United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North East, PA, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1633
Issued: January 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 19, 2008 appellant filed a timely appeal of the September 11, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for
recurrence of disability and a February 21, 2008 decision denying reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of appellant’s
claim.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability on March 20,
2007, causally related to his January 20, 2007 employment injury; and (2) whether the Office
properly denied his November 24, 2007 request for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a 37-year-old letter carrier, slipped and fell down some steps in the
performance of duty on January 20, 2007. That day he received treatment in the Hamot Medical
Center emergency department for a left elbow contusion and a shoulder strain. Appellant was

advised that he could perform limited-duty work, which the employing establishment provided
beginning January 23, 2007.1 Within a few days of his injury, he complained of mid-low back
pain. On January 30, 2007 Dr. Allan C. Johnson, an osteopath, diagnosed thoracolumbar sprain.
Appellant had a prior history of cervical and lumbar disc disease. Approximately seven
months before his January 2007 employment injury, he received chiropractic treatment for
herniated discs of the cervical and lumbar spine. A February 13, 2007 magnetic resonance
imaging (MRI) scan showed a disc protrusion at L3-4 and a disc bulge and annular tear at L4-5.2
Because of his mid-low back complaints, appellant attended physical therapy for
approximately six weeks.3 On February 22, 2007 Dr. Johnson reported that appellant’s left
shoulder strain and left elbow contusion had completely resolved. Appellant’s low back pain
continued to improve through February and March 2007 and Dr. Johnson gradually relaxed his
work restrictions to permit more lifting. On March 29, 2007 Dr. Johnson released appellant to
resume his regular, full-time duties without restriction. At that time, however, appellant was not
working due to a recurrence of bronchitis.4
Julie McCurdy, a physician’s assistant, excused appellant from work on April 2, 2007
because of dizziness and nausea.5 Appellant’s absence from work was to continue until he
received an MRI scan on April 9, 2007.
Appellant returned to Dr. Johnson on April 11, 2007. Dr. Johnson noted that appellant
was still off work due to ongoing problems with nausea and dizziness, which were being
addressed by his primary physician. He advised that appellant’s nausea was not work related.
As to appellant’s back condition, Dr. Johnson indicated “minimal back complaints.” Appellant’s
back condition had returned to its preinjury baseline with his pain “usually” at one on a scale of 1
to 10. Dr. Johnson stated that appellant’s lumbosacral sprain had improved and reiterated that
appellant was able to resume his regular, full-time duties.
An April 12, 2007 cervical MRI scan showed dessication with diffuse bulging at C5-6
and a posterolateral extradural defect at C6-7.

1

Appellant’s initial restrictions included no lifting, pushing or pulling over five pounds with his left arm. He was
also restricted in reaching above shoulder level.
2

The radiology report noted an improvement of the lumbar discs when compared to a prior study dated
May 2, 2005. According to Dr. Johnson, the latest MRI scan revealed no “evidence of any exacerbation of injury by
the current events.”
3

Appellant attended physical therapy three days a week from February 6 to March 16, 2007.

4

In his March 13, 2007 treatment notes, Dr. Johnson reported that appellant was battling bronchitis and had
decided to discontinue his back medication while taking cold medication.
5

Ms. McCurdy is associated with appellant’s primary care physician, Dr. Margaret H. Shanley, a Board-certified
family practitioner.

2

On May 9 and June 12, 2007 Ms. McCurdy advised that appellant was to remain off work
due to a cervical disc herniation at C6-7. She noted that appellant was scheduled for surgery on
August 1, 2007.
A June 15, 2007 duty status report (Form CA-17) from Dr. Steven A. Gilman, a Boardcertified neurosurgeon, advised that appellant was to remain off work until he recovered from
surgery scheduled for August 1, 2007. Dr. Gilman diagnosed cervical disc displacement, with
findings of disc herniation at C6-7 and mild desiccation of the C5-6 disc. The diagnosis was
attributed to appellant having fallen down porch steps.
On June 16, 2007 appellant filed a recurrence of disability claim. He alleged that his
cervical condition was associated with his January 20, 2007 employment-related fall. Appellant
claimed that his disability began on March 20, 2007.
In a July 10, 2007 letter to the Office, the employing establishment controverted the
alleged relationship between appellant’s cervical condition and his January 20, 2007 fall at work.
It reported that appellant had been on limited duty following his January 20, 2007 injury and
stopped work on March 20, 2007 because of a reported cough. The employing establishment
further noted that appellant had not returned to work, but had submitted evidence regarding a
cervical condition and upcoming surgery.
On July 24, 2007 the Office advised appellant that his claim was accepted for contusion
of the left forearm, left shoulder sprain and lumbar spine sprain. It noted that he had worked
limited duty following his injury and was released to resume his regular duties as of
March 29, 2007. With respect to his claimed recurrence of disability, the Office referred him to
a separate recurrence development letter also dated July 24, 2007.
The Office subsequently received a June 7, 2007 initial consultation report from
Dr. Gilman, who diagnosed a cervical disc and reported that appellant had been experiencing
neck and right arm pain for the prior three months. The noted history of injury was that
appellant was delivering mail in January when he slipped, fell and “twisted his back.”
Dr. Gilman further noted that appellant had lower back discomfort and was attending physical
therapy. Within a few weeks of starting physical therapy, appellant’s neck started to bother him.
Dr. Gilman indicated that appellant’s neck pain was progressive and had not improved. He
performed a physical examination and reviewed a recent cervical MRI scan, which showed mild
disc dessication at C5-6 and posterolateral disc herniation on the right at C6-7. Dr. Gilman
recommended a cervical discectomy and fusion at C6-7.
Appellant’s primary care physician, Dr. Shanley, provided a July 13, 2007 report which
attributed appellant’s C6-7 disc herniation to his January 20, 2007 fall at work. She had been
following him since February 3, 2007 for multiple symptoms of body aching, nausea, dizziness,
fatigue, and neck pain that was intermittent. Dr. Shanley noted that on January 20, 2007
appellant was carrying an armful of mail in his left upper extremity when he slipped and fell
down stairs. Appellant was evaluated in the emergency room for left elbow pain, forearm pain
and shoulder pain. Dr. Shanley indicated that appellant did have lower back and neck pain, but it
seemed the left elbow, forearm and shoulder were the distracting injuries. She saw him again on
April 2, 2007 and a subsequent cervical MRI scan showed an extradural defect at C6-7 and

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surgery was scheduled for August 2007. Dr. Shanley noted that appellant had been off work
since March 20, 2007, which she attributed to his initial injury of January 20, 2007. She stated
that the cervical disc herniation at C6-7 was related to his fall on January 20, 2007.
On August 15, 2007 Dr. Gilman performed a C6-7 anterior cervical discectomy with
decompression and fusion. His postoperative diagnosis was herniated cervical disc, cervical
spondylosis and cervical joint instability. The Office denied authorization for this surgical
procedure as related to his accepted claim.
By decision dated September 11, 2007, the Office denied appellant’s claim for recurrence
of disability. It found that the claimed recurrence was not causally related to the January 20,
2007 employment injury. Appellant’s cervical condition was not accepted as employment
related and the Office noted that there were no complaints of cervical spine discomfort or injury
prior to April 2007.
On November 24, 2007 appellant requested reconsideration.
He submitted a
September 14, 2007 attending physician’s report (Form CA-20) from Dr. Gilman. The report
identified the date of injury as January 20, 2007, as Dr. Gilman previously reported on
June 7, 2007. Dr. Gilman diagnosed cervical disc, cervical spondylosis and joint instability. He
attributed the diagnoses to appellant’s January 20, 2007 employment injury. Dr. Gilman further
noted that appellant had been disabled since March 21, 2007 and would likely remain disabled
for three to six months following the August 15, 2007 surgery. Appellant also submitted a copy
of Dr. Shanley’s July 13, 2007 report together with correspondence with his senator and local
postmaster.
In a decision dated February 21, 2008, the Office denied appellant’s November 24, 2007
request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his work-related
injury or illness is withdrawn -- except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force -- or when the physical requirements of
such an assignment are altered so that they exceed the employee’s established physical
limitations.7 Moreover, when the claimed recurrence of disability follows a return to light-duty
work, the employee may satisfy his burden of proof by showing a change in the nature and extent

6

20 C.F.R. § 10.5(x) (2008).

7

Id.

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of the injury-related condition such that he was no longer able to perform the light-duty
assignment.8
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.9 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 condition is causally related to the employment injury.10 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.11
ANALYSIS -- ISSUE 1
Appellant sustained injury on January 20, 2007, accepted by the Office for left forearm
and shoulder sprains and a lumbosacral sprain. He was released to resume his regular
employment as of March 29, 2007. Appellant’s counsel argued that technically there was no
recurrence of disability as the January 20, 2007 fall at work had aggravated a preexisting cervical
condition. Counsel also asserted that appellant’s treatment records from January 30, February 22
and April 11, 2007 noted his complaints of cervical spine discomfort.
As to the accepted conditions of left forearm contusion, left shoulder sprain and lumbar
spine sprain, there is no evidence that these conditions either caused or contributed to appellant’s
March 20, 2007 work stoppage. Appellant reportedly stopped work that day due to a cough,
which is consistent with the history of bronchitis reported by Dr. Johnson. His left shoulder
strain and left elbow contusion were found by Dr. Johnson to have completely resolved by
February 22, 2007. A week prior to appellant’s March 20, 2007 work stoppage, Dr. Johnson had
relaxed appellant’s back-related lifting restrictions. By March 29, 2007, appellant’s low back
condition had improved such that he was released to return to his regular employment duties. In
an April 11, 2007 report, Dr. Johnson reported minimal back complaints and noted that
appellant’s back had returned to its preinjury baseline. He again stated that appellant was able to
resume his regular work.
Appellant has not alleged and there is no medical evidence to establish that his claimed
disability on or after March 20, 2007 was due to the accepted conditions of left forearm
contusion, left shoulder sprain and lumbar spine sprain. However, counsel contends that the
January 20, 2007 employment-related fall aggravated a preexisting cervical condition. Where a
claimant contends that a condition not accepted or approved by the Office was due to his

8

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

9

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
10

See Helen K. Holt, supra note 9.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

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employment injury, he bears the burden of proof to establish that the condition is causally related
to the employment injury.12
Both Dr. Gilman and Dr. Shanley attributed appellant’s cervical condition to his
January 20, 2007 employment injury. However, neither physician adequately explained the basis
for their respective opinions on causal relationship. Furthermore, both physicians relied on
incorrect histories. On July 13, 2007 Dr. Shanley indicated that when appellant was seen in the
emergency room on January 20, 2007 he did have lower back and neck pain, but that the left
elbow, forearm and shoulder were distracting injuries. The emergency room treatment records
do not support Dr. Shanley’s assertion that appellant had lower back and neck pain when initially
seen on January 20, 2007. Appellant’s mid-low back pain was first documented a few days after
the January 20, 2007 injury. Dr. Shanley appears to have been the first physician to document
appellant’s complaint of neck pain beginning in April 2007 when he was referred for a cervical
MRI scan. She did not adequately explain the nature of appellant’s prior cervical condition or
treatment in addressing causal relation or contrast the April 12, 2007 cervical MRI scan with any
prior diagnostic testing.
Dr. Gilman provided a different account of the onset of appellant’s neck pain. He
reported that, within a few weeks of starting physical therapy for his lumbar condition,
appellant’s neck started to bother him. However, appellant’s physical therapy records from
February 6 to March 16, 2007 do not support this characterization of events.13 While appellant
underwent physical therapy there were no reported incidents of cervical pain by either the
therapist or Dr. Johnson. In fact, when Dr. Johnson saw appellant on February 22, 2007, he
noted that the cervical spine was nontender with good active range of motion without pain.14
Dr. Gilman’s opinion on causal relationship is deficient as he did not include a full medical
history of appellant’s cervical condition or explain how the C6-7 disc was caused or contributed
to by the accepted injury.
The medical evidence of record does not establish that appellant’s January 20, 2007
employment-related fall caused or contributed to his diagnosed cervical condition. Accordingly,
12

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
13

The March 16, 2007 physical therapy treatment notes indicated “[patient] reports still feeling sick, cold.”
Appellant continued with her exercises despite feeling sick to his stomach. He had similar complaints of “cough”
and “fighting a cold” on March 15, 2007. There were no reported complaints specific to appellant’s cervical spine.
14

This is the same February 22, 2007 report that counsel purportedly cites to discredit the Office’s assertion that
appellant had not complained of his cervical condition prior to April 2007. Counsel also referenced Dr. Johnson’s
January 30, 2007 treatment notes, which similarly do not support his argument. At that time, appellant complained
of “pain in the lower thoracic and lumbar region.” However, there was no report of cervical pain or discomfort on
or about January 30, 2007. Dr. Johnson’s April 11, 2007 report also fails to support counsel’s argument. He did not
report any cervical complaints. Dr. Johnson did, however, note ongoing problems with dizziness and nausea, the
latter of which he indicated was a “nonwork-related problem.”

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the Office properly denied appellant’s claim for recurrence of disability beginning
March 20, 2007.
LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.15 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.16
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.17
ANALYSIS -- ISSUE 2
Appellant’s November 24, 2007 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Therefore, appellant is 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)(2).18 He also failed to satisfy
the third requirement under section 10.606(b)(2). Appellant did not submit any relevant and
pertinent new evidence with his November 24, 2007 request for reconsideration. His
correspondence with his senator and his local postmaster is not relevant to the issue on
reconsideration. Additionally, Dr. Shanley’s July 13, 2007 report was of record and had been
considered by the Office. The only new evidence submitted was Dr. Gilman’s September 14,
2007 report, which reiterated his June 7, 2007 findings and offered no new opinion regarding
causal relationship. Submitting additional evidence that repeats or duplicates information
already in the record does not constitute a basis for reopening a claim.19 Consequently, appellant
is not entitled to a review of the merits of his claim based on the third requirement under section
10.606(b)(2).20

15

5 U.S.C. § 8128(a) (2000).

16

20 C.F.R. § 10.606(b)(2).

17

Id. at § 10.608(b).

18

Id. at § 10.606(b)(2)(i) and (ii).

19

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

20

20 C.F.R. § 10.606(b)(2)(iii).

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CONCLUSION
The Board finds that appellant’s claimed recurrence of disability beginning March 20,
2007 is not causally related to his January 20, 2007 employment injury. The Board further finds
that the Office properly denied appellant’s November 24, 2007 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2008 and September 11, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 7, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ossining, NY, Employer
__________________________________________

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

Docket No. 11-2101
Issued: May 9, 2012

Case Submitted on the Record

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

JURISDICTION
On September 21, 2011 appellant filed a timely appeal from an August 24, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on July 6, 2011.
FACTUAL HISTORY
On July 8, 2011 appellant, then a 36-year-old letter carrier, filed a traumatic injury claim
alleging that her postal truck was rear ended by another vehicle in a parking lot on July 6, 2011.

1

5 U.S.C. § 8101 et seq.

She thereafter sustained neck and back pain. Appellant stopped work on that day and did not
return.
In a July 7, 2011 report, Dr. Pablo A. Joo, Jr., a Board-certified family practitioner, stated
that he treated appellant following a workplace injury and advised her to refrain from working
until July 14, 2011. A July 11, 2011 note from Dr. Vanessa N. Dinnall, a Board-certified
obstetrician and gynecologist, pointed out that appellant was 24 weeks pregnant when she was
involved in a motor vehicle accident.
OWCP informed appellant in a July 18, 2011 letter that additional evidence was needed
to establish her claim. It gave her 30 days to submit a report from a qualified physician
explaining how the July 6, 2011 employment incident led to a neck and back condition.2
Appellant submitted new evidence. In a July 9, 2011 report, Dr. Sam J. Yee, a Boardcertified physiatrist, related that she was sitting in her postal truck on July 6, 2011 when it was
struck from behind by another vehicle. On physical examination, he observed diminished range
of motion of the neck, upper extremities and hips, right paracervical and sternocleidomastoid
muscle spasms and stiffness, bilateral shoulder tenderness and positive Spurling’s, flexionabduction-external rotation, flexion-adduction-internal rotation and straight leg raise tests.
Dr. Yee diagnosed cervicalgia and lower back pain secondary to the July 6, 2011 accident and
recommended physical therapy for 12 weeks.3 In July 23 and August 13, 2011 follow-up
reports, he opined, “I feel with a reasonable degree of medical certainty that the events as related
to me on July [6], 2011 are a major contributing factor to the patient’s condition.”4
In a July 23, 2011 duty status report, Dr. Yee diagnosed neck and lower back pain. He
placed appellant on disability for the period July 23 to August 13, 2011. In an August 13, 2011
duty status report, Dr. Yee diagnosed lower back pain and released her to modified duty effective
August 13, 2011.5
By decision dated August 24, 2011, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted July 6, 2011 employment incident caused
or contributed to a diagnosed condition.

2

In a July 19, 2011 letter, OWCP informed appellant that the circumstances of her case indicated that her injury
may have been caused by a responsible third party and that she may be subject to FECA’s subrogation provisions.
See 5 U.S.C. §§ 8131-8132; 20 C.F.R. §§ 10.705-10.719. The case record confirms that appellant submitted an
August 9, 2011 notice of potential third-party claim to the employing establishment.
3

Appellant provided a physical therapist’s report dated July 11, 2011.

4

This paragraph, as found in both reports, originally identified July 26, 2011 as the date of injury. This was
likely a typographical error. Otherwise, the July 23 and August 13, 2011 reports essentially repeated the same
health history, objective findings and diagnoses found in Dr. Yee’s prior July 9, 2011 report.
5

Dr. Yee’s duty status reports reiterated appellant’s account of the July 6, 2011 work event.

2

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,6
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.7 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.9
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
While the case record supports that appellant’s postal truck was hit by a third-party
vehicle in a parking lot on July 6, 2011, the Board finds that she did not establish her traumatic
injury claim because the medical evidence did not sufficiently demonstrate that this accepted
employment incident was causally related to a neck and back condition.
Dr. Yee remarked in a July 9, 2011 report that appellant was sitting in her postal truck on
July 6, 2011 when it was rear ended by another vehicle. Following a physical examination, he
diagnosed cervicalgia and lower back pain and attributed these injuries to the July 6, 2011
incident. Various medical records from Dr. Yee dated July 23 and August 13, 2011 related
consistent health histories, objective findings and diagnoses and concluded “with a reasonable
degree of medical certainty” that the July 6, 2011 incident was a major contributing factor to
6

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

7

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

8

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

9

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

10

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

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appellant’s condition. Nevertheless, he did not provide medical rationale explaining how the
incident pathophysiologically caused or contributed to the injury.11 Medical reports consisting
solely of conclusory statements without supporting rationale are of little probative value.12
In a July 7, 2011 report, Dr. Joo stated that he treated appellant following a workplace
injury. Additionally, Dr. Dinnall specified in a July 11, 2011 note that she was involved in a
motor vehicle accident. Both physicians, however, failed to offer fortifying medical rationale13
or discuss whether the July 6, 2011 motor vehicle accident as described by appellant caused or
contributed to a diagnosed medical condition.14 Finally, because a physical therapist is not a
“physician” as defined under FECA, the physical therapist’s July 11, 2011 report cannot
constitute competent medical evidence.15 In the absence of rationalized medical opinion
evidence, appellant failed to meet her burden.
Appellant contends on appeal that the medical evidence satisfied her burden of proof. As
noted, the medical evidence did not sufficiently establish that her diagnosed cervicalgia and
lower back pain resulted from the July 6, 2011 employment incident.
The Board notes that appellant submitted new evidence after the issuance of the
August 24, 2011 decision. The Board lacks jurisdiction to review evidence for the first time on
appeal.16 However, appellant may submit new evidence or argument as part of a formal written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on July 6, 2011.

11

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

12

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

13

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

14

John W. Montoya, 54 ECAB 306, 309 (2003). See also M.W., 57 ECAB 710 (2006); James A. Wyrick, 31
ECAB 1805 (1980) (medical opinions based on an incomplete or inaccurate history are of diminished probative
value).
15

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996). See also Charley V.B. Harley, 2 ECAB 208, 211
(1949) (medical opinion, in general, can only be given by a qualified physician).
16

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the August 24, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 14-1748
Issued: December 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant filed a timely appeal from the February 21, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established increased permanent impairment due to his
accepted right arm condition.
FACTUAL HISTORY
On July 7, 2001 appellant, a 46-year-old area port director, sustained a traumatic injury in
the performance of duty when he stepped down to a ship’s ladder. His left ankle twisted and his
1

5 U.S.C. § 8101 et seq.

right knee buckled and he heard a pop. OWCP accepted appellant’s claim for left ankle
sprain/strain and aggravated dislocation of the right knee. Appellant received a schedule award
for a 26 percent permanent impairment of his right lower extremity due to a two-millimeter
cartilage interval combined with a total lateral meniscectomy.2
On June 23, 2005 appellant, now a 50-year-old supervisory officer, sustained a traumatic
injury in the performance of duty when he caught his right leg on a carpet and he felt his right
knee twist and pop.3 OWCP accepted his claim for a right lateral collateral ligament
sprain/strain, a torn right lateral meniscus and localized primary osteoarthritis of the right lower
extremity. X-rays revealed no joint space remaining in the knee, a condition described as “bone
on bone.” Appellant received a schedule award for a 25 percent permanent impairment of his
right lower extremity due to residual degenerative joint disease of the knee with complete loss of
joint space, a rating that was stated to take into account mild lateral ligament laxity and a tear of
the lateral meniscus. An OWCP medical adviser explained that the 25 percent rating was the
sole impairment of the right lower extremity resulting from the accepted work injury of
June 23, 2005.
In a January 10, 2012 decision, OWCP found that appellant was overpaid $78,124.61, the
amount of his second schedule award, because his impairment had actually decreased, and he
was therefore not entitled to the second schedule award.
In September 2010 appellant underwent a total knee arthroplasty on the right. He filed a
claim for an additional schedule award.
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and OWCP second opinion
physician, evaluated appellant’s impairment in 2011. He found that appellant had received a
good result from his total knee arthroplasty. The position of the prosthetic was good, and the
knee was both stable and functional. Under Table 16-3, page 511 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), Dr. Swartz noted
a default lower extremity impairment value of 25 percent. He adjusted the default value to 21
percent for a normal functional history and mild findings on physical examination.
Dr. Craig M. Uejo, a district medical adviser, reviewed Dr. Swartz’ evaluation and found
a 31 percent impairment of the right lower extremity. Given objective findings of a mild motion
deficit, he determined that appellant had received only a fair result from his total knee
arthroplasty, which had a default impairment value of 37 percent under Table 16-3. Dr. Uejo
agreed with Dr. Swartz that appellant had a normal functional history and clinical studies showed
a good stable alignment, indicative of a moderate problem under Table 16-8, page 519. These
modifiers changed the impairment rating to 31 percent.
On April 4, 2012 OWCP issued a schedule award for an additional six percent
impairment of the right lower extremity. Appellant had previously received a schedule award for
25 percent, and now his impairment rating was 31 percent. OWCP notified him that it was
2

OWCP File No. xxxxxx937.

3

OWCP File No. xxxxxx064.

2

applying this additional award to the overpayment created by his second schedule award.
Appellant appealed this decision to the Board.4
On the prior appeal, the Board set aside OWCP’s overpayment decision. It was not
enough, the Board explained, to compare the final impairment ratings of appellant’s first two
schedule awards. Both were issued under the fifth edition of the A.M.A., Guides (2001).
Appellant’s first award represented a 20 percent impairment due to arthritis and a 7 percent
impairment due to a total lateral meniscectomy. His second award should have reflected a 50
percent impairment due to zero joint space in his arthritic knee5 and a 7 percent impairment due
to mild laxity of the lateral collateral ligament,6 which combined for a total impairment of 54
percent.7 As appellant’s arthritis had worsened considerably since his first schedule award, he
was entitled to an additional schedule award. The Board therefore found that OWCP had not
established fact of overpayment. As no debt was established, OWCP had no basis for recovery.
Dr. Ronald M. Lampert, a Board-certified orthopedic surgeon and OWCP second opinion
physician, evaluated appellant’s impairment in January 2013. He found a 21 percent impairment
of the right lower extremity, as Dr. Swartz had found in 2011.
Arthur S. Harris, M.D. and an orthopedic consultant, reviewed Dr. Lampert’s evaluation
and found a 34 percent impairment of the right lower extremity. As before, appellant’s mild
motion deficit indicated only a fair result from his total knee arthroplasty, the default impairment
value of which was 37 percent. There was no adjustment for functional history, as appellant was
ambulating with the use of a cane. As clinical studies showed no obvious, significant
abnormalities, indicating a mild problem, the default impairment value was adjusted to 34
percent.
In a decision dated August 5, 2013, OWCP denied an additional schedule award. It
found that appellant had already received schedule awards of 26, 25 and 6 percent, or a total of
57 percent for his right lower extremity. As his current impairment was only 34 percent, he was
not entitled to an additional award. Appellant requested a hearing.
In a decision dated February 21, 2014, an OWCP hearing representative affirmed the
August 5, 2013 decision. She found that the evidence failed to establish that appellant had more
than a 57 percent impairment of his right lower extremity, for which he had previously received
schedule awards.
On appeal, appellant argues that he should receive an additional schedule award of 3
percent, as he currently has a 34 percent impairment but was previously found to have a 31
percent impairment. He adds that OWCP erred in applying his additional award of six percent to

4

Docket No. 12-563 (issued September 10, 2012).

5

A.M.A., Guides 544, Table 17-31.

6

Id. at 546, Table 17-33.

7

Combined Values Chart, page 604.

3

the overpayment that the Board would later set aside. Appellant notes that OWCP has not
released the funds to him.
LEGAL PRECEDENT
The schedule award provision of FECA8 and the implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.10
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.11 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.12
ANALYSIS
The Board herein reviews the evaluation of appellant’s right lower extremity to determine
his current impairment rating. The Board will then compare that rating to the schedule awards
appellant has already received to determine whether he is entitled to any additional
compensation.
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment (no objective problem, mild problem, moderate problem, severe problem, very
severe problem approaching total function loss), which will provide a default impairment rating,
and finally by adjusting the default rating up or down for grade, which is calculated using grade
modifiers or nonkey factors (functional history, physical examination, clinical studies).13
Table 16-3, the Knee Regional Grid, shows the impairment values for a total knee
replacement on page 511. A good result is characterized by good position, stability, and
functionality. This is indicative of a moderate problem and has a default impairment value of 25
percent. Indeed, 25 percent is the highest rating awarded for a good result. A fair result is

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

11

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
13

A.M.A., Guides 497.

4

characterized by fair position, mild instability and/or mild motion deficit. It is indicative of a
severe problem and has a default impairment value of 37 percent.
Dr. Swartz and Dr. Lampert, the second opinion orthopedic surgeons, found that
appellant had received a good result from his total knee arthroplasty, but both found a mild
motion deficit, which is indicative of fair result and a default impairment value of 37 percent.
As the mild motion deficit was used to define appellant’s result as fair, it is not again
used to modify the default impairment value.14 The most recent OWCP medical adviser
indicated that appellant was ambulating with the use of a cane, as per Dr. Lampert, who reported:
“Examination shows that he walks without a cane and without a limp.” This reflects a normal
functional history under Table 16-6, page 516. Clinical studies reflect a moderate problem. As
both functional history and clinical studies indicate a lower class of impairment than the default
value for a total knee arthroplasty, the default value is adjusted two steps down to 31 percent.
This is the final impairment rating for appellant’s right lower extremity under the applicable
sixth edition of the A.M.A., Guides.
The history of this case shows that appellant previously received two schedule awards
under the fifth edition of the A.M.A., Guides: one for a 26 percent impairment of his right lower
extremity, and another for a 25 percent impairment. Appellant has thus received compensation
for a total impairment of 51 percent. OWCP issued a third schedule award under the sixth
edition of the A.M.A., Guides for an additional six percent impairment, but appellant did not
receive this award as it had been credited against the outstanding overpayment.
Accordingly, in order to establish that he is entitled to the additional six percent,
appellant has the burden to establish that the impairment of his right lower extremity under the
sixth edition is greater than 51 percent. The most recent examination of appellant’s right lower
extremity supports a current rating of 31 percent under the sixth edition of the A.M.A., Guides.
The Board therefore finds that appellant is not entitled to an additional schedule award. The
Board will affirm OWCP’s February 21, 2014 decision.
Appellant presently argues that he should receive an additional schedule award of three
percent. He was found to have a 31 percent impairment in 2012, and OWCP’s review of
Dr. Lampert’s 2013 evaluation showed a 34 percent impairment. Although OWCP’s review of
Dr. Lampert’s evaluation showed a 34 percent impairment, that rating was erroneously based on
appellant’s reported use of a cane. In fact, Dr. Lampert reported that appellant ambulated
without a cane and without a limp, a functional history that warranted further downward
modification of the default impairment value. His evaluation actually showed a 31 percent
impairment, the same rating found in 2012. Also, appellant cannot disregard the two schedule
awards he received under the fifth edition of the A.M.A., Guides. These awards had already
compensated him for a 51 percent total impairment of his right lower extremity, primarily due to
arthritis that had worsened to “bone on bone.” With his total knee arthroplasty, of course,
appellant no longer has right knee arthritis. Even with a fair result from his surgery, his right
lower extremity impairment has improved, not worsened. Appellant is not entitled to an
additional award.
14

Id. at 515-16.

5

Appellant argues that OWCP erred in applying his most recent award, an additional
award of six percent, to the overpayment that the Board would later set aside. As he had already
received two schedule awards totaling 51 percent, OWCP properly denied an additional award in
2012, as it correctly does in 2014, based on an impairment rating of 31 percent following the
right knee arthroplasty. The Board will not require OWCP to release funds that are erroneously
granted.
CONCLUSION
The Board finds that appellant is not entitled to an additional schedule award for his right
lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, GRIDLEY POST
OFFICE, Gridley, CA, Employer
__________________________________________

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Appearances:
Norman F. Nivens, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0553
Issued: November 8, 2019

Case Submitted on the Record

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

JURISDICTION
On January 15, 2019, appellant through counsel, filed a timely appeal from a November 8,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated July 12, 2018, to the filing of
this

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.

appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 30, 2015 appellant, then a 54-year-old postmaster, filed an occupational
disease claim (Form CA-2) alleging that he sustained left shoulder pain and loss of range of motion
due to factors of his federal employment. He first became aware of his left shoulder condition and
realized it was related to factors of his federal employment on December 10, 2012. OWCP
accepted the claim for soft tissue lesion of left shoulder region.4
In an August 3, 2017 report, Dr. Robert Vogel, a Board-certified orthopedic surgeon,
utilized the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides)5 and opined that appellant had 16 percent permanent
impairment of the left upper extremity.
On August 23, 2017 and March 14, 2018 appellant filed schedule award claims (Form
CA-7).
In support of his claim, OWCP received a March 2, 2018 report from Dr. Joel A.
Weddington, a Board-certified orthopedic surgeon. Dr. Weddington utilized the sixth edition of
the A.M.A., Guides,6 to rate appellant’s permanent impairment due to loss of range of motion
(ROM). Dr. Weddington provided one set of measurements, and found that appellant had 14
percent permanent impairment of the left upper extremity due to loss of ROM.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time
of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
4

The statement of accepted facts indicates that OWCP accepted a traumatic injury claim under OWCP File No.
xxxxxx800 for a left shoulder injury which occurred on September 18, 2003 when appellant lifted a bucket of flats.
OWCP File No. xxxxxx800 was accepted for left rotator cuff tear, other affections of left shoulder region, left shoulder
tendinitis/bursitis. OWCP has not administratively combined OWCP File No. xxxxxx800 with OWCP File No.
xxxxxx122.
5

A.M.A., Guides (5th ed. 2001).

6

A.M.A., Guides (6th ed. 2009).

2

OWCP referred appellant to Dr. Arthur Auerbach, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a report dated April 27, 2018, Dr. Auerbach noted appellant’s
two accepted left shoulder injuries and related that appellant had undergone five left shoulder
surgical procedures. He reviewed a February 28, 2017 left shoulder magnetic resonance imaging
(MRI) arthrogram report from Dr. Phillip Sheldon, a Board-certified radiologist which revealed:
“(1) Repaired supraspinatus tendon is intact. Mild subdeltoid bursitis. (2) Fibers
of the distal aspect of the infraspinatus tendon are somewhat ill-defined. A portion
of this is due to artifact from prior surgical procedure. Tendon is presumed to be
intact as there is no extension of the joint fluid into this region. (3) Some fatty
replacement identified in both infraspinatus muscle and teres minor muscle. No
associated abnormalities in scapular notch. (4) Long head of biceps tendon not
identified and presumed to be completely torn and retracted. (Note: Had a biceps
tenodesis.) (5) Multiple hardware devices in the humeral head and a single device
in the glenoid.”
Dr. Auerbach determined that appellant had 34 percent permanent impairment of the left
upper extremity utilizing the A.M.A., Guides7 and the diagnosis-based impairment (DBI) method.
In forming his DBI rating, he referred to Table 15-5 of the shoulder regional grid,8 and noted that
appellant had undergone a left shoulder arthroplasty. Dr. Auerbach explained that appellant fell
into a category of class 3C, which had a default permanent impairment rating of 40 percent.
Applying the grade modifiers for functional history, physical examination, and clinical studies, he
concluded that appellant had 34 percent permanent impairment of the left upper extremity.
Dr. Auerbach also utilized the ROM method, provided three ROM measurements for appellant’s
left shoulder, and calculated 30 percent permanent impairment of the left upper extremity
impairment due to loss of ROM. He explained that pursuant to Table 15-34 at page 475, averaging
the three measurements for loss of ROM of the left shoulder, abduction at 47 degrees corresponded
to 6 percent impairment, flexion at 45 degrees corresponded to 9 percent impairment, extension at
46 degrees corresponded to 10 percent impairment, adduction at 25 degrees corresponded to 1
percent impairment, internal rotation at 90 degrees corresponded to 0 percent impairment, and
external rotation at 45 percent corresponded to 4 percent impairment, totaling 34 percent
permanent impairment.
In a June 22, 2018 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon and
district medical adviser (DMA), found that the report of Dr. Auerbach was flawed because he
indicated that appellant had a “shoulder replacement,” which was incorrect. He also found the
reports of Dr. Weddington and Dr. Vogel were flawed because ROM was only measured once.
The DMA referred to Table 15-59 and found that based on the mid-range value for a full-thickness
rotator cuff tear, and moving the award two places to the right, appellant would have seven percent
left upper extremity impairment, based on the net adjustment formula. He indicated that he utilized

7

Id.

8

Id. at 405.

9

Id. at 403.

3

three sets of ROM measurements, referred to Table 15-34,10 and found that appellant was entitled
to 10 percent impairment to the left upper extremity for loss of ROM. The DMA related that
appellant had 110 degrees of flexion which corresponded with 3 percent impairment rating, 40
degrees of extension which corresponded with 1 percent impairment, 85 degrees of abduction
which corresponded with 3 percent impairment, 30 degrees of adduction which corresponded with
1 percent impairment, 70 degrees of external rotation which corresponded with 0 percent
impairment, and 55 degrees of internal rotation which corresponded with 2 percent impairment,
totaling 10 percent permanent impairment. He noted that maximum medical improvement (MMI)
was reached on August 3, 2017, the date of Dr. Vogel’s rating.
By decision dated July 12, 2018, OWCP granted appellant a schedule award for 10 percent
permanent impairment of the left upper extremity. It specifically noted that the weight of the
medical evidence was given to the DMA, who correctly applied the A.M.A., Guides.
On August 10, 2018 counsel requested reconsideration. He discussed the medical evidence
and argued that the DMA improperly rejected the report of the second opinion physician,
Dr. Auerbach, because he indicated that appellant had a shoulder replacement. Counsel noted that
appellant had several surgeries to his left shoulder joint to improve function. He argued that the
rejection of the second opinion physician’s report was not valid, and clarification should have been
sought. No new medical evidence was submitted with his request.
By decision dated November 8, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application.11
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.12

10

Id. at 475.

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

4

A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.13 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.14 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.15
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered counsel’s correspondence as a
request for reconsideration and not as a claim for an increased schedule award.16 The underlying
issue on reconsideration is whether the medical evidence demonstrates a greater permanent
impairment. Thus, the Board must determine whether appellant presented sufficient evidence or
argument regarding the extent of permanent impairment to warrant a merit review pursuant to
5 U.S.C. § 8128(a).17
The Board finds that counsel raised a relevant legal argument in his request for
reconsideration, which was not previously considered.
Counsel argued that the DMA rejected Dr. Auerbach’s second opinion report without
sufficient justification. He related that the DMA found that Dr. Auerbach had improperly rated
appellant for left “shoulder replacement” under the DBI method because the DMA defined
arthroplasty as total shoulder replacement. Counsel agreed that appellant had not undergone total
shoulder replacement, but he alleged that the term “arthroplasty” encompassed other surgical
procedures which involved surgical restoration of joint function either by repairing damaged
structures or by inserting an artificial joint. He also argued that the DMA improperly rejected
Dr. Auerbach’s three sets of ROM measurements in determining appellant’s permanent
impairment utilizing the ROM method. Counsel argued that OWCP should have sought
clarification from the second opinion physician, if the DMA found Dr. Auerbach’s report
insufficient.

13
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the integrated Federal Employees’
Compensation System. Id. at Chapter 2.1602.4b.
14

Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).

15

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

16

B.W., Docket No. 18-1415 (issued March 8, 2019).

17

S.W., Docket No. 18-1261 (issued February 22, 2019).

5

The Board finds that appellant’s request for reconsideration raised relevant arguments not
previously considered or addressed by OWCP and are therefore sufficient to warrant reopening
the claim for further merit review. Pursuant to 20 C.F.R. § 10.606(b)(3), appellant is entitled to a
merit review of the claim. The case will be remanded to OWCP for an appropriate merit decision.18
CONCLUSION
The Board finds that appellant is entitled to a merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision.
Issued: November 8, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18
The Board also notes that on remand OWCP should combine OWCP File No. xxxxxx122 with OWCP File No.
xxxxxxx800.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RICHARD L. ROUDEBUSH VA MEDICAL
CENTER, Indianapolis, IN, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0404
Issued: July 22, 2020

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 10, 2019 appellant, through counsel, filed a timely appeal from an
October 28, 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.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish lumbar conditions
causally related to the accepted December 13, 2016 employment incident.
FACTUAL HISTORY
On December 15, 2016 appellant, then a 43-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that on December 13, 2016 he injured his low back
when he lifted and slid a heavy patient in her extra wide wheelchair into position to get her on a
wheelchair ramp while in the performance of duty. On the reverse side of the claim form, the
employing establishment indicated by checking a box marked “No” that he was not injured while
in the performance of duty and noted that he had a known, preexisting back condition with ongoing
work restrictions.3 Appellant stopped work and received continuation of pay.
In a December 19, 2016 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and provided a questionnaire for completion. OWCP
afforded appellant 30 days to provide the necessary factual information and medical evidence.
Appellant submitted a driver manifest and driver log book for the period December 9 to 13,
2013 and an e-mail dated December 14, 2016, which indicated that appellant had informed T.R.,
a human resource specialist for the employing establishment, that he had “tweaked” his back on
December 13, 2016.
In a December 14, 2016 work status note and narrative letter, Dr. Nilda Durany, who
specializes in family medicine, related appellant’s complaints of low back pain with radicular pain
into both legs. She noted that appellant worked as a motor vehicle operator and described that on
December 13, 2016 he felt a “pull in his lower back causing immediate pain” when he lifted and
slid a patient in a wheelchair onto the wheelchair ramp. Upon examination of appellant’s lumbar
spine, Dr. Durany observed decreased range of motion with pain and spasm and tenderness upon
palpation. She further reported positive straight leg raise testing on the right and positive Kemp’s
test bilaterally. Dr. Durany indicated that a lumbar spine magnetic resonance imaging (MRI) scan
showed grade 4, L5 on S1 spondylolisthesis. She diagnosed lumbar sprain, spondylolisthesis L5,
grade 4, sciatica, lumbar, sacral, and pelvic subluxation and opined that the injury appellant
sustained was a direct result of him lifting his patient on December 13, 2016. Dr. Durany noted
that appellant had previous low back injuries and that an October 4, 2012 lumbar x-ray examination
report showed L5-S1 pars defect with minimal anterolistehsis on L5-S1 that appeared stable. She
reported that the December 13, 2016 lifting injury further injured the pars and made it unstable,
causing a grade 4, L5 on S1 spondylolisthesis. Dr. Durany advised that appellant was “off work”.
In an e-mail dated December 20, 2016, T.R. noted that appellant had a previous low back
injury claim that was denied by OWCP. She described the December 13, 2016 incident and related
3

Appellant has two previously filed traumatic injury claims for alleged lumbar injuries sustained on February 22,
2012 under OWCP File No. xxxxxx422 and on October 4, 2015 under OWCP File No. xxxxxx708. Both claims were
denied.

2

that appellant had contacted his doctor the following morning. T.R. reported that appellant claimed
that this current back pain was at a different level than his previous back problems.
Dr. Durany also completed a duty status form report (Form CA-17) and an attending
physician’s report (Form CA-20) dated December 20, 2016. She described the December 13, 2016
lifting incident and indicated that appellant had preexisting grade 1, L5 spondylolisthesis.
Dr. Durany diagnosed lumbar sprain and grade 4, L5 spondylolisthesis. She checked a box marked
“Yes” indicating that appellant’s condition was caused or aggravated by the employment activity.
Dr. Durany explained “pushing, lifting, and sliding a 300-pound patient caused L5 to go from
[g]rade 1 to [g]rade 4.” She advised that appellant was totally disabled from work.
In a December 28, 2016 letter, T.R. indicated that the employing establishment was
controverting appellant’s claim on the basis of fact of injury and causal relationship. She alleged
that the van operated by appellant was equipped with a powered wheelchair lift so it was not
necessary for appellant to ever lift the patient or exert high levels of pushing or pulling. T.R. also
noted that appellant continued to work on December 13, 2016 and did not report the incident to
his supervisor.
A December 29, 2016 note by Dr. Durany indicated that appellant was seen in the office
that day and was unable to return to work. She reported that appellant’s lumbar spine was unstable
at L5 and that he could not lift at that time.
In a January 12, 2017 Form CA-17, Dr. Durany noted a December 13, 2016 date of injury
and clinical findings of lumbar sprain and grade 4, L5 spondylolisthesis. She checked a box
marked “No” indicating that appellant could not work.
On January 13, 2017 appellant submitted his completed questionnaire, signed on January 3,
2017, and an undated statement. He recounted that on December 13, 2016 he picked up a patient
from her apartment to take her to an appointment and, when he lifted and pulled the wheelchair
with the patient to line up with the wheelchair ramp, he felt a pull in his lower back which caused
pain. Appellant explained that he continued working, but as the day went on, the pain worsened.
OWCP received emergency department records and discharge instruction sheets dated
February 22 and October 4, 2012, which related that appellant was treated for complaints of low
back pain following a back strain injury. Appellant was diagnosed with low back pain. He also
submitted March 5, 2015 emergency department records and discharge instructions sheet, which
indicated that he received medical treatment after being involved in a motor vehicle collision. The
discharge diagnosis was back strain.
In a January 20, 2017 letter, T.R. asserted that appellant had not submitted any medical
narrative or other substantive medical documentation since December 28, 2016. She reported that
she was enclosing pertinent medical records from appellant’s previously denied claims. OWCP
received appellant’s timesheets ranging from November 22, 2009 to November 26, 2016, e-mails
dated from November 27, 2012 to April 22, 2015 regarding appellant’s previous workers’
compensation claims, and a February 3, 2014 denial of accommodation request. It also received
medical reports dated November 1 and 27, 2012; a November 2, 2012 Form CA-20, an October 4,
2012 lumbar spine x-ray report, and an October 11, 2012 lumbar spine MRI scan report.

3

By decision dated January 30, 2017, OWCP denied appellant’s claim. It accepted that the
December 13, 2016 incident occurred as alleged, but it denied his claim finding that appellant had
failed to establish causal relationship between the accepted employment incident and his diagnosed
lumbar condition.
On February 22, 2017 appellant requested reconsideration and submitted additional
medical evidence, including physical therapy treatment reports dated from December 15, 2016 to
February 23, 2017.
Appellant also submitted a February 13, 2017 letter by Dr. Durany that was substantially
similar to her previous December 14, 2016 letter. In the “Discussion and Causation” section,
Dr. Durany explained that, as appellant lifted and pulled the patient’s extra wide wheelchair onto
the wheelchair ramp, it caused his lumbosacral spine to twist and he felt immediate pain. She
discussed the findings of a December 14, 2016 lumbar spine x-ray and a December 15, 2016
lumbar spine MRI scan. Dr. Durany reported that it was with reasonable medical certainty that
the “injury that [appellant] sustained when lifting and pulling the [heavy] patient’s extra wide
wheelchair, twisted [appellant’s] lumbosacral spine causing a lumbosacral sprain injury,
aggravation and exacerbation of his preexisting L5-S1 spondylolisthesis, L2-L3 shallow central
disc protrusion and annular tear and vertebral subluxation complex as demonstrated on the
December 14, 2016 x-ray scans.” She diagnosed lumbosacral sprain, spondylolisthesis at L5 grade
1, lumbosacral radiculopathy, other intervertebral disc displacement of the lumbar region, and
lumbar, sacral, and pelvic vertebral subluxation complex. Dr. Durany concluded that appellant’s
diagnosed conditions were directly related to the December 14, 2016 injury at work.
By decision dated April 19, 2017, OWCP denied modification of the February 6, 2017
decision.
On February 26, 2018 appellant, through counsel, requested reconsideration. In an
attached letter, counsel indicated that she was submitting a new April 25, 2017 report by
Dr. Durany, which established that the December 13, 2016 employment incident caused
appellant’s injury.
Appellant submitted an April 25, 2017 letter by Dr. Durany who described the
December 13, 2016 employment incident and reviewed appellant’s medical history, including his
prior motor vehicle accident and preexisting back conditions. She discussed appellant’s diagnostic
testing and provided examination findings similar to her previous letters. Dr. Durany diagnosed
lumbosacral sprain, lumbosacral radiculopathy, intervertebral disc displacement, lumbar vertebral,
sacral vertebral, and pelvic vertebral subluxation complex and opined that these conditions were
directly caused by appellant’s December 14, 2016 injury.
Dr. Durany further explained that when appellant lifted and pulled the patient’s wheelchair
onto the ramp on December 13, 2016, it caused his lumbosacral spine to twist. She indicated that
twisting or rotating the lumbar spine while lifting causes stress and can tear the ligaments that
connect each of the vertebra, resulting in a sprain. Dr. Durany further reported that a rotation of
the lumbar spine causes a displacement of the disc in between, which is forced out of its confined
space (herniates) between the vertebra, and can then put pressure on the nerves of the spine which
exit the vertebral canal through the intervertebral foramen (spaces). She related that the acute pain

4

that appellant feels in his lumbosacral spine was due to the following: “a sprain of the lumbosacral
ligaments, (the lumbosacral ligaments attach one both to another), the annular disc tear and
protrusion at L2-3 (which is the spongy material between the vertebrae which is now protruding
outside of its space, and aggravation of the spondylolisthesis at L5-S1 and the L5 bilateral pars
fractures (pars fractures are when the bone breaks and is caused by extension or bending in a
backward position of the lumbar spine or low back).” Dr. Durany also indicated the chronic
bilateral L5 pars fracture was a consequence of repetitive stress that preexisted the December 13,
2016 incident, but was aggravated by the lifting and pulling of the heavy patient in a wheelchair.
She reported that this aggravation resulted in lumbar vertebral subluxation complex, sacral
vertebral subluxation complex, and pelvic vertebral subluxation complex.
OWCP also received a February 7, 2018 narrative report by Dr. Durany who opined that
appellant’s examination results and diagnosis were consistent with lumbar sprain and annular tear.
Dr. Durany further elaborated that the lifting, pulling, and pushing on December 13, 2016 had a
direct causal relationship with this diagnosis. She indicated that the bilateral L5 pars fractures and
grade 1 anterolisthesis of L5-S1 was a chronic condition, which had remained unchanged, but was
aggravated due to lifting and pulling a wheelchair with a heavy patient. Dr. Durany noted that the
subluxation complexes were due to appellant lifting and pulling extreme weight subluxating the
associated vertebrae from proper alignment.
By decision dated October 16, 2018, OWCP denied modification of the April 19, 2017
decision.
On October 8, 2019 appellant, through counsel, requested reconsideration. Counsel
asserted that new medical evidence established causal relationship between appellant’s diagnoses
and the claimed December 13, 2016 employment injury. She also contended that, if the medical
evidence of record was unclear, OWCP should remand appellant’s claim for further development.
OWCP received a December 14, 2016 lumbar spine x-ray examination report, which
showed grade 1, L5 on S1 spondylolisthesis with partial uncovering of the posterior disc annulus,
secondary to chronic bilateral L5 pars fracture, the L5-S1 foramen is mildly narrowed bilaterally,
and shallow central protrusion and annular tear at L2-3 without impingement.
In an undated report, Dr. Jerry Powell, who specializes in family medicine, related that
appellant had been a patient in his office since December 14, 2016 and was receiving treatment
for a work-related injury. He described the December 13, 2016 employment incident and opined
that the excessive weight and force used to lift, rotate, and pull the extra wide wheelchair caused
appellant’s injuries. Dr. Powell reported: “[appellant’s] lifting, pulling, twisting, and bending to
move the wheelchair caused lumbosacral spine (ligaments and discs) to tear and be pushed beyond
the biomechanical and structural limits, hence the lumbosacral sprain and the disc displacement
with radiculopathy and lumbar, sacral, and pelvic subluxations. This also aggravated and
worsened a preexisting grade 1, L5 spondylolisthesis.” Dr. Powell listed appellant’s specific workrelated injuries as lumbosacral strain, central disc protrusion, subluxation complex noted L4-5,
S1joint on the right, sacrum, and pelvis, and lumbar radiculopathy.
Appellant submitted medical reports dated February 7, 2014 to February 23, 2016 by
Dr. Warren Hoyt, a Board-certified family physician, who related that he was treating appellant

5

for follow-up of chronic conditions, including obstructive sleep apnea, lumbar back pain, asthma,
and obesity.
By decision dated October 28, 2019, OWCP denied modification of the October 16, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 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.7
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.8
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged.9 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.10
To establish 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.11 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
11

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

6

the specific employment factor(s) identified by the employee.12 The weight of the 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.13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted an undated report by Dr. Powell who described
the December 13, 2016 employment incident and opined that the excessive weight and force used
to lift, rotate, and pull the extra wide wheelchair caused appellant’s injuries. Dr. Powell reported:
“[appellant’s] lifting, pulling, twisting, and bending to move the wheelchair caused lumbosacral
spine (ligaments and discs) to tear and be pushed beyond the biomechanical and structural limits,
hence the lumbosacral sprain and the disc displacement with radiculopathy and lumbar, sacral, and
pelvic subluxations.
This also aggravated and worsened a preexisting grade 1, L5
spondylolisthesis.” Dr. Powell listed appellant’s specific work-related injuries as lumbosacral
strain, central disc protrusion, subluxation complex noted L4-5, S1 joint on the right, sacrum, and
pelvis, and lumbar radiculopathy.
Appellant also submitted medical reports and letters from Dr. Durany dated December 14,
2016 to February 7, 2018. In her initial report, she accurately described that on December 13,
2016 appellant felt a “pull in his lower back” after he lifted and slid a patient in a wheelchair onto
the wheelchair ramp while at work. Dr. Durany provided examination findings and noted that a
lumbar spine MRI scan report revealed grade 4, L5 on S1 spondylolisthesis. She diagnosed lumbar
sprain, spondylolisthesis L5, grade 4, sciatica, lumbar, sacral, and pelvic subluxation and opined
that the injuries appellant sustained were a direct result of the December 13, 2016 employment
injury. In an April 25, 2017 letter, Dr. Durany further explained that appellant twisted his
lumbosacral spine when he lifted and pulled the patient’s wheelchair onto the ramp. She indicated
that twisting or rotating the lumbar spine while lifting causes stress and can tear the ligaments that
connect each of the vertebra, resulting in a sprain. Dr. Durany also related that rotating the lumbar
spine causes a displacement of the disc in between, which forces it out of its space (herniate)
between the vertebra and can put pressure on the nerves of the spine. She further indicated the
chronic bilateral L5 pars fracture was a consequence of repetitive stress that preexisted the
December 13, 2016 incident, but was aggravated by the lifting and pulling of the heavy patient in

12

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
13

James Mack, 43 ECAB 321 (1991).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

7

a wheelchair and caused the lumbar vertebral subluxation complex, sacral vertebral subluxation
complex, and pelvic vertebral subluxation complex.
Both Dr. Powell and Dr. Durany described the December 13, 2016 employment incident
and provided an explanation of how this type of traumatic injury would cause or contribute to
appellant’s diagnosed condition. Their opinions demonstrate sufficient knowledge of appellant’s
preexisting lumbar conditions and provide the mechanism of injury explaining how rotating and
twisting his back on December 13, 2016 put stress and tore the ligaments that connect the vertebra,
caused a displacement of the discs, and forced the discs out of its confined space. They also noted
physical findings upon examination and provided an opinion based on an accurate background.
Thus, the Board finds that, while these physicians’ opinions are not sufficiently rationalized to
meet appellant’s burden of proof to establish his claim, they are sufficient to require further
development of the record by OWCP.15
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.16 OWCP has an obligation to see that justice is done.17
Therefore, the Board finds that the case shall be remanded to OWCP. On remand OWCP
shall prepare a statement of accepted facts and refer the matter to an appropriate medical specialist.
Upon referral, the physician shall conduct a physical evaluation and provide a rationalized medical
opinion as to whether appellant’s lumbar conditions were caused or aggravated by the
December 13, 2016 employment incident. Following this, and any other 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.

15

See D.P., Docket No. 19-1596 (issued April 23, 2020); J.P., Docket No. 19-1206 (issued February 11, 2020).

16
See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB
699, 707 (1985).
17
See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).

8

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 22, 2020
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

9


United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1382
Issued: March 7, 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 May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101et seq.

2

a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

3

The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that appellant has
not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 14
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
16

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Supra note 11 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
17

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

18

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

5

appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 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

7