United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, GULF ATLANTIC
DISTRICT PERFORMANCE CENTER,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1086
Issued: January 27, 2021

Case Submitted on the Record

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

JURISDICTION
On April 28, 2020 appellant, through counsel, filed a timely appeal from an October 31,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated September 24, 2018, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 31, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 19, 2014 appellant, then a 61-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 20, 2014 she picked up a bucket of mail to empty
onto a ledge and injured her lower back and right shoulder while in the performance of duty.
OWCP accepted her claim for aggravation of lumbar degenerative disc disease and bursitis of the
right shoulder, and paid wage-loss compensation for total disability, commencing January 5, 2015.
On October 20, 2015 Dr. William W. Brooks, a Board-certified orthopedic surgeon, performed
OWCP-authorized bilateral laminectomies at L4, bilateral facetectomies and foraminal
decompression procedures at L4-5, and posterior spine fusion at L4-5.
Appellant received medical care from Dr. Dennis Jorgensen, a Board-certified orthopedic
surgeon, and Dr. Jeremy Prine, a Board-certified anesthesiologist. On August 18, 2016 she
underwent a functional capacity evaluation (FCE), which demonstrated that she had physical work
capacity at the sedentary-light level. On September 7, 2016 Dr. Brooks completed a September 7,
2016 report and work capacity evaluation (Form OWCP-5c) in which he advised that appellant
was capable of working full time with restrictions, including no reaching above shoulder level with
her right arm.
On November 21, 2016 OWCP referred appellant for a second opinion examination with
Dr. Sarveswar Naidu, a Board-certified orthopedic surgeon. It requested that Dr. Naidu evaluate
appellant’s work capacity. In a December 6, 2016 report, Dr. Naidu diagnosed complete rotator
cuff tear of the right shoulder and postoperative lumbar fusion at L4-5 with stenosis and
radiculopathy. He noted that appellant’s lumbar sprain and right shoulder bursitis had resolved,
but noted that there were residuals from the intervertebral disc degeneration and fusion of the
lumbar spine and from the rotator cuff injury. Dr. Naidu confirmed that appellant needed repair
of the right rotator cuff and follow-up therapy, but opined that she was still capable of performing
a sedentary job as discussed in the FCE. He completed a Form OWCP-5c on December 6, 2016,
which listed recommended work restrictions, including no lifting, pushing, or pulling more than
10 pounds, and no reaching above shoulder level with the right arm. Dr. Naidu advised that
appellant needed to take a 10-minute break every 2 hours. In a February 8, 2017 addendum report,
he opined that the diagnosed rotator cuff tear was causally related to the November 20, 2014 work
injury.
As a result of Dr. Naidu’s reports, OWCP expanded the accepted conditions to include
sprain of the rotator cuff capsule and complete rotator cuff tear of the right shoulder.
On June 15, 2017 OWCP requested that the employing establishment extend a job offer to
appellant based on the work restrictions of Dr. Naidu.
Appellant was scheduled for rotator cuff repair surgery on June 20, 2017; however, the
surgery was postponed due to nonwork-related bronchial symptoms. A June 15, 2017 report was
later received from Dr. Prine in which he noted that appellant was not medically able to return to
work at that time. Dr. Prine indicated that she was unable to return to work without restrictions,
2

noting that she first needed to undergo treatment with steroid epidural injections. OWCP
authorized this treatment and appellant underwent the first injection on August 23, 2017.
On August 31, 2017 the employing establishment offered appellant a temporary limitedduty job as a modified rural carrier. The duties of the full-time, modified position included
answering telephone calls, handling web camera alerts, engaging in package location resolution
duties, and enterprise customer care duties. Each of these four duties was to be performed for two
hours per day. The physical requirement of sitting for eight hours per day was listed on the first
page of the job offer.4 On the second page of the job offer the position was listed as sedentary in
nature, and noted that, in general, sedentary work involved sitting most of the time, but might
involve walking or standing for brief periods of time. The job offer also noted that sedentary work
involved exerting up to 10 pounds of force occasionally to lift, carry, push, pull, or otherwise move
objects, including the human body. Further, the job offer noted that the package location resolution
duties required appellant to investigate customer inquiries utilizing a computer or telephone, and
that enterprise customer care duties involved case research and follow up of closed cases to ensure
quality closure and timely handling of customer issues. Handling the web camera alerts required
monitoring lobby activity on a web camera in order to improve customer service.
On September 18, 2017 the employing establishment advised OWCP that appellant had
not reported to work.
Appellant submitted a September 15, 2017 report from Dr. Prine who opined that appellant
was unable to sit for eight hours at a time, and recommended an additional FCE be performed
before she returned to work. A September 19, 2017 report from Dr. Jorgensen noted that appellant
was at maximum medical improvement (MMI) regarding her back and that she wanted to discuss
being rescheduled for right shoulder surgery. Dr. Jorgensen indicated work restrictions of no
lifting greater than five pounds, no pushing or pulling, and no above-head activity pending surgery
approval. The case record reflects that appellant underwent a second lumbar injection on
September 28, 2017.
On October 5, 2017 the employing establishment confirmed that the temporary job offer
remained available.
On October 12, 2017 OWCP issued a notice of proposed termination of wage-loss
compensation in accordance with 20 C.F.R. §10.500(a), advising appellant that the temporary
modified assignment offered by the employing establishment on August 31, 2017 appropriately
accommodated Dr. Naidu’s work restrictions, which constituted the weight of medical evidence
with respect to such restrictions. It afforded appellant 30 days to accept the job and return to work,
or to provide written explanation for not doing so.
In a November 10, 2017 response, counsel noted that appellant still had not been medically
cleared to undergo the approved right shoulder surgery. He noted the restrictions of Dr. Naidu and
indicated that the job offer did not mention his recommendation for a 10-minute break every 2
hours. Counsel asserted that on September 19, 2017 Dr. Jorgensen limited appellant’s lifting
capacity to 5 pounds, rather than the 10 pounds indicated by Dr. Naidu. He contended that
The employing establishment indicated that appellant had to engage in “sitting/walking/standing” for four hours
per day. Moreover, appellant could not reach above shoulder level, twist with her right arm, bend, stoop, squat, kneel,
or operate a motor vehicle at work.
4

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appellant was denied due process because OWCP did not provide her treating physicians with a
copy of Dr. Naidu’s second opinion report, and that there was a conflict in the medical opinion
evidence between Dr. Jorgensen and Dr. Naidu regarding the lifting restrictions. Counsel argued
that Dr. Naidu’s restrictions were not contemporaneous to the job offer and should not be relied
upon. For these reasons, he contended that OWCP had failed to meet its burden of proof to
terminate appellant’s wage-loss compensation.
Appellant submitted additional medical evidence, including October 10, November 14,
December 12, 2017, and January 30, 2018 reports from Dr. Prine. A November 28, 2017 letter
from the employing establishment advised that appellant had failed to respond to the job offer,
which was still available, and that she had not reported back to work.
By decision dated February 27, 2018, OWCP terminated appellant’s entitlement to wageloss compensation benefits, effective February 28, 2018, in accordance with 20 C.F.R. §10.500(a),
on the basis that appellant failed to accept and return to the temporary job assignment deemed
appropriate by OWCP.
On March 22, 2018 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
During the hearing held on July 11, 2018, counsel argued that Dr. Naidu’s work restrictions
were stale with respect to the job offered by the employing establishment. He also noted that
Dr. Naidu’s work restrictions were not consistent with the physical requirements of the job.
Counsel alternatively argued that there was a conflict in the medical opinion evidence between
Dr. Jorgensen and Dr. Naidu regarding lifting restrictions. He also noted that appellant had been
prescribed narcotic medication for her work-related injuries which impacted her ability to work.
Counsel asserted that there were additional conditions which had arisen as a result of the
November 20, 2014 work injury, including a herniated disc at L4-5, which required additional
development of the medical evidence.
Appellant submitted additional medical records, including a July 19, 2018 report from
Dr. Jorgensen, who provided work restrictions which included no pushing, pulling, or lifting
greater than 10 pounds for above shoulder level work. She also submitted June 22, July 20, and
August 24, 2018 reports from Dr. Prine.
By decision dated September 24, 2018, OWCP’s hearing representative affirmed the
February 27, 2018 decision.
Appellant then submitted numerous medical reports, including reports of Dr. Prine dated
September 18, October 15 and 29, November 11, and December 5, 2018, and February 19, 2019,
and reports of Dr. Jorgensen dated November 29 and December 11, 2018. She also submitted
numerous reports from her hospitalization related to OWCP-authorized right shoulder surgery
performed on February 13, 2019.
On September 23, 2019 appellant, through counsel, requested reconsideration of the
September 24, 2018 decision. Counsel noted, in his September 23, 2019 reconsideration letter,
“Additional documentation has been submitted to the file for your consideration…. [Appellant]

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contends that the new evidence warrants a merit review of this request and the claim in its
entirety.”5
By decision dated October 31, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted, “In his letter [counsel] noted
that additional documentation was submitted to your file for consideration. However, the evidence
was not included with his letter. Counsel also failed to specify the supporting evidence. Because
[counsel’s] letter neither raised substantive legal questions nor included new and relevant
evidence, it is insufficient to warrant a review of our prior decision at this time.”
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, appellant 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.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 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.10 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record11 and the

5

Appellant also submitted additional medical evidence after making her reconsideration request.

6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
8
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
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 (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
11

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

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submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.12
ANALYSIS
The Board finds that the case is not in posture for decision.
The Board notes that on September 24, 2018 OWCP’s hearing representative affirmed
OWCP’s February 27, 2018 decision, which effectuated the termination of appellant’s entitlement
to wage-loss compensation, in accordance with 20 C.F.R. § 10.500(a).
After the issuance of the September 24, 2018 decision, appellant submitted numerous
medical reports, including reports of Dr. Prine dated September 18, October 15 and 29,
November 11, December 5, 2018, and February 19, 2019, and reports of Dr. Jorgensen dated
November 29 and December 11, 2018. She also submitted numerous reports from her
hospitalization related to OWCP-authorized right shoulder surgery performed on
February 13, 2019. Collectively, these medical reports consisted of hundreds of pages. On
September 23, 2019 appellant, through counsel, filed a timely request for reconsideration of the
September 24, 2018 decision and specifically mentioned that new medical evidence had been
submitted in conjunction with the reconsideration request.13
By decision dated October 31, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). However, it did not discuss or otherwise
consider any of the medical reports that had been submitted by appellant.
In deciding matters pertaining to a given claimant’s entitlement to compensation benefits,
OWCP is required by statute and regulation to make findings of fact.14 The Federal (FECA)
Procedure Manual further specifies that a final decision of OWCP “should be clear and detailed
so that the reader understands the reason for the disallowance of the benefit and the evidence
necessary to overcome the defect of the claim.”15 These requirements are supported by Board
precedent.16
The Board finds that, given OWCP’s failure to discuss or otherwise consider any of the
medical reports submitted by appellant upon reconsideration, it did not provide adequate facts and
findings in support of its denial of appellant’s request for review of the merits of her claim.
Therefore, appellant would not understand the reason for the disallowance of her claim and the
evidence necessary to overcome the defect of the claim. Consequently, the case shall be remanded

12

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

See supra note 8. Appellant also submitted additional medical evidence after making her reconsideration request.

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
14

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e)
(February 2013).
16

See P.G., Docket No. 17-1461 (February 7, 2019); James D. Boller, Jr., 12 ECAB 45, 46 (1960).

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to OWCP in order for it to provide an appropriate decision which contains adequate facts and
findings regarding appellant’s reconsideration request.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 31, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: January 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
FEDERAL AVIATION ADMINISTRATION,
CHARLOTTE/DOUGLAS INTERNATIONAL
AIRPORT, Charlotte, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1437
Issued: November 2, 2016

Case Submitted on the Record

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

On July 2, 2016 appellant filed a timely appeal of a June 29, 2016 decision of the Office
of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 16-1437.
On review of the case record the Board finds the case must be remanded to OWCP. By
decision dated March 10, 2016, OWCP found appellant had been paid compensation based on an
incorrect weekly pay rate of $2,292.06 from July 18, 2013 to March 5, 2016. It found the correct
pay rate was $2,129.81. The June 29, 2016 OWCP decision on appeal finalizes a March 16,
2016 preliminary determination that an overpayment of $16,740.25 was created, based on use of
an incorrect pay rate for compensation purposes.
The Board reviewed the March 20, 2016 decision on a prior appeal. By decision dated
July 27, 2016, the Board remanded the case to OWCP.1 The Board found the evidence was
insufficient to make a proper determination as to the correct pay rate for compensation purposes.
It was noted that appellant had argued that he was in a “learner’s capacity” under 5 U.S.C.
§ 8113 at the time of injury on March 15, 2013, and therefore the pay rate should correspond to a
probable higher wage-earning capacity upon completion of training. The Board found the case
1

Docket No. 16-0881(issued July 27, 2016).

was not in posture for decision, and additional development was required to properly determine
appellant’s rate of pay.
In view of the Board’s finding as to the pay rate, the June 29, 2016 overpayment decision
is not in posture for decision. The correct pay rate has not been determined, and OWCP should
properly develop the evidence in accord with the Board’s July 27, 2016 decision. Once a proper
determination is made as to the correct pay rate, OWCP may then address an overpayment issue
if necessary. The case will be remanded to OWCP to properly resolve the issues regarding pay
rate and a possible overpayment of compensation. After such further development as is deemed
necessary, OWCP should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2016 is set aside and the case remanded to OWCP for
further action consistent with this order of the Board.
Issued: November 2, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, MUNSTER POST
OFFICE, Munster, IN, Employer
__________________________________________

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

Docket No. 20-1485
Issued: March 22, 2021

Case Submitted on the Record

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

JURISDICTION
On August 6, 2020 appellant, through counsel, filed a timely appeal from a July 8, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than
180 days has elapsed from OWCP’s last merit decision, dated July 3, 2019, 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.
Counsel did not appeal from OWCP’s nonmerit decision dated June 2, 2020, which denied appellant’s June 1,
2020 reconsideration request. He identified only the nonmerit decision dated July 8, 2020 on the application for
review (Form AB-1). Therefore, the Board will not consider the June 2, 2020 OWCP decision on appeal. See 20
C.F.R. § 501.3; see also L.J., Docket No. 19-0211 (issued July 10, 2019).
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appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 30, 2016 appellant, then a 52-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging cervical, lumbar, chest, and left hip conditions due to her
repetitive employment duties.4 She noted that she first became aware of her condition on
December 4, 2014 and its relationship to her federal employment on February 17, 2016. Appellant
stopped work on December 21, 2015.5
In a development letter dated April 19, 2016, OWCP advised appellant of the additional
factual and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. In a separate letter of even date, it also requested additional information from the
employing establishment. OWCP afforded both parties 30 days to submit the requested evidence.
On May 18, 2016 OWCP received appellant’s completed development questionnaire.
Appellant explained that the wall of her chest ached when she carried and lifted a heavy mail
satchel while delivering mail on her walking route. She noted that she sought medical treatment
at the hospital. Appellant indicated that she did not sustain any other injury, did not have similar
disabilities before the injury, and had never been diagnosed with coronary artery disease. She
asserted that the weight of her mail satchel caused a disc in her neck to slip, which caused pain
across the wall of her chest, neck, and shoulders.
Appellant submitted a March 5, 2004 job offer for a mail carrier position, an October 27,
2011 employee reassignment and medical assessment questionnaire form, an October 28, 2011
occupational health medical assessment determination, a December 3, 2012 accident information
record regarding a November 30, 2012 dog bite incident, and a December 4, 2012 e-mail from an
occupational health nurse.
OWCP also received medical reports, including a March 10, 2004 occupational health
medical assessment report, a June 17, 2005 work status note, an October 5, 2012 chest x-ray
3

5 U.S.C. § 8101 et seq.

4

The record reveals that the same Form CA-2 was used to create two separate claims. Under OWCP File No.
xxxxxx091, appellant has alleged an aggravation of her abdominal pain, nausea, and gastrointestinal issues due to
stress and anxiety from factors of her federal employment. Under the current claim, OWCP File No. xxxxxx759,
appellant has alleged cervical, lumbar, chest, and left hip conditions due to her repetitive employment duties. These
cases have not been administratively combined by OWCP.
5
Appellant has a previously accepted claim for a lumbar condition. Under OWCP File No. xxxxxx842 OWCP
accepted that appellant sustained a low back contusion, resolved, due to an August 13, 2014 employment injury.

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examination report, hospital records dated March 7 and 8, 2014, an April 28, 2016 lumbar spine
magnetic resonance imaging (MRI) scan report, work status notes dated April 28 and May 9, 2016,
hospital emergency department records dated April 25, 2016, a May 9, 2016 work status note, and
cervical spine MRI scan reports dated May 9 and 12, 2016.
In reports dated May 9 and 18, 2016, Dr. Mario P. Brkaric, a Board-certified orthopedic
surgeon, indicated that a lumbar spine MRI scan had shown degeneration at L5-S1 with disc
herniation and that a cervical spine MRI scan report had shown disc herniation at C5-6. He also
recounted appellant’s complaints of significant radiculopathy into her left arm. Dr. Brkaric
authorized appellant to work with restrictions.
In a July 8, 2016 decision, OWCP denied appellant’s occupational disease claim finding
that she had not submitted medical evidence containing a diagnosis in connection with the accepted
employment factors. Accordingly, it found that the requirements had not been met to establish an
injury as defined by FECA.
On July 13, 2016 appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review, which was held on November 16, 2016.
OWCP subsequently received a December 9, 2016 handwritten statement by appellant.
Appellant alleged that she developed left side shoulder pain and impingement and cervical pain
from carrying a satchel loaded with mail on her left shoulder. She asserted that she developed
lumbar radiculopathy, hip pain, and a lower back pinched nerve disc as a result of repetitively
walking, twisting, bending, and picking up heavy objects while she walked and delivered mail.
In a January 24, 2017 decision, an OWCP hearing representative affirmed the July 8, 2016
decision with modification. She determined that the medical evidence of record was sufficient to
establish diagnosed cervical and lumbar conditions. However, the hearing representative denied
appellant’s claim because the medical evidence of record was insufficient to establish causal
relationship between the diagnosed conditions and the accepted factors of employment.
On August 29, 2017 appellant requested reconsideration and submitted a May 6, 2017
narrative report by Dr. Kevin Schendel, a Board-certified internist, who opined that appellant had
left low back pain syndrome aggravated by her job as a mail carrier. Dr. Schendel also reported
that it seemed “very likely” that appellant’s left shoulder impingement syndrome and neck pain
were aggravated by her occupation. He noted that she carried a heavy satchel of mail, reached into
the mail satchel, and used her rotator cuff system to dispense the mail to residents.
By decision dated November 27, 2017, OWCP denied modification of the January 24,
2017 decision.
Appellant disagreed with the decision and continued to request reconsideration on May 9
and September 26, 2018. She submitted a June 27, 2018 lumbar spine MRI scan report and a
September 13, 2018 cervical spine MRI scan report.
OWCP also received a March 7, 2018 report by Dr. Nilda Durany, who specializes in
family medicine, who reviewed appellant’s history, conducted an examination, and discussed
diagnostic testing results. Dr. Durany described appellant’s employment duties of carrying a
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satchel full of mail, walking, and rotating her neck to deliver mail and packages. She opined that
appellant’s medical conditions were a direct result of her work duties on April 17, 2016.
Appellant submitted an undated report by Dr. Jerry Powell, who specializes in family
medicine. Dr. Powell noted physical examination findings, discussed recent diagnostic testing,
and diagnosed other cervical disc degeneration, kyphosis of the cervical spine, spondylosis
cervical and lumbar region, lumbar intervertebral disc disorder with myopathy, right hip contusion,
and left rotator cuff sprain. He concluded that appellant sustained the above-described medical
conditions as a direct result of her required work duties for the employing establishment on
April 17, 2016.
By decisions dated August 7 and November 1, 2018, OWCP denied modification of its
prior decisions.
On November 26, 2018 appellant requested reconsideration. By decision dated
December 3, 2018, OWCP denied her request for reconsideration of the merits of the claim under
5 U.S.C. § 8128(a).
On February 26, 2019 appellant requested reconsideration and submitted a December 28,
2018 report by Dr. Powell. Dr. Powell reiterated his previous opinion and discussion of how
appellant’s repetitive employment duties, including lifting heavy packages out of the back of the
mail truck, wearing the heavy mail satchel on her left shoulder, and walking, bending, lifting, and
twisting to deliver mail caused and aggravated her cervical, lumbar, left shoulder, and right hip
conditions.
By decision dated July 3, 2019, OWCP denied modification of its prior decision.
On July 1, 2020 appellant, through counsel, requested reconsideration and submitted a
January 13, 2020 inclinometry study signed by Dr. Powell.
OWCP also received a January 13, 2020 examination report by Krysta Graham, a certified
nurse practitioner, who recounted that appellant was seen for a reexamination of a work-related
injury to the cervical spine, left shoulder, and lumbar spine. Upon examination of appellant’s
lumbar spine, she reported positive straight leg raise testing on the left and positive Kemps,
Milgrams, and apprehension tests. Ms. Graham diagnosed cervical and lumbar spine sprains,
cervical congenital kyphosis, cervical and lumbar spondylosis, lumbar intervertebral disc disorders
with radiculopathy, left hip contusion, and unspecified rotator cuff sprain.
By decision dated July 8, 2020, OWCP denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a).

4

LEGAL PRECEDENT
Section 8128(a) of FECA6 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.7
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.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.10 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.11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
In her timely request for reconsideration, appellant, through counsel, did not show that
OWCP erroneously applied or interpreted a specific point of law and did not advance a new and
relevant legal argument not previously considered. Thus, she is not entitled to a review of the
merits based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).12

6

Supra note 2.

7
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
8

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).
9

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
10

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

11

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

12

Supra note 8; see K.F., Docket No. 19-1846 (issued November 3, 2020).

5

The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. With her reconsideration request, appellant submitted a
January 13, 2020 inclinometry study signed by Dr. Powell. The study did not include any
discussion of whether appellant’s diagnosed conditions were causally related to the accepted
factors of her employment. The Board notes that the submission of evidence that does not address
the particular issue involved does not constitute a basis for reopening a case.13 Similarly, the
January 13, 2020 examination report by Ms. Graham is irrelevant to appellant’s case as nurse
practitioners are not considered physicians as defined by FECA and their opinion, therefore, is of
no probative value.14 As appellant failed to provide relevant and pertinent new evidence related
to the underlying issue of causal relationship, she was not entitled to a merit review based on the
third requirement under 20 C.F.R. § 10.606(b)(3).15
Accordingly, the Board finds that appellant has not met any of the requirements
enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied her request for reconsideration without reopening the case for review on the merits.16
On appeal counsel argues that OWCP’s July 8, 2020 decision is contrary to fact and law.
As stated above, the evidence appellant submitted on reconsideration has not met the requirements
to reopen her case for a review of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).

13
D.C., Docket No. 19-0873 (issued January 27, 2020); E.G., Docket No. 18-0270 (issued August 24 2018);
Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
14

5 U.S.C. § 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 defined
by State law. 20 C.F.R. § 10.5(t). See also 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); W.Z.,
Docket No. 20-0191 (issued July 31, 2020) (medical reports signed solely by nurse practitioners or physical therapists
are of no probative value as such health care providers are not considered “physician[s]” as defined under FECA and
are, therefore, not competent to provide medical opinions).
15

Supra note 8.

16
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Haven, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0162
Issued: May 27, 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 October 28, 2019 appellant filed a timely appeal from a May 8, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated October 23, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 8, 2018 appellant, then a 53-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, at 10:00 a.m. that day, she sustained back and neck injuries when her
1

5 U.S.C. § 8101 et seq.

delivery vehicle was struck from behind by another mail truck, while in the performance of duty.
She stopped work at the time of the injury.
In a development letter dated May 10, 2018, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a May 11, 2018 attending physician’s report (Form CA-20) regarding a May 8, 2018
examination, Dr. Jacqueline Satchell, a Board-certified internist, noted treating appellant for
whiplash and back pain sustained in a May 8, 2018 employment incident. She diagnosed
cervicalgia and lumbago with sciatica. Dr. Satchell checked a box marked “no” indicating that the
diagnosed conditions were not caused or aggravated by the May 8, 2018 employment incident.
She held appellant off work through June 22, 2018 and returned her to light-duty work effective
June 23, 2018.
In a May 11, 2018 duty status report (Form CA-17), Dr. Satchell indicated that appellant
sustained cervicalgia and low back pain due to a May 8, 2018 motor vehicle accident
By decision dated June 22, 2018, OWCP accepted that the May 8, 2018 motor vehicle
accident occurred as alleged, however, it found that the medical evidence of record did not contain
a medical diagnosis due to the accepted employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
Appellant returned to full, unrestricted duty on June 26, 2018.
On July 19, 2018 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. She subsequently submitted additional evidence.
A May 8, 2018 employing establishment accident report confirmed that appellant’s
delivery vehicle was struck from behind by a coworker’s delivery vehicle. Appellant complained
of neck and back pain and requested medical treatment.
Appellant resubmitted the May 11, 2018 Form CA-20.
In a July 12, 2018 witness statement, appellant’s coworker, O.E., confirmed that, on the
morning of May 8, 2018, a coworker struck appellant’s delivery vehicle from behind.
In a July 18, 2018 report, Dr. Satchell opined that appellant sustained a whiplash injury on
May 8, 2018 in a rear-end motor vehicle accident at work She noted that this “accident resulted
in pain and discomfort” to appellant’s neck and low back.
By decision dated October 23, 2018, an OWCP hearing representative affirmed the
June 22, 2018 decision. The hearing representative emphasized that Dr. Satchell’s assessment of
cervicalgia, neck pain, and low back pain were considered descriptions of symptoms rather than a
compensable medical diagnosis.

2

On April 2, 2019 appellant requested reconsideration. In an April 17, 2019 letter, she
contended that there were numerous witnesses to the May 8, 2018 employment incident, and that
Dr. Satchell’s reports were sufficient to establish causal relationship. Appellant submitted
additional evidence.
Appellant provided two hand-drawn, undated diagrams of the accident, and a May 9, 2018
employing establishment accident report. She submitted a different copy of Dr. Satchell’s May 11,
2018 Form CA-20 report noting findings of a whiplash injury with neck and back pain.
Dr. Satchell diagnosed cervicalgia, neck and back pain, and preexisting sprain of ligaments of
cervical spine (ICD code S13.4). She checked a box marked “yes” indicating that appellant’s
lumbago with sciatica (ICD code M54.41) and cervicalgia (M54.2) were causally related to the
May 8, 2018 employment incident. Appellant also resubmitted copies of documents previously of
record.
By decision dated May 8, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.3
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.4 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.5 If the request is timely, but fails to meet at least one

2

Id. at § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
4
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 OWCP’s 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 (iFECS). Id. at Chapter 2.1602.4b.
5

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

3

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.6
In support of a request for reconsideration, a claimant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.7 He or she needs only to submit
relevant, pertinent evidence not previously considered by OWCP.8 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP properly
applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.9
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On April 2, 2019 appellant requested reconsideration of OWCP’s October 23, 2018
decision denying her traumatic injury claim because the medical evidence of record did not contain
a diagnosis causally related to the accepted May 9, 2018 employment incident. In support of her
request, she submitted an updated version of Dr. Satchell’s May 11, 2018 report. The Board finds
that this updated version of the report constitutes relevant and pertinent new evidence in support
of the claim. The updated form included the diagnosis code for a preexisting condition and
checked the box marked “yes” indicating that the employment incident was related to the
diagnosed condition. The Board has held that in support of a request for reconsideration an
appellant is not required to submit all evidence necessary to discharge his or her burden of proof.
He or she need only submit relevant and pertinent evidence not previously considered by OWCP.10
The Board finds that the updated report constitutes pertinent new and relevant evidence, which
directly addresses the issue of causal relationship.11 Appellant’s request for reconsideration
therefore met the third standard for obtaining merit review of her case under 20 C.F.R.
§ 10.606(b)(3). Accordingly, she is entitled to a merit review.
The Board will set aside OWCP’s May 8, 2019 decision denying appellant’s request for
reconsideration and will remand the case for a merit review. After any necessary further
development, OWCP shall issue an appropriate decision.

6

Id. at § 10.608(b); L.C., Docket No. 18-0787 (issued September 26, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
7

See S.F., Docket No. 18-0516 (issued February 21, 2020); P.L., Docket No. 18-1145 (issued January 4, 2019);
Helen E. Tschantz, 39 ECAB 1382 (1988).
8

S.S., Docket No. 18-0647 (issued October 15, 2018).

9

P.L., supra note 7; Annette Louise, 54 ECAB 783 (2003).

10

See T.K., Docket No. 19-1700 (issued April 30, 2020); Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See H.D., Docket No. 18-0865 (issued February 10, 2020).

4

CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 8, 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: May 27, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1593
Issued: April 16, 2019

Case Submitted on the Record

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

JURISDICTION
On August 9, 2018 appellant, through counsel, filed a timely appeal from a February 15,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

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 OWCP’s February 15, 2018 decision was Tuesday,
August 14, 2018. Because using August 15, 2018, 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 filing. The date of
the U.S. Postal Service postmark is August 9, 2018, rendering the appeal timely filed. 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits in this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation and
medical benefits pursuant to 5 U.S.C. § 8123(d) due to her failure to attend a scheduled medical
examination.
FACTUAL HISTORY
On September 13, 2016 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on September 12, 2016, while delivering mail in an apartment
complex she was verbally assaulted and locked in a hallway by a resident who held the door closed
until she was able to call for help and forcibly exit through the door 20 minutes later. She stopped
work on September 14, 2016, and received continuation of pay through October 27, 2016. OWCP
initially accepted her claim for panic disorder without agoraphobia and later expanded appellant’s
claim to include major depressive disorder, single episode, severe without psychotic features.
Effective October 26, 2016, appellant received wage-loss compensation for temporary total
disability on the supplemental rolls.
In a letter dated March 31, 2017, OWCP advised appellant that an appointment had been
scheduled for her in order to assess the nature of her condition, the extent of disability, and
appropriate treatment. It explained that her entitlement to compensation could be suspended,
pursuant to 5 U.S.C. § 8123(d), if she refused to submit to or obstructed an examination. The letter
was also sent to counsel.
By letter dated April 4, 2017, mailed to appellant’s address of record, OWCP referred
appellant to Dr. Richard W. Cohen, a Board-certified psychiatrist, for an appointment on April 17,
2017 at 10:45 a.m. Eastern Standard Time (EST), to determine the nature and extent of any
residuals of her accepted work-related conditions, and whether she was capable of returning to
full-duty employment.
On April 18, 2017 QTC Medical Services, OWCP’s scheduling contractor, advised OWCP
that appellant had not appeared for her scheduled April 17, 2017 examination with Dr. Cohen.
By letter dated April 17, 2017, counsel advised OWCP that he had just received the April 4,
2017 letter which notified appellant of a second opinion examination scheduled for April 17, 2017.
He indicated that appellant had not received the March 31, 2017 letter. Counsel indicated that, as
appellant’s authorized representative, he should have been notified of a referral for a second
opinion examination. He asserted that OWCP provided inadequate notice and therefore requested
that the second opinion examination be rescheduled.

3

5 U.S.C. § 8101 et seq.

2

By letter dated April 18, 2017, OWCP again referred her to Dr. Cohen. The appointment
was scheduled for May 16, 2017 at 10:00 a.m. EST. This notice was also sent to counsel.
By letter dated April 24, 2017, counsel acknowledged receipt of OWCP’s correspondence
dated April 18, 2017. He requested a copy of the letter sent to the physician, the statement of
accepted facts, and the questions for the physician.
On May 12, 2017 QTC Medical Services requested approval from OWCP to reschedule
the May 16, 2017 examination, noting that appellant had called, stating that she had a prior
engagement and would not be attending the May 16, 2017 second opinion examination. OWCP
denied the request, indicating that it had previously rescheduled the examination. It noted that
counsel would be notified of this determination.
On June 1, 2017 QTC Medical Services notified OWCP that appellant had not appeared
for her May 16, 2017 examination.4
On June 8, 2017 OWCP provided notice to appellant that it proposed to suspend her wageloss compensation and medical benefits, pursuant to 5 U.S.C. § 8123(d), based upon her failure to
attend the scheduled May 16, 2017 second opinion examination. It advised her that she had 14
days to provide a written explanation of her reasons, with substantive corroborating evidence, for
failing to attend the scheduled examination. OWCP explained that an employee’s right to
compensation under FECA shall be suspended during the period of a refusal or obstruction of an
examination by a physician.
On June 12, 2017 counsel indicated that appellant had attended the May 16, 2017 second
opinion examination, but that neither Dr. Cohen nor any of his staff were present. Counsel
referenced an attached picture as supportive evidence. The picture, stamped “May 16” and “10:00
a.m.” showed Dr. Cohen’s office door with a hand holding up OWCP’s April 4, 2017 scheduling
letter. He also expressed appellant’s willingness to cooperate, and requested that the appointment
be rescheduled.
In an e-mail dated June 14, 2017, a QTC Medical Services representative indicated that she
spoke with Dr. Cohen on June 14, 2017 and he confirmed that he was in the office on
May 16, 2017. Dr. Cohen noted that he had another patient scheduled for 9:00 a.m. on May 16,
2017, and that appellant was scheduled for 10:00 a.m. He further indicated that he has two
secretaries in the office and emphasized that appellant had not attended her appointment.
By decision dated June 23, 2017, OWCP finalized its proposed suspension of wage-loss
compensation and medical benefits, effective that same date. It noted that it had directed appellant
on April 18, 2017 to report for the examination scheduled on May 16, 2017, but that she had not
attended the examination or shown good cause for her failure to attend the examination. It
indicated that appellant had failed to establish good cause for her failure to attend the scheduled
4

The Board notes that a May 22, 2017 fiscal worksheet shows that appellant was paid wage-loss compensation on
the supplemental rolls through May 12, 2017. On June 7, 2017 appellant filed a claim for compensation (Form CA7) for wage loss for the period May 13 to 26, 2017.

3

examination and therefore, pursuant to 5 U.S.C. § 8123(d), her compensation and medical benefits
were suspended, effective June 23, 2017.
On June 28, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.5
A telephonic hearing was held on December 13, 2017. Counsel explained in an opening
statement that appellant had attended the scheduled examination and, when no one responded to
her knocking on the door, she called Dr. Cohen’s office, but no one answered. He further
explained, and appellant testified, that she took a picture of the door and her appointment letter
with her cellular phone to prove she had attempted to attend the scheduled appointment at the
correct time. Appellant further testified that, when she entered the building in which Dr. Cohen’s
office was located she had to sign in and “be buzzed into the back.” She noted that she had signed
in at 9:40 a.m. Appellant explained that she had arrived early because she had been instructed on
her notice of appointment to arrive at 9:45 a.m. to complete paperwork. She testified that she
waited in a chair for Dr. Cohen to arrive, and that the people in the adjacent office, including
another doctor, saw her waiting.
By decision dated February 15, 2018, an OWCP hearing representative affirmed the
June 23, 2017 decision. He found that no evidence was submitted to establish that appellant had
good cause for not attending the scheduled second opinion examination or that Dr. Cohen’s office
was closed and unoccupied when she was scheduled to attend. The hearing representative noted
that the claimant had not been paid total disability compensation benefits for the period May 13
through June 11, 2017 as a result of the suspension of benefits.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.6 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.7
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.8 Both
FECA and OWCP’s regulations provide that, if an employee refuses to submit to or obstructs a
directed medical examination, his or her right to compensation is suspended until the refusal or
5

On July 24, 2017 appellant filed three additional claims for compensation (Form CA-7) for wage-loss for the
period May 27 to July 7, 2017. On July 25, 2017 OWCP paid appellant wage-loss compensation on the supplemental
rolls for the claimed periods commencing June 12, 2017, which was the date that counsel indicated that appellant
would attend another rescheduled examination. The record reveals that appellant was not paid for the wage loss
claimed for the period May 13 to 26, 2017.
6

5 U.S.C. § 8123.

7

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

8

20 C.F.R. § 10.320.

4

obstruction ceases.9 OWCP’s procedures further provide that, before OWCP may invoke these
provisions, the employee is to be provided a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.10 If good cause for the refusal or obstruction is
not established, entitlement to compensation is suspended in accordance with section 8123(d) of
FECA.11
The determination of the need for an examination, the type of examination, the choice of
locale and the choice of medical examiners are matters within the province and discretion of
OWCP.12 The only limitation on this authority is that of reasonableness.13 OWCP’s regulation,
20 C.F.R. § 10.320, provides that an injured employee “must submit to examination by a qualified
physician as often and at such times and places as [OWCP] considers reasonably necessary.”14
ANALYSIS
The Board finds that OWCP improperly suspended appellant’s wage-loss compensation
and medical benefits pursuant to 5 U.S.C. § 8123(d).
Appellant and counsel were both notified by letter dated April 18, 2017 that she was to
attend a rescheduled second opinion examination with Dr. Cohen on May 16, 2017 at 10:00 a.m.
EST. On June 1, 2017 QTC Medical Services notified OWCP that appellant did not appear for
the scheduled appointment. On June 8, 2017 OWCP informed appellant that it proposed to
suspend her compensation benefits pursuant to 5 U.S.C. § 8123. On June 12, 2017 counsel
contended that appellant had, in fact, attended the May 16, 2017 examination and attached a
photograph, stamped “May 16” and “10:00 a.m.” showed Dr. Cohen’s office door with a hand
holding up OWCP’s April 4, 2017 scheduling letter. Counsel requested that QTC contact
Dr. Cohen’s office to confirm that appellant did not appear at the appointed time. On June 14,
2017 a QTC Medical Services representative indicated that she had spoken with Dr. Cohen and he
confirmed that he was in the office on May 16, 2017, that he had two secretaries in his office, and
that appellant had not appeared for her 10:00 a.m. appointment. By decision dated June 23, 2017,
OWCP finalized its proposed suspension, effective that same date.
During the telephonic hearing appellant testified that she had shown up for the appointment
at 9:40 a.m. on May 16, 2017. She explained that she arrived at the location early at 9:45a.m. so
that she could complete paperwork prior to the examination. Appellant testified that upon her
arrival she had to be buzzed into the building, she was also required to sign in, but that nobody
9

Supra note 7; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
11

Id.

12

James C. Talbert, 42 ECAB 974 (1991).

13

Raymond J. Hubenak, 44 ECAB 395 (1993).

14

Daniel J. Perea, 42 ECAB 214 (1990).

5

answered Dr. Cohen’s door when she knocked following her arrival. She also testified that she
waited in a chair for Dr. Cohen to arrive, that the people in the adjacent office saw her waiting,
and another doctor also saw her waiting. During the hearing counsel explained, and appellant
testified, that she had called Dr. Cohen’s office while she was waiting, that she had called her
counsel’s office to let him know Dr. Cohen was not in his office, and that she also took a picture
of the door and her appointment letter with her cellular phone to prove she had attempted to attend
the scheduled appointment at the correct time.
The Board finds that the evidence of record establishes that appellant has shown good cause
for not completing the scheduled second opinion examination with Dr. Cohen on May 16, 2017,
as required. The evidence of record establishes that she appeared for the examination, as
scheduled, but that neither Dr. Cohen nor his staff were present to let her in the physician’s office
at the time of the scheduled examination. Her hearing testimony is unrefuted and contains
persuasive evidence of her actions on the morning of May 16, 2017.
OWCP may only invoke the sanction provision of 5 U.S.C. § 8123(d) if good cause for the
refusal or obstruction is not established. As appellant established that she attended and attempted
to participate in the May 16, 2017 second opinion examination she has established good cause.
Therefore, the Board finds that OWCP acted unreasonably and therefore abused its discretion in
suspending her wage-loss compensation and medical benefits for the period May 13 through
June 11, 2017.15
CONCLUSION
The Board finds that OWCP improperly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d).

15

Andrew Sturzione, Sr., Docket No. 01-0836 (issued August 13, 2002).

6

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 16, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Anthony, TX, Employer
__________________________________________

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

Docket No. 10-1493
Issued: March 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 11, 2010 appellant filed a timely appeal from a March 22, 2010 merit decision of
the Office of Workers’ Compensation Programs regarding his schedule award claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 10 percent total impairment of the right
lower extremity and more than 6 percent total impairment of the left lower extremity, for which
he received schedule awards.
FACTUAL HISTORY
This case had previously been before the Board. On May 1, 1990 appellant, then a
42-year-old food service cook foreman, injured his lower back when, during the course of
training for the Special Operations and Response Team, he fell off the rope he was climbing at
the obstacle course and landed on his back. The Office accepted the claim for thoracic and

lumbar strains with radiculopathy. On April 4, 2001 appellant filed a claim for a schedule
award.1
In a July 23, 2003 decision, the Board affirmed a September 2, 2002 Office decision
which awarded appellant a two percent schedule award for a permanent impairment to his right
lower extremity.2 The Office found the Office medical adviser, who based his impairment
opinion on the findings of the Office referral physician Dr. Randy J. Pollet, a Board-certified
orthopedic specialist, properly utilized the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides) (hereinafter).3
Appellant later received several other schedule awards due to his accepted conditions. In
a June 28, 2007 decision, the Office advised that he had received schedule awards totaling nine
percent impairment to the right leg and six percent impairment to the left leg. In August 27 and
November 16, 2007 decisions, it found that the medical evidence did not support increased
impairment for the right leg.
In an April 22, 2008 medical report, Dr. Sergio B. Pacheco, a neurologist, noted the
history of injury and appellant’s complaints with regard to chronic and acute lumbosacral pains
associated with intermittent radicular sciatic type of pain entering the posterior aspect of both
lower extremities following mainly the S1 nerve root and intermittent recurrent leg cramps and
paresthesias. He reported subjective decreased pinprick sensation of S1 greater on the right than
the left with no leg weakness or atrophy.
On September 8, 2008 appellant filed a Form CA-7 and requested an additional schedule
award. In a September 3, 2008 report, Dr. Alvaro A. Hernandez, a Board-certified orthopedic
surgeon and appellant’s attending physician, opined that appellant had 16 percent impairment of
the right leg and 8 percent impairment of the left leg based on the fifth edition of the A.M.A.,
Guides. He enclosed a copy of an August 18, 2008 report by Louis Zuniga, physical therapist,
upon which his impairment evaluation was based. In an August 18, 2008 report, Mr. Zuniga
noted appellant’s diagnoses and indicated that appellant’s August 14, 2008 examination findings
revealed leg atrophy and motor and sensory deficits of L5 and S1 nerve roots. He set forth his
impairment calculations under the fifth edition of the A.M.A., Guides.
In a December 1, 2008 report, an Office medical adviser found Dr. Hernandez’
impairment findings were not probative for a schedule award as his medical findings conflicted
with those of Dr. Pacheco. He noted Dr. Hernandez reported leg weakness while Dr. Pacheco
did not. The Office medical adviser recommended appellant’s referral to another specialist. He

1

Appellant’s initial claim for a schedule award, filed on March 4, 1996, was denied in a June 7, 1996 Office
decision. In an August 23, 1999 decision, the Board affirmed an October 24, 1997 Office decision which found
appellant’s September 3, 1997 reconsideration request was untimely filed and insufficient to show clear evidence of
error of its June 7, 1996 decision. Docket No. 98-381 (issued August 23, 1999).
2

Docket No. 03-571 (issued July 23, 2003), petition for recon denied (issue October 15, 2003).

3

On March 15, 2004 the Board issued an Order Dismissing Appeal and Dismissing Petition for Reconsideration.
Docket Nos. 04-301 & 03-571 (issued March 15, 2004).

2

also advised that while appellant may have symptoms in the feet secondary to a radiculopathy,
this was included in the accepted lumbar disorder.
The Office referred appellant, along with a statement of accepted facts, list of questions
and medical record, to Dr. Donald M. Mauldin, a Board-certified orthopedic surgeon, for a
second opinion. In a January 9, 2009 report, Dr. Mauldin set forth his examination findings and
diagnosed chronic lumbar radicular syndrome and chronic L5-S1 bilateral lumbar radiculopathy.
He cited to various tables in the fifth edition of the A.M.A., Guides and opined that appellant had
10 percent right lower extremity impairment for sensory and motor deficits resulting from the L5
and S1 radiculopathy and 4 percent impairment to the left lower extremity based on L5 sensory
and motor loss.
In a February 10, 2009 report, the Office medical adviser reviewed the medical record
and used Dr. Mauldin’s January 9, 2009 findings and the fifth edition of the A.M.A., Guides to
find that appellant had 10 percent right leg impairment and 4 percent left leg impairment based
on L5 and S1 nerve root abnormalities. He opined that appellant had no additional impairment
beyond his previously awarded 11 percent right lower extremity impairment and no additional
impairment over his previously awarded 6 percent left lower extremity impairment.
By decision dated March 3, 2009, the Office denied appellant’s claim for an additional
schedule award.
On April 27, 2009 appellant requested reconsideration. By decision dated September 4,
2009, the Office vacated the March 3, 2009 decision in part to reflect additional entitlement to
one percent permanent impairment of the right lower extremity. It advised it was erroneously
noted that appellant had 11 percent right leg impairment as he was only awarded and paid for
9 percent. The Office found that, medical evidence of record reflected 10 percent right lower
extremity impairment and since he had previously received 9 percent impairment, he was entitled
to an additional 1 percent right leg impairment. It further affirmed the denial of additional
impairment to the left leg. By decision dated September 8, 2009, the Office awarded appellant
an additional 1 percent impairment to the right lower extremity, for a total of 10 percent
impairment.
On November 10, 2009 appellant requested reconsideration and contended that he had
previously submitted a February 19, 2009 supplemental report from Dr. Pacheco wherein the
physician indicated that there was weakness in both legs. He thus contended that Dr. Hernandez’
impairment rating of 15 percent to the right lower extremity was probative for a schedule award
determination as the fact that there was weakness in both legs is corroborated by Dr. Pacheco.
Appellant further requested that the Office expand his case to include the condition of
degenerative disc disease.
In support of reconsideration request, appellant submitted copies of a July 23, 2009
magnetic resonance imaging scan, an August 5, 2009 electromyogram/nerve conduction study
and Dr. Pacheco’s February 19, 2009 report, all previously of record. Dr. Pacheco’s report noted
the presence of progressive bilateral leg weakness associated with bilateral radiculopathy. New
evidence included: diagnostic testing dated September 16, 2009; an October 21, 2009 progress
note from Dr. Hernandez; and a September 24, 2009 report from Dr. Pacheco.

3

In an October 5, 2009 report, Dr. Michael J. Mrochek, a Board-certified physiatrist, noted
the history of injury and his review of the medical evidence. He reported a decreased sensation
following an S1 distribution on the right and weakness in right ankle plantar flexion with ability
to walk on appellant’s heels. No atrophy was seen in the L4 and L5 muscle groups and straight
leg raise was negative with negative hip range of motion. A diagnosis of sprain lumbar region
and lumbosacral neuritis was provided. Citing to various tables under the fifth edition of the
A.M.A., Guides, Dr. Mrochek opined that appellant had 15 percent impairment of the right lower
extremity due to the S1 radiculopathy.
In a December 28, 2009 letter, the Office advised appellant that effective May 1, 2009
permanent impairment determinations were being made in accordance to the sixth edition of the
A.M.A., Guides. Appellant was requested to submit an impairment rating in accordance with the
sixth edition of the A.M.A., Guides within 30 days.
The Office received reports dated January 19 and February 24, 2010 from Dr. Hernandez.
In the January 19, 2010 report, Dr. Hernandez indicated that appellant had weakness in the left
peroneal which was consistent with L5-S1 radiculopathy. Citing to various tables in the fifth
edition of the A.M.A., Guides, he opined that appellant had 15 percent impairment of the right
lower extremity and 8 percent impairment of the left lower extremity. Dr. Hernandez further
stated maximum medical improvement was reached on January 11, 2010. He noted that
appellant underwent an impairment evaluation on January 11, 2010. A copy of the January 11,
2010 impairment evaluation by Mr. Zuniga, physical therapist, was also provided. Mr. Zuniga
opined that appellant had 15 percent impairment for the right lower extremity and 8 percent
impairment for the left lower extremity for both sensory and motor loss under the fifth edition of
the A.M.A., Guides.
By decision dated March 22, 2010, the Office denied modification of its prior decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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. However, the Act does not specify the manner in which the percentage of loss shall be
determined. 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. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6 Effective

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

4

May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.7
After obtaining all necessary medical evidence, the file should be routed to the Office
medical adviser for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified.8
ANALYSIS
Office procedures provide that, effective May 1, 2009, all schedule awards are to be
calculated under the sixth edition of the A.M.A., Guides. The Office’s FECA Bulletin No. 09-03
clarifies that any recalculations of previous awards which result from hearings or reconsideration
decisions issued on or after May 1, 2009, should be based on the sixth edition of the A.M.A.,
Guides. The Bulletin notes, a claimant who has received a schedule award calculated under a
previous edition and who claims an increased award, will receive a calculation according to the
sixth edition for any decision issued on or after May 1, 2009.9
The Board finds that the Office did not properly develop the medical evidence with
regard to appellant’s entitlement to an additional schedule award. In support of his
November 10, 2009 reconsideration request, appellant included an October 5, 2009 report from
Dr. Mrochek and a January 19, 2010 report from Dr. Hernandez. Both physicians were familiar
with appellant’s history, provided examination findings and determined an impairment rating.
These detailed reports included a history of clinical presentation, physical findings, functional
history, clinical studies or objective tests and analysis of findings. Dr. Mrochek determined that
appellant had 15 percent impairment of the right lower extremity due to S1 radiculopathy.
Dr. Hernandez determined that appellant had 15 percent impairment of the right lower extremity
and 8 percent impairment of the left lower extremity due to sensory and motor loss resulting
from the L5-S1 radiculopathy. Both physicians based their impairment rating on the fifth edition
of the A.M.A., Guides. Although these physicians did not reference the current edition of the
A.M.A., Guides, they offered findings in support of their impairment ratings. The Office did not
request that an Office medical adviser consider whether their findings supported any greater
impairment under the sixth edition of the A.M.A., Guides than that which appellant was
previously awarded. Prior to denying the claim, pursuant to Office procedures, these reports,
along with appellant’s file, should then have been referred to the Office medical adviser for an
opinion concerning the nature and percentage of impairment under the sixth edition of the
A.M.A., Guides.10

7

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
9

Supra note 7.

10

Supra note 8.

5

The Board will remand the case to the Office to undertake additional development of the
medical evidence to appropriately determine if appellant has an additional impairment of the legs
for schedule award purposes. On remand, the Office should develop the medical evidence as
appropriate to determine the extent of permanent impairment due to appellant’s accepted
employment injury under the sixth edition of the A.M.A., Guides.
CONCLUSION
The Board finds that the case is not in posture for decision. The Board will set aside the
Office decision and remand the case for further development consistent with the findings herein.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: March 22, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF COMMERCE, ECONOMICS
& STATISTICS ADMINISTRATION, CENSUS
BUREAU, Bowling Green, KY, Employer
__________________________________________

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

Docket No. 14-1212
Issued: November 19, 2014

Case Submitted on the Record

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

JURISDICTION
On April 30, 2014 appellant, through counsel, filed a timely appeal from a March 26,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) affirming the
prior termination of her wage-loss and medical compensation benefits. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof in terminating appellant’s
compensation benefits effective September 22, 2013 on the grounds that an accepted lumbar
contusion, lumbar sprain, intervertebral disc disorder and aggravation of multilevel lumbar
degenerative disc disease ceased without residuals.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel contends that OWCP’s March 26, 2014 decision is “[c]ontrary to law
and fact.”
FACTUAL HISTORY
OWCP accepted that on July 9, 2010 appellant, then a 35-year-old census enumerator,
sustained a lumbar contusion, lumbar sprain, intervertebral disc disorder and temporary
aggravation of degenerative lumbar disc disease when she slipped and fell on wet steps, striking
her neck and back. Appellant stopped work on the date of injury and did not return. She
received wage-loss compensation for total disability beginning on August 24, 2010. Appellant
was separated from the employing establishment on August 28, 2010 due to a lack of available
work.
Dr. David P. Rouben, an attending Board-certified orthopedic surgeon, followed
appellant beginning on August 11, 2010, noting her history of two prior lumbar surgeries, the
latest an L2-3 fusion performed in 2002. He found appellant totally disabled for work. On
September 22, 2010 Dr. Rouben opined that appellant’s condition remained unchanged from
2002. He noted that the July 9, 2010 work incident may have exacerbated degenerative lumbar
disc disease, but that her symptoms were somewhat inconsistent with objective findings.
Dr. Kyaw J. Htin, an attending physician Board-certified in anesthesiology and pain
medicine, provided periodic reports from January 25, 2011 to May 21, 2013 prescribing opioid
medications. In an April 28, 2011 report, he advised that appellant’s soft tissue injuries had
resolved but that she required a repeat lumbar fusion.
In reports from April 28 to October 5, 2011, Dr. Rouben opined that appellant required a
repeat lumbar fusion to address progressive deterioration of the lumbar spine with radiculopathy
at all segments from L3 to S1.2 On October 18, 2011 Dr. Rouben performed an anterior
interbody fusion at L3-4 and L4-5 with cage fixation and autologous bone graft, approved by
OWCP. He submitted a December 8, 2011 report noting that appellant’s symptoms improved
after surgery. On March 26, 2012 Dr. Rouben noted that appellant remained disabled for work
as a deep venous thrombosis and pulmonary embolism prevented her from participating in
physical therapy.3
On June 25, 2012 OWCP obtained a second opinion from Dr. Bryant Bloss, a Boardcertified orthopedic surgeon, who reviewed the medical record and a statement of accepted facts.
2

On June 21, 2011 OWCP obtained a second opinion from Dr. Stanley W. Collis, a Board-certified orthopedic
surgeon, who opined that the accepted injuries and temporary aggravation of degenerative lumbar disc disease had
ceased without residuals. Following additional development and review by an OWCP medical adviser, OWCP
approved Dr. Rouben’s request to authorize a repeat lumbar interbody fusion.
3

Appellant also provided reports dated from January to March 2012 by a nurse practitioner. However, a nurse
practitioner is not competent to render a medical opinion under FECA. Therefore, these reports are of no probative
value. D.N., Docket No. 13-1534 (issued March 12, 2014); see also David P. Sawchuk, 57 ECAB 316 (2006) (lay
individuals such as physician assistants, nurses and physical therapists are not competent to render a medical opinion
under FECA. See also 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law).

2

On examination, Dr. Bloss found that appellant’s L2-3, L3-4 and L4-5 fusions were stable based
on x-ray and clinical examination. He noted decreased reflexes in the lower extremities and
reduced lumbar motion consistent with appellant’s surgical history. Appellant used a walker to
ambulate for significant distances. Dr. Bloss opined that the accepted temporary aggravation of
degenerative lumbar disc disease had ceased. He recommended a work hardening program to
address strength and range of motion issues. In an August 12, 2012 supplemental report,
Dr. Bloss opined that the October 2011 fusion resolved the accepted conditions by stabilizing the
lumbar spine and returning it to baseline.
In a December 7, 2012 report, Dr. Rouben reviewed Dr. Bloss’ opinions and concurred
that appellant’s condition had returned to preinjury baseline status. He opined that “the only
impediment for [appellant] to have reached maximum medical benefit improvement is
documented, substantiated, witnessed cooperation and participation and completion of a work
hardening program as suggested by Dr. Bloss.” On January 2, 2013 Dr. Rouben noted that
appellant fell in December 2012, resulting in left trochanteric bursitis and a concussion.4
By notice dated July 9, 2013, OWCP advised appellant that it proposed to terminate her
wage-loss and medical compensation benefits because the accepted injury had ceased without
residuals, based on Dr. Bloss’ opinion as the weight of the medical evidence.
In response, appellant submitted a July 17, 2013 report from Dr. Rouben stating that
while appellant’s condition improved after the October 2011 repeat lumbar fusion, her symptoms
still prevented her from returning to work. Dr. Rouben noted that one of the pedicle screws may
have loosened.
By decision dated September 12, 2013, OWCP terminated appellant’s wage-loss and
medical benefits effective September 22, 2013, based on Dr. Bloss’ opinion as the weight of the
medical evidence.
In an October 2, 2013 letter postmarked October 11, 2013, appellant requested a review
of the written record, asserting that the termination was erroneous. She contended that her
physicians opined that the accepted injuries required additional testing and treatment. Appellant
submitted medication management reports from Dr. Htin dated from July 23 to
November 18, 2013. In a January 23, 2014 report, Dr. Htin related appellant’s account that
Dr. Rouben was contemplating additional surgery as one of the lower level fusion screws had
loosened.
By decision dated and finalized March 26, 2014, an OWCP hearing representative
affirmed OWCP’s September 12, 2013 decision, finding that the additional evidence submitted
was insufficient to outweigh Dr. Bloss’ opinion that the accepted injuries resolved without
residuals.

4

On March 22, 2013 the employing establishment offered appellant a modified position within her medical
limitations. Appellant refused the position, asserting that she remained totally disabled for work.

3

LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6
ANALYSIS
OWCP accepted that appellant sustained a lumbar contusion, lumbar sprain,
intervertebral disc disorder and temporary aggravation of degenerative lumbar disc disease. She
stopped work on July 9, 2010 and did not return. Appellant received compensation for total
disability.
Dr. Rouben, an attending Board-certified orthopedic surgeon, found appellant totally
disabled for work from August 11, 2010 onward. Dr. Htin, an attending Board-certified
anesthesiologist, provided pain management from January 2011 onward, noting that appellant’s
soft tissue injuries had resolved by April 28, 2011. On October 18, 2011, he performed a lumbar
interbody fusion at L3-4 and L4-5, approved by OWCP.
Dr. Bloss, a Board-certified orthopedic surgeon and second opinion physician, provided
June 25 and August 12, 2012 reports explaining that the accepted lumbar injuries and temporary
aggravation of degenerative lumbar disc disease had ceased without residuals as the October 18,
2011 fusion stabilized the lumbar spine and returned appellant’s condition to baseline.
Dr. Rouben agreed with Dr. Bloss’ assessment on December 7, 2012, noting that appellant would
attain maximum medical improvement if she cooperated with physical therapy. He noted in
January 2 and July 17, 2013 reports that appellant had fallen in December 2012, but did not
opine that the fall was in any way related to the accepted injuries or their sequelae. While he
indicated that one of the pedicle screws may have loosened, he offered no definite etiology for
this finding. Therefore, OWCP terminated appellant’s wage-loss and medical benefits effective
September 22, 2013, based on Dr. Bloss’ reports as the weight of the medical evidence.
Pursuant to an October 11, 2013 request for a review of the written record, appellant
submitted additional pain management notes from Dr. Htin dated from July 2013 to
January 2014. While Dr. Htin related appellant’s account that Dr. Rouben wanted to reoperate
due to a possible loose pedicle screw, he did not provide his own medical opinion on this issue or
otherwise verify appellant’s remarks. Therefore, OWCP issued its March 26, 2014 decision
affirming the September 22, 2013 termination of appellant’s wage-loss and medical
compensation benefits.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Bloss, who based his opinion on the complete medical record, a statement of accepted facts
5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

4

and a thorough clinical examination. Dr. Rouben concurred with Dr. Bloss’ opinion that the
accepted conditions had ceased. Therefore, OWCP’s March 26, 2014 decision affirming the
prior termination is appropriate under the law and facts of the case.7
On appeal, counsel contends that OWCP’s March 26, 2014 decision is “contrary to law
and fact.” As stated above, Dr. Bloss provided well-reasoned reports explaining the medical
reasons that appellant no longer had residuals of the accepted lumbar injuries as of
September 22, 2013. Furthermore, Dr. Rouben agreed with Dr. Bloss’ opinion.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s
compensation benefits effective September 22, 2013 on the grounds that an accepted lumbar
sprain, lumbar contusion, intervertebral disc disorder and aggravation of multilevel lumbar
degenerative disc disease ceased without residuals.

7

After termination or modification of benefits, clearly warranted on the basis of the evidence, the burden for
reinstating compensation benefits shifts to the claimant. The Board notes that the medical evidence submitted in
support of appellant’s request for a review of the written record does not address whether appellant was disabled for
work on and after September 22, 2013 due to the accepted injuries. Dr. Htin’s medication management notes do not
address the critical issue of any causal relationship between the accepted injuries and appellant’s condition on and
after September 22, 2013. In order to prevail, the claimant must establish by the weight of reliable, probative and
substantial evidence that he or she had an employment-related disability that continued after termination of
compensation benefits See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB
1101 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2014 is affirmed.
Issued: November 19, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6