within
her restrictions. It informed her of the provisions of 20 C.F.R. § 10.500(a) and advised her that
any claimant who declined a temporary light-duty assignment deemed appropriate by OWCP was
not entitled to compensation for total wage loss. OWCP noted that the offered pay rate was greater
than that when disability began and, therefore, he “would not be entitled to ongoing wage-loss
compensation.” It afforded appellant 30 days to accept the assignment and report to duty or
provide a written explanation of her reasons for not accepting the assignment. Appellant did not
respond.
In an April 24, 2020 e-mail, the employing establishment confirmed that the offered
position remained open and available.
By decision dated April 28, 2020,7 OWCP finalized the March 23, 2020 proposed notice
of termination and terminated appellant’s wage-loss compensation, effective April 24, 2020,
because she failed to accept the January 28, 2020 temporary light-duty assignment in accordance
with 20 C.F.R. § 10.500(a). It found that the weight of the medical evidence rested with
Dr. Draper, who provided temporary restrictions. OWCP indicated that its procedures provided
that a temporary light-duty assignment could be provided to an employee during a period of
recovery, and that on April 24, 2020 the employing establishment confirmed that the assignment
remained available. As appellant would have sustained no wage loss had she accepted the
assignment, OWCP determined that she was not entitled to wage-loss compensation; however, her
medical benefits and entitlement to a schedule award were unaffected.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.8
OWCP regulations at section 10.500(a) provide in relevant part:
“(a) Benefits are available only while the effects of a work-related condition
continue.
“Compensation for wage loss due to disability is available only for any periods
during which an employee’s work-related medical condition prevents [him or her]
from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for any wage loss claimed on a [Form]
CA-7 to the extent that evidence contemporaneous with the period claimed on a
[Form] CA-7 establishes that an employee had medical work restrictions in place;
that light duty within those work restrictions was available; and that the employee
7

On its face, OWCP’s decision is dated both April 24, 2020 and April 28, 2020. The decision was imaged into
the electronic case record on April 28, 2020.
8

D.K., Docket No. 19-1178 (issued July 29, 2020); S.F., 59 ECAB 642 (2008).

4

was previously notified in writing that such duty was available. Similarly, an
employee receiving continuing periodic payments for disability was not prevented
from earning the wages earned before the work-related injury if the evidence
establishes that the employing [establishment] had offered, in accordance with
OWCP procedures, a temporary light-duty assignment within the employee’s work
restrictions.”9
When it is determined that an appellant is no longer totally disabled from work and is on
the periodic rolls, OWCP’s procedures provide that the claims examiner should evaluate whether
the evidence of record establishes that light-duty work was available within his or her restrictions.
The claims examiner should provide a pretermination or prereduction notice if appellant is being
removed from the periodic rolls.10 When the light-duty assignment either ends or is no longer
available, the claimant should be returned to the periodic rolls if medical evidence supports
continued disability.11
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation, effective April 24, 2020.
The record indicates that the January 28, 2020 job offer was temporary and in writing. It
therefore comported with the procedural requirements of 20 C.F.R. § 10.500(a).12
The evidence of record establishes that, as of April 24, 2020, the date OWCP terminated
appellant’s wage-loss compensation, there was a conflict of medical opinion evidence between
Dr. Draper, OWCP’s second opinion orthopedic surgeon, and appellant’s physician Dr. Lynott, a
treating orthopedic surgeon, as to whether appellant had the ability to perform the duties of the
offered temporary modified rural carrier position.13
Dr. Lynott began treating appellant in June 2018 and on June 12, 2018 performed
authorized right ankle arthroscopy with open lateral ligament reconstruction. He initially held her
off work, and on December 14, 2018, returned her to modified work. In an October 28, 2019 chart
note, Dr. Lynott indicated that “extended walking as required to deliver mail” would result in
incomplete healing of the accepted injury. In an accompanying work capacity evaluation, he found
appellant able to perform full-time sedentary or medium level work with weight limitations for
climbing and squatting.

9

20 C.F.R. § 10.500(a).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9c(1)
(June 2013).
11

Id.

12

Id.

13

F.R., Docket No. 20-0789 (issued December 1, 2020); D.K., supra note 8.

5

In contrast, in his November 19, 2019 report, Dr. Draper opined that appellant could
perform full-time modified duty with standing and walking up to four hours and pulling and
pushing up to six hours. This difference of opinion is crucial as the offered modified position
required walking and standing for up to four hours a day. Dr. Draper found appellant able to
perform these duties, whereas Dr. Lynott opined that she could not.
The Board thus finds that there is an unresolved conflict of medical evidence between the
opinions of Dr. Lynott and Dr. Draper as to whether appellant could perform the duties of the
offered position on April 24, 2020, the effective date of the termination of her wage-loss
compensation. Therefore, OWCP has not met its burden of proof to terminate appellant’s wageloss compensation as it should have referred her for an impartial medical evaluation to resolve the
conflict prior to a termination of wage-loss compensation benefits, pursuant to 5 U.S.C. § 8123(a).
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective April 24, 2020, pursuant to 20 C.F.R. § 10.500(a), based on her
earnings had she accepted a temporary limited-duty assignment.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 09-2229
Issued: August 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 8, 2009 appellant, through her representative, filed a timely appeal from
the June 1, 2009 merit decision of the Office of Workers’ Compensation Programs, which denied
continuing compensation for the accepted medical conditions. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has residuals of a right carpal tunnel syndrome or thoracic
outlet syndrome causally related to her 1990 employment injury.
FACTUAL HISTORY
On May 14, 1990 appellant, then a 35-year-old distribution clerk, filed an occupational
disease claim alleging that she sustained carpal tunnel syndrome in her right wrist as a result of
constant repetitive motion in the performance of duty. The Office accepted her claim for right

carpal tunnel syndrome and right shoulder strain.
temporary total disability on the periodic rolls.1

Appellant received compensation for

Effective March 31, 1996, the Office terminated appellant’s compensation for the
accepted medical conditions. On January 31, 1997 an Office hearing representative affirmed the
termination of benefits based on the weight of the medical evidence but found that a conflict had
subsequently arisen on whether she continued to have right carpal tunnel syndrome causally
related to the accepted work activities.2
After receiving the opinion of an impartial medical specialist, the Office denied
continuing compensation. In a September 6, 2001 decision, the Board found that, as the Office
had met its burden of proof to terminate compensation benefits, the burden shifted to appellant to
establish that she had a condition or disability causally related to her employment injury.3 The
Board noted that the statement of accepted facts did not reflect the Office’s acceptance of
thoracic outlet syndrome and that the impartial medical specialist did not address that condition
or the accepted right shoulder strain or prior electrodiagnostic studies.4 The Board set aside the
Office’s denial of continuing compensation and remanded the case for a new impartial medical
specialist.
On October 23, 2003 the Office referred appellant, together with the medical record and a
statement of accepted facts, to Dr. George P. Glenn, Jr., a Board-certified orthopedic surgeon, for
an impartial medical evaluation.5 On November 4, 2003 Dr. Glenn reviewed appellant’s file and
the statement of accepted facts, which he stated showed a work-related right carpal tunnel
syndrome, a right shoulder strain and a thoracic outlet syndrome. He reviewed various medical
reports and clinical studies. Dr. Glenn related appellant’s history and complaints and his
findings on physical examination. Addressing the accepted right shoulder strain, he noted that
the evidence-based literature would not support a claim for strain extending beyond a rather
short, finite period of time. Appellant had a normal range of right shoulder motion without pain
or tenderness. Give-away weakness was not secondary to pain and had no basis in organic
pathology. Weakness was not associated with any discernible shoulder girdle atrophy.
Appellant had no residual subjective complaints referable to the right shoulder. Dr. Glenn
concluded that the injury appellant sustained to the right shoulder was resolved without residual.

1

Appellant sustained an injury in the performance of duty on July 13, 1984 when a bundle of catalogs fell. The
Office accepted that claim for right shoulder strain. OWCP File No. xxxxxx713.
2

After an Office second opinion physician reported no objective findings, including a negative Tinel’s and
Phalen’s sign at the wrist, appellant’s physician reported a positive Tinel’s sign and noted a median nerve
neuropathy.
3

Docket No. 00-1894 (issued September 6, 2001).

4

The record on the whole supports that the Office did not accept thoracic outlet syndrome. The condition is
parenthetically identified as an accepted medical condition on the Office’s Form CA-800.
5

On October 28, 2003 appellant’s representative wrote to the Office to acknowledge his receipt of the referral
letter.

2

Addressing the accepted thoracic outlet syndrome, Dr. Glenn noted that appellant had
bilateral cervical ribs, a congenital condition frequently associated with fibrous band. As a
consequence, the pathophysiology for outlet syndrome preexisted appellant’s federal
employment. The available history suggested that work activity, particularly overhead lifting
and stretching, would have aggravated the underlying pathophysiologic factors, which would
permit a thoracic outlet syndrome. Dr. Glenn considered the aggravation to be temporary. He
explained there was no hard and fast rule to determine the exact time the aggravation ceased, but
within a reasonable probability one could accept as the target date January 5, 1996, the date a
second opinion physician reported no objective findings. Further, appellant’s physicians
reported maximum medical improvement by January 13, 1994 and again on April 6, 1994, as
well as a plateau on January 7, 1997. As appellant had learned to adjust her activities so as not to
precipitate any symptoms, Dr. Glenn concluded that aggravation from work factors had long
since resolved, although the predisposition for thoracic outlet syndrome was still present in terms
of the cervical ribs.
Addressing the accepted right carpal tunnel syndrome, Dr. Glenn noted that appellant
currently showed none of the corroborating signs or symptoms of residuals. The Tinel’s sign
response did not produce a characteristic distribution. The Phalen’s tests were normal. There
was no evidence of thenar muscle weakness or atrophy. There was no median nerve sensory
deficit, and the electrodiagnostics performed in October 2001 were normal. Dr. Glenn concluded
that appellant therefore showed no evidence of any residual right carpal tunnel syndrome.
On September 23, 2004 Dr. Glenn reviewed EMG and nerve conduction studies obtained
on December 11, 2003. He found that the ulnar slowing with absence of denervation was not
part of appellant’s clinical picture, an incidental finding of virtually no significance. Dr. Glenn
added that the reported absence of radiculopathy or plexopathy further substantiated his opinion
from November 4, 2003.
In a decision dated October 6, 2008, the Office denied continuing compensation. It found
that Dr. Glenn’s opinion represented the weight of the medical evidence and established no
residuals of the accepted conditions.
In a decision dated June 1, 2006, an Office hearing representative affirmed. He found
that Dr. Glenn’s reports were sufficient to establish that all injury-related conditions had
resolved.
On appeal, appellant’s representative contends that the Office failed to notify him of the
referral to Dr. Glenn, which affected appellant’s ability to challenge the referee selection. He
argued there is no proof that the Office selected Dr. Glenn from the Physicians Directory System
(PDS); that Dr. Glenn’s opinion is tainted because he obtained EMG testing from someone who
had previously performed EMG testing on appellant; and the statement of accepted facts
provided to Dr. Glenn did not include thoracic outlet syndrome as an accepted condition.
Appellant’s representative adds there is no indication in Dr. Glenn’s report that he was provided
with the statement of accepted facts. He argues that Dr. Glenn made positive findings on
examination, including a blunting sensation in both hands, weakness in the hands and arms,
sensory deficit from the right elbow to the wrist and further blunting sensation half way up the
right wrist. Further, appellant’s representative argues that Dr. Glenn reported appellant’s

3

thoracic outlet syndrome to be preexisting, contrary to the Office’s acceptance of the condition
as a work injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.6 Where
the Office meets its burden of proof to terminate compensation benefits, the burden is on the
claimant to establish that any subsequent disability is causally related to the accepted
employment injury.7
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.8 When there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.9
ANALYSIS
To resolve the conflict on whether appellant continued have residuals of an employmentrelated right carpal tunnel syndrome or thoracic outlet syndrome,10 the Office properly referred
her to Dr. Glenn, a Board-certified orthopedic surgeon, for an impartial medical evaluation. It
provided Dr. Glenn with appellant’s medical record and a statement of accepted facts so he could
base his opinion on a proper factual and medical foundation. Dr. Glenn demonstrated his
familiarity with the case by relating appellant’s history and reviewing her medical reports and
clinical studies.
After examining appellant and describing her complaints, Dr. Glenn concluded that she
no longer had residuals from a right carpal tunnel syndrome or thoracic outlet syndrome causally
related to her federal employment. His opinion was clear and unequivocal. Dr. Glenn supported
his opinion with medical rationale. As for carpal tunnel syndrome, appellant showed none of the
signs or symptoms of residuals and electrodiagnostics in October 2001 were normal. As for
thoracic outlet syndrome, Dr. Glenn explained that appellant had bilateral cervical ribs, a
congenital condition frequently associated with fibrous band, which served as a preexisting
6

5 U.S.C. § 8102(a).

7

Maurice E. King, 6 ECAB 35 (1953); Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of
compensation payments, warranted on the basis of the medical evidence, the burden shifts to the claimant to show
by the weight of the reliable, probative and substantial evidence that, for the period for which he claims
compensation, he had a disability causally related to the employment resulting in a loss of wage-earning capacity).
8

5 U.S.C. § 8123(a).

9

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

10

There is no conflict on the accepted right shoulder strain.

4

pathophysiology for outlet syndrome. He believed the available history of work activity
suggested an aggravation of this underlying pathophysiology, which permitted thoracic outlet
syndrome; but Dr. Glenn considered the aggravation to be temporary. Appellant learned to
adjust her activities so as not to precipitate any symptoms her physicians had reported maximum
medical improvement in the mid 1990s and a second opinion physician reported no objective
findings in 1996. While appellant continued to have a congenital predisposition for thoracic
outlet syndrome, the aggravation caused by work activity had resolved. Dr. Glenn reported that
the EMG and nerve conduction studies obtained on December 11, 2003, which showed an
absence of radiculopathy, further substantiated his opinion.
The Board finds that Dr. Glenn’s opinion is based on a proper background and is
sufficiently well rationalized that it must be given special weight. As the weight of the medical
opinion evidence establishes that appellant no longer suffers from a right carpal tunnel syndrome
or thoracic outlet syndrome causally related to her 1990 employment injury, the Board finds that
appellant has not met her burden to show that she is entitled to continuing compensation. The
Board will affirm the Office’s June 1, 2009 decision.
Counsel contends that the Office failed to notify him of the referral to Dr. Glenn, but the
record shows that he acknowledged receipt of the referral letter by October 28, 2003, a week
before the scheduled examination. The fact that the Office did not send the referral letter directly
to the representative is therefore harmless error.11 Appellant’s representative expressed no
objection to Dr. Glenn’s selection at that time and his current objection is untimely.12 Moreover,
the record establishes that the Office referred appellant to Dr. Glenn through the PDS
appointment schedule.
Physicians previously associated with a claimant may not serve as impartial medical
specialists.13 Counsel cites no authority to support his assertion that an impartial medical
specialist may not obtain a diagnostic study, such as an EMG, from a physician who previously
tested a claimant. Appellant’s representative does not explain how this would undermine the
appearance of impartiality. It is the responsibility of the medical referee to explain how any such
testing pertains to the findings on examination.
Although the record does not contain the statement of accepted facts sent to Dr. Glenn, he
noted more than once that the statement of accepted facts reflected the Office’s acceptance of
thoracic outlet syndrome. He understood the medical condition to be employment related. There
11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.0500.4.d
(May 2003) (the Office will notify the claimant and the representative); id., Part 2 -- Claims, Developing and
Evaluating Medical Evidence, Chapter 2.0810.14.b (July 2000) (the claimant and representative, if any, must be
notified in writing of the name and address of the physician to whom he or she is being referred, as well as the date
and time of the appointment); id., Part 2 -- Claims, Communications, Chapter 2.0300.4.3 (February 2000) (where the
employee has an attorney or other legal representative, the original of any letter to the claimant should be sent to that
person, with a copy to the claimant).
12

See M.A., 59 ECAB ___ (Docket No. 07-1344, issued February 19, 2008) (finding that the claimant’s objection,
made 25 days before the scheduled examination by the impartial medical specialist, was timely).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.0500.4.b(3)
(May 2003).

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is no factual basis for the assertion that that statement of accepted facts did not include thoracic
outlet syndrome as an accepted condition.
As for the blunting sensation in appellant’s hands, Dr. Glenn explained that this
obviously did not follow a dermatomal distribution. He did not report a positive Tinel’s sign for
median nerve compression. From a strength perspective, Dr. Glenn reported that appellant
demonstrated complete give away weakness while acknowledging she was not experiencing any
pain. He reported inconsistency in her response to examination of the ulnar nerve in the cubital
groove. Dr. Glenn explained that grip strength testing was considered invalid because of the
absence of a characteristic bell-shaped curve.
Dr. Glenn did not report that appellant’s thoracic outlet syndrome was preexisting, as
asserted. He reported that appellant had a congenital pathophysiology of the cervical ribs that
predisposed her to aggravations that would permit thoracic outlet syndrome. Dr. Glenn reported
that her work activities appeared to have caused such an aggravation but any such aggravation
was temporary and had ceased. The report of Dr. Glenn establishes that appellant no longer had
an employment-related aggravation. The congenital pathophysiology, however, remains.14
CONCLUSION
The Board finds that appellant has not met her burden to establish that she continues to
suffer from a right carpal tunnel syndrome or thoracic outlet syndrome causally related to her
1990 employment injury. The weight of the medical opinion evidence establishes that her
employment-related medical conditions have resolved.

14

When an aggravation is temporary and leaves no permanent residuals, compensation is not payable for periods
after the aggravation has ceased. See Raymond W. Behrens, 50 ECAB 221 (1999).

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Washington, DC, Employer
__________________________________________

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

Docket No. 08-1680
Issued: December 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 27, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decisions dated November 2, 2007 and February 26, 2008. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
shoulder conditions as a result of a traumatic injury in the performance of duty on
April 12, 2007.
FACTUAL HISTORY
Appellant, a 51-year-old program specialist, filed a CA-1, traumatic injury claim, dated
August 24, 2007. She initially alleged that on April 14, 20071 she was searching for bread
1

Appellant subsequently clarified by letter dated October 1, 2007 that the alleged injury had occurred on
April 12, 2007, not April 14, 2007.

pudding in a cooler when moisture accumulated on her sterling silver bracelet. As appellant paid
for her bread pudding, she received an electrical shock to her right arm and shoulder from the
cash register. Evidence submitted in support of this claim included: leave slips; a request for
physical therapy; and a report from Dr. Edward J. Bieber, an orthopedic surgeon, dated
July 3, 2007. In the July 3, 2007 report, Dr. Bieber diagnosed appellant with right shoulder
subacromomial syndrome, possible rotator cuff tear and right joint pathology. He noted that
appellant had reported right arm pain for the last two months and that she had stated that “this
occurred after she received an electric shock.” Appellant states, “it jolted her arm.” Dr. Bieber
did not offer a medical opinion regarding the cause of appellant’s diagnosed conditions.
By letter dated September 27, 2007, the Office notified appellant that the evidence
submitted was insufficient to support her claim because it did not contain a diagnosis of any
condition resulting from her alleged injury and lacked a physician’s opinion explaining how the
alleged injury resulted in the condition diagnosed. In response to this notice, appellant submitted
a letter requesting the Office change the date of injury from April 12 to 14, 2007, and a portion
of the development letter with a statement indicating appellant sustained an injury while
employed by the Department of Health and Human Services.
By decision dated November 2, 2007, the Office denied appellant’s claim for
compensation because the evidence submitted was insufficient to establish she sustained an
injury as defined by the Federal Employees’ Compensation Act.
On November 30, 2007 appellant requested review of the written record. As part of this
filing, she submitted a letter dated November 21, 2007 from Dr. Bieber, who diagnosed appellant
as having right shoulder rotator cuff tendinitis and acromioclavicular (AC) joint sprain.
Dr. Bieber’s letter noted appellant’s history of injury as “patient states that she injured her
shoulder at work with the electric shock which caused a sudden jerking of her shoulder.” He
thereafter concluded that “[i]t is very conceivable that this could have had its origin with that
initial injury, particularly since the pain started immediately thereafter.”
By decision dated February 26, 2008, the Office hearing representative modified the
November 2, 2007 decision to accept that an injury occurred but affirmed the denial of
compensation on the grounds that the record failed to establish that she sustained the diagnosed
shoulder conditions were a result of the accepted employment event.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim including: the individual is an employee of the United States within
the meaning of the Act; the claim was filed within the applicable time limitation of the Act; an
injury was sustained in the performance of duty as alleged; and, that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury. These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.2
2

Gary J. Watling, 52 ECAB 357 (2001).

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician(s)
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
In the present case, the Office has accepted that the alleged injury occurred as alleged,
that is that she sustained an electric shock from a cash register on April 12, 2007. It has also
concluded however that the medical evidence is insufficient to support appellant’s claim that her
various right shoulder conditions, diagnosed as: right shoulder rotator cuff tendinitis, AC joint
sprain, right shoulder subacrominial syndrome, possible right rotator cuff tear, and right joint
pathology, are causally related to the accepted injury. Although appellant submitted reports from
her treating physician, Dr. Bieber, noting these diagnoses and appellant’s history of injury, this
evidence does not address causation or describe, with detailed rationale, the relationship between
the diagnosed conditions and an employment-related incident. The Board has consistently held
that a medical report that does not contain a rationalized opinion on causal relationship is of
limited probative value.7

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
7

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee s condition is of limited probative value on the issue of causal
relationship).

3

Dr. Bieber repeated appellant’s statement that her shoulder conditions were caused by an
involuntary reflexive jerk resulting from appellant’s exposure to an electrical shock. His report
is of limited probative value because his conclusions are, at best, speculative. The substantive
paragraph of Dr. Bieber’s letter concludes by stating “[i]t is very conceivable that this could have
had its origin with that initial injury, particularly since the pain started immediately thereafter.”
(Emphasis added.) As a matter of law, terms such as “could,” “may,” or “might be” indicate that
the report is equivocal, speculative or conjectural and is of limited probative value.8
Furthermore, Dr. Bieber’s report provides no objective findings or medical explanation in
support of his opinion that this single isolated event of April 12, 2007 caused the various
diagnosed right shoulder conditions. A medical explanation of the physiological process by
which the accepted event caused the various diagnosed conditions is especially important in this
case as appellant did not seek medical treatment or diagnosis until two months after the alleged
injury, for potentially chronic shoulder conditions.
Accordingly, the Board finds that appellant has not met her burden of proof in
establishing that she sustained a traumatic injury in the performance of duty on April 12, 2007.
CONCLUSION
The Board finds appellant has not met her burden of proof to establish that she sustained
right shoulder conditions as a result of her April 12, 2007 injury.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).

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ORDER
IT IS HEREBY ORDERED THAT the February 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clarksville, AR, Employer
__________________________________________

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

Docket No. 16-0245
Issued: April 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 24, 2015 appellant, through counsel, filed a timely appeal of a June 4,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed between August 7, 2013, the date of OWCP’s most recent merit
decision, and 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
appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
On appeal counsel asserts that the June 4, 2015 decision was contrary to law and fact.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a March 25, 2014 decision, the Board
found that appellant did not establish that the conditions of disc protrusion at L5-S1 and a
bulging disc at L4-5 were caused or aggravated by his January 4, 2012 employment injury. The
Board affirmed an August 7, 2013 OWCP decision.2 The findings of facts and conclusions of
the previous Board decision are incorporated herein by reference.
On March 6, 2015 appellant, through counsel, requested reconsideration. In a January 7,
2015 report, Dr. Kevin J. Collins, a Board-certified physiatrist, noted a history that appellant
injured his back while lifting parcels at work, that magnetic resonance imaging (MRI) scans
demonstrated disc bulges and protrusions, and that appellant had lumbar spine surgery. He
reported that a recent MRI scan demonstrated enhancing scar tissue and a new herniation above
the level of the previous surgery. Dr. Collins described appellant’s complaint of constant, severe
radiating low back pain, and indicated that appellant had not worked since January 2012. He
described physical examination findings and diagnosed failed low back syndrome with ongoing
pain. Dr. Collins advised that appellant could not work due to a combination of chronic pain and
large doses of pain medication.
By decision dated June 4, 2015, OWCP denied appellant’s reconsideration request. It
found that the evidence submitted was cumulative and similar to evidence previously of record
and was, therefore, insufficient to warrant merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.3 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meets at least one of the standards enumerated in section
10.606(b)(3).4 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
2

Docket No. 14-48 (issued March 25, 2014). On January 9, 2012 appellant, then a 33-year-old city carrier
(transitional employee) filed a traumatic injury claim (Form CA-1) alleging that on January 4, 2012 he injured his
low back when he tripped while ascending stairs when delivering mail. He stopped work that day. Following an
initial May 24, 2012 denial, on December 14, 2012 an OWCP hearing representative accepted a lumbosacral strain.
The hearing representative further found however that appellant did not establish any further lumbar conditions,
including disc bulge and protrusion at the L4-5 and L5-S1 levels for which he had undergone surgery on
July 25, 2012. On July 2, 2013 appellant, through counsel, requested reconsideration. In a merit decision dated
August 7, 2013, OWCP denied modification of the prior decision, finding that the medical evidence submitted was
insufficient to establish that disc bulges and protrusions at L4-5 and L5-S1 were causally related to the January 4,
2012 employment injury.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.608(a).

2

evidence not previously considered by OWCP.5 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.6
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated June 4, 2015 which denied appellant’s application for review. The merit issue in this case
was whether appellant established that herniated lumbar discs at L4-5 and L5-S1 were causally
related to a January 4, 2012 employment injury.
The Board finds that, as appellant did not assert that OWCP erroneously applied or
interpreted the law or advance a relevant legal argument not previously considered by OWCP, he
was not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).7
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted a January 7, 2015 report from Dr. Collins, described above. Dr. Collins noted the
history of injury and that appellant had not worked since January 2012. He described a new
physical examination and recent MRI scan findings and diagnosed failed back syndrome with
ongoing pain. Dr. Collins concluded that appellant could not work due to a combination of
chronic pain and large doses of pain medication.
The Board finds that Dr. Collins’ report, which had not previously been reviewed by
OWCP, constitutes new, relevant, and pertinent evidence in regard to the matter of whether
appellant established that herniated lumbar discs at L4-5 and L5-S1 were causally related to a
January 4, 2012 employment injury. It is not necessary that the evidence be sufficient to
establish the claim, only that it is new, relevant, and pertinent to the issue presented.8
As appellant submitted pertinent evidence on reconsideration that was not previously
considered by OWCP, he is entitled to a review of the merits of his claim under section
10.606(b)(3) of OWCP’s regulations.9 The case shall therefore be remanded to OWCP to
consider whether Dr. Collins’ January 7, 2015 report, submitted by appellant on reconsideration,
is sufficient to require further development. The Board will, therefore, set aside OWCP’s June 4,
2015 decision. After this and such further development deemed necessary, OWCP shall issue an
appropriate merit decision.

5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(b).

7

Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

8

C.L., Docket No. 14-1904 (issued May 18, 2015).

9

Supra note 7.

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CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration
pursuant to section 8128(a) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2015 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: April 8, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 16-0634
Issued: June 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 5, 2016 appellant filed a timely appeal from a September 2, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability beginning May 21, 2015 causally related to his December 27, 2013 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the September 2, 2015 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
On January 3, 2014 appellant, then a 33-year-old instrument mechanic leader, filed a
traumatic injury claim (Form CA-1) alleging that on December 27, 2013, while working light
duty, he bent down to move a box and experienced sharp pain in his low back, groin, and knee
when he stood up. He noted that he had a preexisting left knee condition and had undergone
multiple knee surgeries. OWCP accepted appellant’s claim for left knee sprain and left knee
anterior cruciate ligament (ACL) tear. Appellant received wage-loss compensation on the
supplemental rolls for disability.
Appellant continued to receive medical treatment. On August 25, 2014 he underwent
authorized left knee arthroscopic ACL reconstruction. Appellant stopped work and received
compensation on the supplemental rolls from August 25 to October 5, 2014. On October 6, 2014
he returned to full-time modified duty as an instrument mechanic leader.
Appellant continued to seek medical treatment. In a May 19, 2015 report, Dr. Ronald G.
Hayter, a Board-certified orthopedic surgeon, related appellant’s complaints of worsening left
knee and low back pain, which limited his ability to work. On examination of appellant’s left
knee, he observed trace effusion with a ballotable patella. Ligament examination revealed
negative subluxation and negative Lachman’s, drawer, and pivot shift tests. Dr. Hayter reported
pain with varus stress and lateral joint line tenderness. Examination of appellant’s back revealed
a postural abnormality, a small degree of posterior paraspinal muscle spasm that was palpable in
the lumbar paraspinal musculature with associated tenderness, and decreased flexion of the hip
on the affected side. Dr. Hayter also observed tenderness to palpation along the course of the
sciatic notch. He related that an x-ray of the left knee revealed minimal degenerative joint
disease (DJD) and an x-ray of the lumbar spine demonstrated degenerative joint and disc disease
and significant narrowing of neural foramina at L4-L5 and L5-S1 due to facet arthritis.
Dr. Hayter diagnosed status post lateral meniscus allograft, status post ACL, and lumbar DJD.
He opined that, based on appellant’s history, physical examination, and appropriate tests, left
knee arthroscopy would aid in both diagnosis and treatment. Dr. Hayter submitted a worksheet
which indicated diagnoses of lateral tear of appellant’s meniscus, degenerative disc disease of the
lumbar spine with sciatica, and ACL. He noted that appellant should not work.
In a handwritten May 19, 2015 prescription note, Dr. Hayter indicated that appellant was
“off work due to left knee scheduled for knee surgery.”
Appellant stopped work and submitted a request for leave without pay dated
May 21, 2015.3
On May 27, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period May 21 to 31, 2015. He indicated that he was out of work waiting for authorization
for surgery. Appellant submitted additional wage-loss compensation claims for continuing
disability.
3

In a May 21, 2015 memorandum, Victor M. Alas, a compensation specialist, noted that appellant had been
placed on compensation effective 7:00 p.m. on May 22, 2015 and continuing. The record does not reflect that
appellant received FECA wage-loss compensation as of May 22, 2015.

2

By letter dated June 11, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish his recurrence of disability claim. It requested that he respond to the
attached questionnaire and provide a narrative medical report with a physician’s opinion
supported by medical rationale explaining why he was unable to work modified duty due to his
original employment injury. Appellant was afforded 30 days to submit this additional evidence.
On June 29, 2015 OWCP received appellant’s completed questionnaire. Appellant
indicated that there was no specific injury that caused his recurrence of injury, but his knee just
started hurting more. He described his work activities as walking, getting in and out of carts to
service equipment, and repairing equipment. Appellant related his belief that his knee never
completely healed and was still causing pain and inflammation.
In a July 1, 2015 report, Dr. Hayter related appellant’s complaints of pain in his left knee
and low back and reviewed appellant’s previous left knee surgeries, which included a lateral
meniscus allograft in November 2013 and ACL reconstruction in August 2014. Upon
examination, he observed effusion in the knee, pulled ligaments, and good range of motion.
Dr. Hayter reported that lateral symptoms were suggestive of possible lateral meniscal tear or
disruption of his allograft. He administered an injection to appellant’s left knee and
recommended arthroscopy of the left knee.
On July 21, 2015 appellant requested authorization for left knee arthroscopic surgery.
In a July 23, 2015 form, appellant indicated that on December 27, 2013 he tore his left
knee ACL at work and had surgery to repair it on August 25, 2014. He related that on
approximately March 12, 2015 his knee started hurting when he tried to bend it. Appellant went
to his doctor who recommended that he return to the surgeon who performed his left knee
surgery because there was a screw that needed to be removed. He reported that the surgeon
confirmed that he had excessive scar tissue from the ACL surgery and needed the screw
removed. Appellant noted that the surgeon took him off work and advised him that he could not
return to work until after the surgery.
In a handwritten July 23, 2015 prescription note, Dr. Hayter indicated that appellant was
“unable to work due to mechanical instability in left knee due to torn cartilage.”
In a decision dated July 27, 2015, OWCP denied appellant’s recurrence of disability
claim. It found that the evidence submitted was insufficient to establish that his accepted left
knee injury had worsened to the extent that he was unable to continue to work his modified
position. OWCP also denied appellant’s request for authorization for arthroscopic surgery on his
left knee because the medical evidence failed to establish that the surgery was medically
necessary to treat his December 27, 2013 work injury.
On August 24, 2015 OWCP received appellant’s reconsideration request.
In an August 19, 2015 letter, Dr. Hayter reviewed appellant’s medical history regarding
his left knee condition, including the various surgeries he had undergone. He reported that
during a May 19, 2015 examination appellant described difficulty standing and walking because
of pain in his knee and leg. Dr. Hayter observed limited range of motion, secondary to pain,
lateral joint line tenderness, and positive McMurray’s test findings in the lateral compartment of
3

the knee. He reported that at the time of the examination he believed that appellant either had
worsening of his arthritis in the knee or some type of disruption or failure of his meniscal
allograft. Dr. Hayter recommended that appellant not return to work in an effort to control his
symptoms and limit further damage to his knee and arthroscopy of his left knee. He opined that
appellant did not sustain a new injury, but that the most likely explanation for his symptoms was
either progression of degenerative arthritis in his left knee, which was related to his original
injury causing a lateral meniscal tear and cruciate ligament tear, or possible failure of the
meniscal allograft. Dr. Hayter explained that appellant needed diagnostic arthroscopy to identify
the source of his symptoms.
Appellant also resubmitted Dr. Hayter’s July 21, 2013 medical report.
By decision dated September 2, 2015, OWCP denied modification of the July 27, 2015
decision. It found that the evidence was insufficient to establish that appellant was unable to
work modified duty as a result of his December 27, 2013 employment injury.4
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he cannot perform the limited-duty position. As part of this
burden, the employee must show either a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty requirements.6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that the disabling condition is
causally related to employment factors and supports that conclusion with sound medical
reasoning.7

4

OWCP did not reconsider the issue of authorization for arthroscopic surgery. Thus, it is not before the Board on
this appeal. See 20 C.F.R. § 501.2(c).
5

20 C.F.R. § 10.5(x).

6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
7

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138 (1982). Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

4

ANALYSIS
OWCP found that on December 27, 2013 appellant sustained a work-related left knee
sprain and left knee ACL tear. On August 25, 2014 appellant underwent authorized left knee
surgery and stopped work. He returned to modified duty on October 6, 2014. On May 21, 2015
appellant stopped work again and filed claims for wage-loss compensation. In decisions dated
July 27 and September 2, 2015, OWCP denied his claim for recurrence of disability. The Board
finds that appellant has failed to establish a recurrence of disability beginning May 21, 2015
causally related to his December 27, 2013 employment injury.
Appellant alleged that his physician took him off work due to his original injury.
Accordingly, he must submit evidence sufficient to demonstrate a change in the nature and
extent of his accepted condition such that he could no longer perform the light-duty assignment.8
Appellant submitted various reports dated May 19 to August 19, 2015 from Dr. Hayter. In a
July 23, 2015 prescription note, Dr. Hayter opined that appellant was unable to work “due to
mechanical instability in left knee due to torn cartilage.” He further explained in an August 19,
2015 letter that the most likely explanation for appellant’s symptoms was either progression of
degenerative arthritis in his left knee, which was related to his original injury, or possible failure
of the meniscal allograft surgery.
Although Dr. Hayter provided an opinion regarding appellant’s ability to work, the Board
finds that he did not sufficiently explain, with sound medical reasoning, how the December 27,
2013 work injury disabled appellant for work on and after May 21, 2015. Dr. Hayter reported
that appellant could not work due to scheduled left knee surgery and mechanical instability due
to a torn cartilage. He failed to provide an explanation, based on objective evidence, as to how
appellant’s left knee condition had worsened in less than a year to the extent that he could no
longer perform his modified-duty job assignment.9 Furthermore, the Board notes that Dr. Hayter
attributed appellant’s current symptoms to either a progression of his degenerative arthritis,
which is not an accepted condition, or possible failure of his left knee surgery. Dr. Hayter did
not provide a definitive opinion on the cause of appellant’s current condition nor a fullyrationalized explanation as to why appellant was disabled beginning May 21, 2015 as a result of
his accepted left knee injury.10
In his August 19, 2015 report, Dr. Hayter explained that he recommended appellant not
return to work to control his symptoms and limit further damage to his left knee. It is well
established that the possibility of future injury or disability is not a basis for payment of
compensation.11

8

Supra note 4.

9

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

The Board has found that medical opinions that are speculative or equivocal in nature are of diminished
probative value. See D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).
11

L.J., Docket No. 15-0188 (issued March 25, 2016).

5

The Board finds, therefore, that appellant failed to submit rationalized medical evidence
establishing that his disability on May 21, 2015 was causally related to his December 27, 2013
employment injury.
On appeal appellant explains that after he went back to work following the surgery he
continued to experience left knee pain and decreased range of motion. He asserts that these
symptoms were evidence of a worsening of his condition. The issue of whether a claimant’s
inability to work is related to an accepted condition, however, is a medical question that must be
established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that
conclusion with sound medical reasoning.12 As noted above, appellant did not submit
sufficiently rationalized medical evidence to establish that he sustained a recurrence of disability
beginning May 21, 2015 causally related to his accepted December 27, 2013 employment injury.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a recurrence of
disability beginning May 21, 2015 causally related to the December 27, 2013 employment
injury.

12

Sandra D. Pruitt, 57 ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the September 2, 2015 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: June 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearny, NJ, Employer
_________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 22-0178
Issued: November 29, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On November 8, 2021 appellant, through counsel, filed an appeal from a purported
August 18, 2021 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards assigned Docket No. 22-0178.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
The case record as transmitted to the Board does not contain a final adverse decision of OWCP
issued within 180 days from the date of docketing of the current appeal. 3 The most recent decision
1

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

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

20 C.F.R. § 50l.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date
of issuance of a decision of the OWCP.”
3

of record is an acceptance decision dated January 12, 2012. While the case record contains
correspondence dated August 18, 2021, that letter is purely informational in nature and does not
constitute a final adverse decision of OWCP from which appellant may properly appeal.4 As there
is no final adverse decision over which the Board may properly exercise jurisdiction, the Board
concludes that the appeal docketed as No. 22-0178 must be dismissed.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”5
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0178 is dismissed.
Issued: November 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020).
5

Supra note 3 at § 501.6(d).

2