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

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

Docket No. 10-862
Issued: December 23, 2010

Case Submitted on the Record

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

JURISDICTION
On February 17, 2010 appellant, through her attorney, filed a timely appeal from a
November 18, 2009 merit decision on the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant was entitled to receive compensation for her
permanent impairment at the augmented rate; and (2) whether appellant had more than
12 percent impairment of her right lower extremity and 5 percent impairment of her left lower
extremity, for which she has received schedule awards.
On appeal, appellant’s attorney contended that there was an unresolved conflict of
medical opinion evidence regarding the extent of the permanent impairment of appellant’s right
and left lower extremities and that she was entitled to receive compensation for her schedule
award at the augmented rate.

FACTUAL HISTORY
On January 23, 1989 appellant, then a 45-year-old clerk, fell on her knees when she
tripped over loose rubber molding. The Office accepted her claim for right knee sprain on
February 16, 1989. Appellant received compensation at the augmented rate based on her
marriage. She filed notices of recurrence of disability on June 29, 1989 and June 25, 1995,
which the Office accepted as well as the additional condition of chondromalacia patella.
Appellant underwent an arthroscopic patellar chondroplasty and partial synovectomy on
May 17, 1993. On November 7, 1995 the Office granted her a schedule award for 12 percent
impairment of the right leg. It accepted that appellant sustained a recurrence of disability on
July 19, 2001. In a letter dated September 7, 2005, the Office accepted patellofemoral syndrome
of the left knee.
In a report dated February 3, 2009, Dr. Arthur Becan, an orthopedic surgeon, described
appellant’s history of injury on January 23, 1989 and the May 17, 1993 surgery. He stated that
she had right hip spur.1 Dr. Becan provided physical findings relating to appellant’s right hip
and right and left knees. He found a mild effusion of the right knee with peripatellar tenderness
as well as tenderness along the medial and lateral patellar facet. Appellant had pain in
patellofemoral compression and tenderness over the medial joint line. Dr. Becan found
extension of 120 degrees. In regard to appellant’s left knee, he found moderate effusion with
paripatellar, medial and lateral patellar tenderness as well as tenderness over the medial and
lateral joint lines. Appellant demonstrated extension of 110 degrees. Dr. Becan found loss of
muscle strength in both quadriceps. He applied the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides) to find that
she had 25 percent impairment due to loss of range of motion of the right hip3 as well as
3 percent pain-related impairment4 or a total 28 percent impairment of the right lower extremity.
Dr. Becan found that appellant had motor strength deficit in the left quadriceps of 12 percent,5
3 percent impairment due to pain-related impairment6 or total left lower extremity impairment of
15 percent. He concluded that she reached maximum medical improvement (MMI) on
February 3, 2009.
In a letter dated March 23, 2009, appellant’s attorney requested schedule awards based an
additional 16 percent impairment of the right lower extremity and 15 percent impairment of the
left lower extremity.

1

The Office also accepted right hip osteoarthritis and found 15 percent impairment of her right lower extremity
due to this accepted condition in a separate claim. The district medical adviser did not address appellant’s right knee
condition in formulating his impairment rating of the right lower extremity on April 2, 2009.
2

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

3

Id. at 537, Table 17-9.

4

Id. at 574, Figure 18-1.

5

Id. at 532, Table 17-8.

6

Supra note 4.

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The Office referred the record to an Office medical adviser on April 13, 2009. In a report
dated April 14, 2009, Dr. Morley Slutsky, a Board-certified orthopedic surgeon, noted that
appellant’s diagnosed condition was bilateral knee chondromalacia patella and that she met the
criteria for rating her knees for patellofemoral pain in accordance with Table 17-31 of the
A.M.A., Guides.7 He stated that there was no conclusive evidence of ratable patellofemoral
arthritis in either knee based on x-ray, but referenced the footnote accompanying Table 17-31
which states, “[In an individual with] a history of direct trauma, a complaint of patellofemoral
pain and crepitation on physical examination but without joint space narrowing on x-rays, a …
five percent lower extremity impairment is given.” Dr. Slutsky noted that this rating included
pain so that any additional rating for pain would be duplicative.8 He stated that appellant had
impairment to both knees of five percent. Dr. Slutsky reviewed her quadriceps strength findings
and opined that her significant patellofemoral pain would produce nonvalid strength
measurements. He stated that section 17.2e9 of the A.M.A., Guides established that individuals
inhibited by pain or fear of pain were not good candidates for manual muscle testing.
Dr. Slutsky specifically excluded appellant’s right hip from his impairment evaluation.
By decision dated April 24, 2009, the Office granted appellant a schedule award for five
percent impairment of the left lower extremity. It calculated her compensation based on the
basic rate of 66 2/3 percent on the grounds that there was insufficient evidence of eligible
dependents.
On April 9, 2009 appellant requested a schedule award and listed her spouse as a
dependant. She indicated that her husband lived with her.
Appellant, through her attorney, requested an oral hearing on May 1, 2009 held on
August 20, 2009. Counsel noted that the right leg was not in question. Appellant testified that
she had been married for 45 years and that her husband lived in a healthcare facility since
November 2008 due to a head injury, pneumonia and sepsis. She stated that there was no
divorce contemplated, that her husband was allowed to come home on the weekends and
Wednesdays. The hearing representative stated that she would ensure that the compensation was
changed to the augmented rate. Appellant stated that she continued to perform light-duty work.
Her attorney contended that Dr. Slutsky improperly utilized the diagnostic method rather than the
approach used by Dr. Becan and that more recent x-rays were necessary to determine appellant’s
permanent impairment based on arthritis. Following the oral hearing, appellant resubmitted
Dr. Becan’s February 3, 2009 report applying the sixth edition of the A.M.A., Guides to her
physical findings.
By decision dated November 18, 2009, the hearing representative affirmed the
November 18, 2009 decision. While she discussed appellant’s marriage and her husband’s
illness, the hearing representative did not make a finding on the appropriate compensation rate
for appellant’s schedule award. The hearing representative noted that Dr. Slutsky discussed the
7

Id. at 544, Table 17-31.

8

Id. at 526, Table 17-2.

9

Id. at 531, section 17.2e.

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findings of Dr. Becan’s February 2009 report and offered reasoning for discounting this method
of calculating impairment and found that this report was entitled to the weight of the medical
opinion evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.10
In determining whether a claimant has discharged his or her burden of proof and is
entitled to compensation benefits, the Office is required by its statute and regulations to make
findings of fact. Section 8124(a) of the Act provides: “The [Office] shall determine and make a
finding of fact and make an award for or against payment of compensation....”11 Section 10.126
of Title 20 of the Code of Federal Regulations provides: “The decision shall contain findings of
fact and a statement of reasons.”12
The Office’s procedure manual specifies additional requirements for a final Office
decision denying a claim for benefits. In the subsection titled, “Discussion of Evidence” the
procedure manual states: “[T]he [Office] should identify and discuss all evidence which bears
on the issue at hand ... [and] should summarize the relevant facts and medical opinions....” In the
subsection titled, “Basis for Decision” the procedure manual states: “The reasoning behind the
[Office’s] evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.”13
ANALYSIS -- ISSUE 1
In the April 24, 2009 decision, the Office based appellant’s schedule award on the
statutory 66 2/3 rate because it found insufficient evidence of dependents. Following this
decision, appellant submitted a claim for compensation and listed her husband as a dependent,
providing his date of birth and social security number. At the oral hearing she testified that she
had been married for 45 years. Appellant was still married but did not reside with her husband,
who was currently residing at a convalescence home to recover from serious injuries sustained in
November 2008.

10

Avalon C. Bailey, 56 ECAB 223 (2004).

11

5 U.S.C. § 8124(a).

12

20 C.F.R. § 10.126.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4e and 5a(2)(b)
(March 1997).

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In the November 18, 2009 decision, the hearing representative summarized appellant’s
testimony regarding her marital state and her assertion that her husband continued to be a
dependent. However, she did not make any factual findings regarding this testimony, did not
provide any discussion of the relevance of this testimony or address why she concluded that the
Office’s April 24, 2009 decision should be affirmed in regard to appellant’s compensation rate.
On appeal, appellant’s attorney argued that appellant is entitled to compensation at the
augmented rate. The Board finds that the hearing representative’s decision did not include the
necessary findings of fact or provide the required statement of reasons in regard to the issue of
rate of compensation. Appellant has no basis for interpreting the hearing representative’s
decision to limit her compensation to the basic rate and no guidance to help her to present further
evidence in her quest to establish that her husband is a dependent and she is entitled to
compensation at the augmented rate. Due to these deficiencies the Board finds that this issue is
not in posture for a decision and will be remanded to the Office for further development and an
appropriate decision.14
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Act15 and its implementing regulations16 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
for loss of loss of use, of scheduled members or functions of the body. The Act, however, does
not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the discretion of the Office.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set
of tables so that there may be uniform standards applicable to all claimants. The Office
evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides. Effective February 1, 2001,17 it adopted the fifth edition
of the A.M.A., Guides as for evaluating schedule losses and the Board has concurred in such
adoption.18
In evaluating lower extremity impairments, Chapter 17 of the A.M.A., Guides notes that
alternative methods exist by which impairment may be assessed: anatomic, functional or
diagnosis-based estimates.19 The evaluator is directed to the cross-usage chart at Table 17-2 on
14

Avalon C. Bailey, supra note 10.

15

5 U.S.C. §§ 8101-8193, 8107.

16

20 C.F.R. § 10.404.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (August 2002).
18

For new decisions issued after May 1, 2009 the Office began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, (6th ed., 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
19

A.M.A., Guides 525.

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page 526 to determine when the methods for evaluating impairment may be combined. The
Office’s procedure manual also provides, “Before finalizing any physical impairment calculation
that requires the combination of evaluation factors, the [Office medical adviser] should verify the
appropriateness of the combination in Table 17-2.”20
In determining which evaluation method to follow, the A.M.A., Guides provide the
following instruction:
“The evaluator’s first step is to establish the diagnosis(es) and whether or not the
individual has reached MMI. The next step is to identify each part of the lower
extremity that might possibly warrant an impairment rating (pelvis, hip, thigh,
etc., down to the toes). Figure 17-10 lists potential methods for each lower
extremity part. The evaluator determines whether ROM [range of motion]
impairment or other regional impairments are present for each relevant part and
records the impairment values in the appropriate locations on the worksheet. The
selection of the most specific method(s) and the appropriate combination are later
considerations.
“After all potentially impairment conditions have been identified and the correct
ratings recorded, the evaluator should select the clinically most appropriate (i.e.,
most specific) method(s) and record the estimated impairment for each. The
cross-usage chart (Table 17-2) indicates which methods and resulting impairment
ratings may be combined. It is the responsibility of the evaluating physician to
explain why a particular method(s) to assign the impairment rating was chosen.
When uncertain about which method to choose, the evaluator should calculate the
impairment using different alternatives and choose the method or combination of
methods that gives the most clinically accurate impairment rating.”21
It is well established that preexisting impairments to the scheduled member are to be
included when determining entitlement to a schedule award.22 Office procedures state that any
previous impairment to the member under consideration is included in calculating the percentage
of loss except when the prior impairment is due to a previous work-related injury, in which case
the percentage already paid is subtracted from the total percentage of impairment.23
ANALYSIS -- ISSUE 2
The record establishes that appellant received a schedule award on November 7, 1995 for
12 percent impairment of her right lower extremity due to her accepted right knee condition. She
also received an additional schedule award for 15 percent impairment of her right leg due to a
hip condition accepted in a separate claim. The medical evidence consists of a February 3, 2009
20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

21

A.M.A., Guides 525-26.

22

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

23

Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.808.7a(2) (November 1998).

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report, from Dr. Becan who described appellant’s injuries on January 23, 1989 and the May 17,
1993 surgery. He also discussed her right hip condition and provided impairment ratings. On
physical examination, appellant’s right knee demonstrated a mild effusion and tenderness. She
expressed pain during patellofemoral compression and limited range of motion with extension of
120 degrees. Appellant’s left knee findings included moderate effusion with tenderness and 110
degrees of extension. Dr. Becan determined that she had loss of muscle strength in both
quadriceps. Upon applying the appropriate edition of the A.M.A., Guides he found 28 percent
impairment of the right lower extremity due to permanent changes in the right hip. Dr. Becan
did not include any impairment rating of the right knee in his calculations. In regard to
appellant’s left knee, he found that she had 12 percent impairment due to motor strength deficit
of the left quadriceps24 and 3 percent impairment due to pain-related impairment25 for total left
lower extremity impairment of 15 percent. Dr. Becan concluded that she reached MMI on
February 3, 2009.
This report does not address appellant’s right knee impairment for schedule award
purposes, instead focusing on the impairment of her right hip, which was not accepted under this
claim. Dr. Becan found that she had impairment of the left knee due to motor strength deficits
and pain in accordance with Chapter 18 of the A.M.A., Guides. The fifth edition of the A.M.A.,
Guides allows for an impairment percentage to be increased by up to three percent for pain by
using Chapter 18, which provides a qualitative method for evaluating impairment due to chronic
pain. If an individual appears to have a pain-related impairment that has increased the burden on
his or her condition slightly, the examiner may increase the percentage up to three percent.
However, examiners should not use Chapter 18 to rate pain-related impairments for any
condition that can be adequately rated on the basis of the body and organ impairment systems
given in other chapters of the A.M.A., Guides.26 Dr. Becan did not provide any explanation for
why he believed that the best method to assess appellant’s pain was through the provisions of
Chapter 18 of the A.M.A., Guides. Lacking and discussion, the Board finds that this assessment
was not appropriate.
Dr. Slutsky, the Office medical adviser, reviewed the medical records on April 14, 2009.
Based on the diagnosed condition of bilateral knee chondromalacia patella, appellant’s
impairment was rated through the footnote to Table 17-31 of the A.M.A., Guides.27 As noted,
this footnote states, “[In an individual with] a history of direct trauma, a complaint of
patellofemoral pain and crepitation on physical examination but without joint space narrowing
on x-rays, a … five percent lower extremity impairment is given.” Dr. Slutsky noted that this
rating included pain, so that any additional rating for pain would be duplicative. He found five
percent impairment to both knees. Dr. Slutsky opined that appellant’s patellofemoral pain would
result in invalid strength measurements referencing section 17.2e28 of the A.M.A., Guides. This
24

Supra note 5.

25

Supra note 4.

26

Supra note 20; A.M.A., Guides at 18.3(b); see also Philip Norulak, 55 ECAB 690 (2004).

27

Supra note 7.

28

Supra note 9.

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provision states that manual muscle testing depends on the examinee’s cooperation and that
individuals whose performance is inhibited by pain or the fear of pain are not good candidates of
manual muscle testing and other evaluation methods should be considered. Dr. Slutsky also
declined to consider appellant’s right hip condition in formulating her permanent impairment on
the grounds that this was not an accepted condition.
The Board finds that appellant has not established more than five percent impairment of
her lower extremities. As found by Dr. Slutsky the A.M.A., Guides limit the value of manual
muscle testing when the claimant’s have a painful condition. Appellant has asserted that her
knees are painful and thus supported the conclusion that manual muscle testing is not a valid
method of evaluating her impairment. Dr. Slutsky applied an appropriate provision of the
A.M.A., Guides to evaluate her permanent impairment based on the medical evidence in the
record. As there is no other medical evidence comporting with the standards of the A.M.A.,
Guides, the Office properly found that appellant had no more than five percent impairment.
On appeal, appellant’s attorney alleged that there was an unresolved conflict of medical
opinion evidence. The Board finds that Dr. Becan’s report does not fully comport with the
protocols of the A.M.A., Guides. Dr. Slutsky’s opinion is entitled to the weight of the medical
evidence. It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and the Office may rely on the opinion
of its medical adviser to apply the A.M.A., Guides to the findings of the attending physician.29
CONCLUSION
The Board finds that the case is not in posture for decision regarding the issue of
appellant’s entitlement to augmented compensation and that she has no more than five percent
impairment of each of her lower extremities due to her January 23, 1989 employment injury.

29

Linda Beale, 57 ECAB 429 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the November 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside and remanded in part for a
decision consistent with this decision of the Board.
Issued: December 23, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH FLORIDA/SOUTH GEORGIA
VETERANS HEALTH SYSTEM,
Gainesville, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1553
Issued: April 15, 2021

Case Submitted on the Record

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

JURISDICTION
On August 26, 2020 appellant, through counsel, filed a timely appeal from a February 28,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On December 9, 2015 appellant, then a 43-year-old health technician, filed an occupational
disease claim (Form CA-2) alleging that she developed constant swelling and pain in the tops of
her feet and left knee, as well as pain in her lower back due to factors of her federal employment,
including lifting, pushing and transporting large metal surgical-type instrument carts throughout
the entire hospital using hallways and elevators. She noted that she first became aware of her
condition on November 19, 2015 and realized its relation to her federal employment on
December 7, 2015. Appellant did not stop work.
In a December 15, 2015 development letter, OWCP informed appellant that it had received
no evidence in support of her occupational disease claim. It advised her of the type of factual and
medical evidence necessary to establish her claim and provided a questionnaire for her completion.
In a separate development letter of even date, OWCP requested that the employing establishment
provide additional information regarding appellant’s employment activities, and comments from
a knowledgeable supervisor regarding the accuracy of her statements. It afforded both parties 30
days to respond.
In a December 8, 2015 medical report, Dr. John Charnas, Board-certified in occupational
medicine, evaluated appellant for back pain, left knee pain and tingling over the dorsal surface of
her feet. Appellant reported no single injury and related her symptoms to pushing carts and trays
while wearing steel-toed shoes. She indicated that she had no previous injuries to her back, but
did have a previous injury to her left knee with intermittent flare ups. Dr. Charnas diagnosed a
lumbar spine strain, a left knee strain and bilateral foot discomfort. In a medical note of even date,
he provided that appellant was able to return to work without restrictions the same day.
In medical notes dated December 10 and 15, 2015, Katherine Swan, a registered nurse,
recommended light-duty assignments for appellant to follow.
Appellant, in a December 18, 2015 letter, reviewed her work restrictions suggested by her
physician and sought clarity on what job duties she should be performing while working.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the February 28, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

In a December 29, 2015 medical note, Dr. Michael Macmillan, a Board-certified
orthopedic surgeon, referred appellant to physical therapy for treatment of her radiculopathy,
lumbosacral region.
By a December 30, 2015 letter, the employing establishment controverted appellant’s
claim, contending that she did not provide a rationalized medical opinion diagnosing an injury
causally related to the factors of her federal employment.
In a January 14, 2016 diagnostic report, Dr. David Babin, a Board-certified diagnostic
radiologist, noted that he had performed a magnetic resonance imaging (MRI) scan of appellant
lumbar spine, finding moderate disc degeneration at L5-S1 with factors of combining to result in
bilateral foraminal stenosis and mild L5 root impingement bilaterally.
In a January 20, 2016 medical note, Dr. Macmillan updated appellant’s work restrictions,
suggesting that she not lift or push anything over 20 pounds.
By decision dated March 7, 2016, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that her diagnosed medical
condition was causally related to the accepted factors of her federal employment.
OWCP continued to receive evidence. In a medical report dated December 29, 2015,
Dr. Macmillan evaluated appellant for low back pain and leg pain. He noted that she previously
suffered a low back injury in her 20’s and that she recently began a more physically demanding
job. Appellant informed him that her pain would worsen with prolonged standing or walking. On
evaluation, Dr. Macmillan opined that, with a history of a back injury when she was younger and
now with back and leg pain, she may have spondylolisthesis. He diagnosed lumbosacral region
radiculopathy and referred appellant to undergo an MRI scan and physical therapy.
In physical therapy reports dated January 7 and 20, 2016, James Rylak, a physical therapist,
evaluated appellant for low back pain and reviewed the results of her MRI scan. He recommended
that she continue her current plan of treatment.
Appellant submitted e-mails dated from December 3, 2015 to March 15, 2016 in which she
reported experiencing pain while at work on December 7 and 8, 2015. She also reported
encountering difficulty in speaking with her manager and completing the appropriate workers’
compensation paperwork.
In a March 24, 2016 letter, Dr. Lateya Foxx, a Board-certified neurologist, explained that
she had been treating appellant for bilateral foot paresthesia due to an injury she sustained while
pushing a cart at work on December 7, 2015. Appellant reported that she had immediate difficulty
due to severe pain in her lower back, knee and leg since that time. Dr. Foxx provided that she
performed an electromyography (EMG) study that demonstrated unclear clinical significance in
the left tibial motor nerve and that it otherwise did not support a peripheral neuropathy or lumbar
radiculopathy diagnosis. She also stated that appellant experienced a previous mild back injury at
age 20 and that the symptoms related to the injury had since resolved up to the point of the new
injury. Dr. Foxx opined that her work-related injury was a probable contributor to the majority of
her complaints and did not exclude her prior back injury as another predisposing factor.

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In an April 19, 2016 form report, Dr. Phillip Parr, a Board-certified orthopedic surgeon,
checked a box marked “Yes” to indicate that appellant was unable to perform her job functions
due to her condition and attested that she would be incapacitated from work. He also proposed a
treatment schedule for appellant.
On October 20, 2016 appellant, through counsel, requested reconsideration of OWCP’s
March 7, 2016 decision.
By decision dated January 31, 2017, OWCP denied modification of its March 7, 2016
decision.
On October 6, 2017 appellant, through counsel, requested reconsideration of OWCP’s
January 31, 2017 decision and submitted additional medical evidence.
In a January 25, 2017 medical report, Dr. Foxx recounted her history of treatment for
appellant dating back to February 4, 2016 in relation to her complaints of burning in her feet and
low back pain. She reviewed appellant’s job duties, consisting of prolonged standing and walking,
twisting, lifting, pushing, and pulling extremely large and heavy metal surgical instrument carts
weighing between 200 to 300 pounds. Appellant performed these duties for eight hours a day for
five days a week until she ultimately experienced a “pop” in her back along with pain in her back
and feet. Dr. Foxx observed her diagnostic studies and diagnoses of paresthetic notalgia and
lumbar spondylosis/degenerative disc disease and that appellant did not report any of her
symptoms prior to November 2015. She opined that appellant’s employment duties contributed
to the exacerbation of her lumbar disc degeneration and resulting paresthetic notalgia. Dr. Foxx
explained that repetitive motions, such as prolonged standing, walking, twisting or repetitive heavy
lifting could exacerbate the condition, reasoning that the repetitive activities caused repeated
pressure or forced to be exerted on the lumbar spine over an extended period of time. The repeated
pressures can cause significant added stress on the lumbar spine, which can lead the already
weakened and damaged discs to collapse. The collapsed discs then cause compression or
impingement to the surrounding nerves. The suggested mild nerve root impingement is enough of
an irritant to appellant’s nerves to contribute to the paresthesias in her feet, despite her negative
EMG study. Dr. Foxx also provided that, to the best of her awareness, appellant’s symptoms
related to her previous back injury had resolved prior to her incident at work.
In a July 31, 2017 statement, appellant provided an updated account of the employment
duties believed to have contributed to her diagnosed conditions.
In an October 12, 2017 development letter, OWCP requested additional evidence from
Dr. Foxx regarding her comments concerning appellant’s condition. In response, Dr. Galina
Bogorodskaya, a Board-certified neurologist, opined that appellant’s lumbar condition was more
likely than not a preexisting condition. She reasoned that the nature and extent of the exacerbation
of appellant’s condition was unknown and that there were no objective findings that could be
attributed to her work duties. Dr. Bogorodskaya concluded that it was not possible to differentiate
the exacerbation of her condition from the underlying degenerative disc disease.
By decision dated November 20, 2017, OWCP denied modification of its January 31, 2017
decision.

4

On November 19, 2018 appellant, through counsel, requested reconsideration of OWCP’s
November 20, 2017 decision and submitted additional medical evidence.
In a November 14, 2018 narrative medical report, Dr. Robert Valentine, Board-certified in
pain medicine, reviewed the history of appellant’s employment duties which required prolonged
standing, walking, twisting, lifting, pushing, and transporting heavy instrument carts throughout
the hospital as well as the symptoms she developed in her lower back, knees and feet. He noted
her previous lower back injury she sustained in her 20’s and that her symptoms related to the injury
had since resolved prior to the development of the current symptoms in her lower back in
November 2015. Dr. Valentine also observed a 2011 on-the-job knee injury. On an examination
and review of appellant’s past medical records and diagnostic studies he diagnosed lumbar
degenerative disc disease, lower back pain, lumbar region radiculopathy, bilateral primary
osteoarthritis of the knee and a bilateral knee sprain. Dr. Valentine opined that the performance
of her physically demanding job duties likely caused bilateral knee sprains and an exacerbation of
her lumbar degenerative disc disease. The sudden sharp pain appellant experienced was most
likely caused by the disc protrusion. Dr. Valentine explained that, in cases where a patient has
preexisting degenerative disc disease, repetitive motions such as prolonged standing, walking,
twisting or repetitive heavy lifting may exacerbate the condition. The lumbar spine is repeatedly
stressed over a prolonged period, which results in further degeneration and loss of disc height as
well as compression and impingement of the surrounding nerves. This compression leads to the
development of paresthesias in the feet. Dr. Valentine provided that the repetitive stress placed on
appellant’s spine exacerbated her degenerative disc disease, resulting in the development of
discogenic pain and disc protrusions. She reported a previous lower back injury decades ago, but
stated that her symptoms had since resolved prior to her November 2015 symptoms.4
Dr. Valentine provided that most people appellant’s age have some degenerative changes in the
lumbar spine and that these changes are known to be present without symptoms. Thus, the
presence of preexisting degenerative disc disease is a normal finding and cannot be assumed to be
the cause of her pain unless the person making the assumption is able to explain why the vast
majority of people with degenerative disc changes do not have pain. Making this assumption,
Dr. Valentine opined that the clinical picture was most consistent with an exacerbation of
appellant’s condition due to an overuse through the repetitive activities involved in appellant’s
employment duties. He also noted that the repetitive activities could put added stress on the knees
and that the added stress could cause muscles and tendons to overstretch or to be torn, causing soft
tissue and leading to a sprain. Dr. Valentine opined that this is what most likely occurred with
appellant while performing her repetitive job duties.
By decision dated February 7, 2019, OWCP denied modification of its November 20, 2017
decision.
OWCP continued to receive evidence. In a December 4, 2019 diagnostic report,
Dr. Chintan Desai, a Board-certified radiologist, performed an MRI scan of appellant’s lumbar
spine, finding bilateral facet hypertrophy and disc bulging at L4-5 and L5-S1. In a separate
diagnostic report of even date, he performed an MRI scan of her left knee, finding
tricompartmental osteoarthritic changes, grade 2 chondromalacia in the lateral facet of the patella,
4
Appellant previously filed a traumatic injury claim on November 15, 2005 for a November 12, 2005 lower back
injury under OWCP File No. xxxxxx300. On January 20, 2006 OWCP accepted her claim for a sprain/strain
unspecified and a lumbosacral sprain/strain. It has not administratively combined these claims.

5

a lateral patellar retinaculum sprain, a horizontal tear in the posterior horn of the medial meniscus
and tendinosis/tendinitis involving the quadriceps and patellar tendons. In another December 4,
2019 diagnostic report, Dr. Desai performed an MRI scan of appellant’s right knee, observing
tricompartmental osteoarthritic changes, grade 4 chondromalacia in the lateral facet of the patella,
a lateral patellar retinaculum sprain, joint effusion and subcutaneous tissue edema in the pretibial
region.
On February 7, 2020 appellant, through counsel, requested reconsideration of OWCP’s
February 7, 2019 decision.
In medical reports dated from October 12, 2018 to June 12, 2019, Dr. Valentine diagnosed
a bilateral knee sprain, lumbar region radiculopathy, low back pain, chronic pain due to trauma,
pain in the left ankle and joint of foot, bilateral primary osteoarthritis of the knees, lumbar region
other intervertebral disc degeneration, lumbosacral region other spondylosis, a sprain of the
unspecified collateral ligament of the unspecified knee and lumbar region other intervertebral disc
displacement. He opined that it was likely that appellant’s heavier work contributed to her
condition.
In a January 6, 2020 narrative medical report, Dr. Conrad Tamea, a Board-certified
orthopedic surgeon, detailed the history of appellant’s employment duties and her related
symptoms of pain in her lower back and knees. On examination and review of her previous
medical history he diagnosed lumbar disc disease with radiculopathy, lumbosacral disc stenosis,
bilateral knee derangement, tears in the medial meniscus of the left and right knee, depression
secondary to chronic pain and tricompartmental osteoarthritis of the left and right knee. Dr. Tamea
opined that appellant had a preexisting condition of bilateral osteoarthritis of the knees that was
enhanced by repetitive overuse incurred while performing her work duties. He also reasoned that
her repetitive duties involving pushing a cart were the cause of her tears in the medial and lateral
meniscus, quadriceps tendinitis and patellar tendinitis. Dr. Tamea continued that overcoming the
inertia of a heavy cart repeatedly resulted in her facet arthropathy and disc herniation. He
concluded by finding that appellant’s transfer from a sedentary position to a full-duty job position
is what started the aggravation of her conditions over time.
In a January 28, 2020 medical report, Dr. Xinmin Tang, Board-certified in physical
medicine and rehabilitation, evaluated appellant for pain in her lumbar back, knees, ankles, and
both which began in November 2015 at work. He diagnosed piriformis syndrome, a lesion of the
sciatic nerve in the left lower limb, lumbosacral radiculopathy, a prolapse of the lumbar
intervertebral disc, sacroiliac joint pain, burning feet, numbness of the lower limb, muscle cramps
and lumbar discogenic pain.
By decision dated February 28, 2020, OWCP denied modification of its February 7, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

6

time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of her claim, appellant submitted a January 25, 2017 medical report wherein
Dr. Foxx opined that her employment duties contributed to the exacerbation of her lumbar disc
5

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

Id.; Victor J. Woodhams, supra note 8.

12

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

7

degeneration and resulting paresthetic notalgia. She explained that repetitive motions, such as
prolonged standing, walking, twisting, or repetitive heavy lifting could exacerbate the condition,
reasoning that the repetitive activities caused repeated pressure or forced to be exerted on the
lumbar spine over an extended period of time. The repeated pressures can cause significant added
stress on the lumbar spine, which can lead the already weakened and damaged discs to collapse.
The collapsed discs then cause compression or impingement to the surrounding nerves. The
suggested mild nerve root impingement is enough of an irritant to appellant’s nerves to contribute
to the paresthesias in her feet, despite her negative EMG study. Dr. Foxx also provided that, to
the best of her awareness, appellant’s symptoms related to her previous back injury had resolved
prior to her incident at work.
Additionally, appellant submitted a November 14, 2018 narrative medical report in which
Dr. Valentine observed her previous back injuries, reviewed her medical history and diagnosed
lumbar degenerative disc disease, lower back pain, lumbar region radiculopathy, bilateral primary
osteoarthritis of the knee and a bilateral knee sprain. He opined that the performance of her
physically demanding job duties likely caused bilateral knee sprains and an exacerbation of her
lumbar degenerative disc disease and discussed the effects of repetitive stress on the lumbar spine
as it related to appellant’s employment duties.
It is well established that, proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is
done.14
Drs. Foxx and Valentine provided affirmative and rationalized opinions on causal
relationship. They each identified employment factors, which appellant consistently claimed had
precipitated her conditions, identified physical findings upon examination and treatment, and
provided a rationalized opinion citing to the facts of the case. Thus, the Board finds that Drs. Foxx
and Valentine’s opinions are sufficient to require further development of the record.15
Further, OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.16 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition of the same part of the body, doubling is required.17 OWCP had previously
accepted that appellant had sustained a sprain/strain unspecified and a lumbosacral sprain/strain
under OWCP File No. xxxxxx300; however, that claim has not been administratively combined
13

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
14

R.B., Docket No. 18-0162 (issued July 24, 2019); K.P., Docket No. 18-0041 (issued May 24, 2019).

15

D.H., Docket No. 19-0633 (issued January 8, 2020); J.J., Docket No. 19-0789 (issued November 22, 2019);
J.G., Docket No. 17-1062 (issued February 13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See also
John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); D.M., Docket No. 19-0340 (issued October 22, 2019).
17

Id.; D.T., Docket No. 19-1375 (issued March 24, 2020); D.L., Docket No. 17-1588 (issued January 28, 2019).

8

with the present file. For a full and fair adjudication, the case must be remanded to OWCP to
administratively combine OWCP File No. xxxxxx300 and the present case file.18
On remand, OWCP shall administratively combine the present case file with OWCP File
No. xxxxxx300 and refer appellant, a statement of accepted facts, and the medical evidence of
record to a physician in the appropriate field of medicine. The chosen physician shall provide a
rationalized opinion addressing whether the diagnosed conditions are causally related to the
accepted factors of appellant’s federal employment. If the physician opines that the diagnosed
conditions are not causally related, he or she must provide rationale explaining how or why the
opinion differs from that of Drs. Foxx and Valentine. Following this and any other further
development as may be deemed necessary, OWCP shall issue a de novo decision on appellant’s
claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 15, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

K.T., Docket No. 17-0432 (issued August 17, 2018).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Power Springs, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0363
Issued: April 16, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 7, 2016 appellant, through counsel, filed a timely appeal from an October 14,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this claim.

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 USC § 8101 et seq.

ISSUE
The issue is whether appellant has established bilateral upper extremity and cervical
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On September 14, 2015 appellant, then a 53-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that her bilateral upper extremity and cervical conditions were
caused or aggravated by the repetitive use of both arms for lifting and reaching in the performance
of her federal employment duties. She noted that she first became aware of her claimed condition
and that it was caused or aggravated by factors of her federal employment in October 2010.
Appellant did not stop work.
In an August 17, 2015 report, Dr. Mark Diehl, an orthopedic surgeon, related that
appellant, an established patient in his medical practice, presented with pain in both shoulders,
worse in the right dominant shoulder, which she indicated had been present for “at least a couple
of years.” He noted that the injections provided only temporary relief. Appellant also complained
of trapezial and parascapular pain with some neck pain, which was also chronic, along with
occasional tingling to the arms and elbow. Dr. Diehl noted that appellant worked as a mail carrier
and did a lot of repetitive lifting at work, especially with her right arm out the mail truck window.
He noted examination and x-ray findings of the shoulder. An assessment of bilateral shoulder
impingement and rotator cuff tendinitis, chronic, recurrent right greater than left, and cervical
degenerative disc disease was provided. Diagnostic testing of the right and left shoulders and the
cervical spine were recommended.
On August 24, 2015 a magnetic resonance imaging (MRI) scan of the right shoulder was
performed. It revealed a complete tear of the supraspinatus tendon with torn fibers retracted to the
mid humeral head and a complete tear of the intraarticular bicep tendon and widening of the
acromioclavicular joint.
In an August 28, 2015 report, Dr. Diehl reviewed the MRI scan and presented examination
findings. He noted that appellant’s cervical spine seemed to be responding to use of the soft collar.
An assessment of complete tear of tendon of rotator cuff and biceps tendon rupture was provided.
Dr. Diehl noted that appellant thought she may have injured the shoulder 15 years ago. He
recommended that appellant undergo surgery and advised that she could continue to work modified
duty as tolerated until the surgery.
A September 4, 2015 work status report from Jennifer Morrison, a certified physician
assistant, noted appellant’s work restrictions.
In a September 4, 2015 note, Dr. Diehl indicated that appellant needed medical clearance,
hematology clearance, and platelet correction before her elective shoulder surgery.
In a September 11, 2015 attending physician’s report (Form CA-20/20a), Dr. Diehl
indicated that appellant reported pain in both shoulders for the past two years. He diagnosed
shoulder impingement bursitis/tendinitis, cervical degenerative disc disease, and bilateral shoulder

2

impingement and rotator cuff tear, chronic and recurrent, right greater than left. Dr. Diehl advised
that appellant had a complete tear of the right rotator cuff tendon and checked a box marked “yes”
indicating that the condition was caused or aggravated by an employment activity. He indicated:
“patient does work as a mail carrier and does a lot of repetitive lifting at work, especially with R
arm out the mail truck window.” Dr. Diehl also noted that appellant was scheduled for surgery.
In a September 11, 2015 duty status report (Form CA-17), he indicated that appellant could return
to full-time work with restrictions.
In an October 21, 2015 development letter, OWCP advised appellant of the deficiencies in
her claim and provided her the opportunity to provide additional factual and medical evidence
needed to establish her claim. This included a questionnaire concerning the job activities appellant
believed contributed to her condition and a narrative medical report from her physician which
contained a detailed description of findings and diagnoses and the physician’s opinion, supported
by a medical explanation, as to how the reported work activities caused or aggravated a medical
condition. Appellant was afforded 30 days to submit the requested information. No further
information was received.
By decision dated January 13, 2016, OWCP noted that appellant had not responded to the
questionnaire requesting additional factual information. It denied the claim as the medical
evidence of record was insufficient to support that appellant’s diagnosed conditions were caused,
aggravated, accelerated, or precipitated by the accepted factors of her federal employment.
On January 29, 2016 OWCP received counsel’s January 27, 2016 request for a telephonic
hearing before an OWCP hearing representative. A telephonic hearing was held on
September 8, 2016. During the hearing, appellant was advised that additional information was
needed regarding the factual component of the claim. She, therefore, described in detail the
employment-related activities she believed to be the cause of her conditions. Appellant also
confirmed that she became aware of her conditions in 2010 and was last exposed to the work
factors believed to be the cause of her condition in September 2015. She denied any preexisting
shoulder conditions and indicated that she did not know or understand why her physician indicated
that she had injured herself 15 years prior. Appellant also denied any other injuries to her
shoulders. She testified that she was still symptomatic, but had not undergone surgery for her
condition as her platelets were too low. Counsel indicated that Dr. Diehl had retired before he
provided an opinion regarding causation and that Dr. Nicholas S. Bonnaig, an orthopedic surgeon,
did not want to get involved with workers’ compensation claims.
In an October 30, 2015 report, Dr. Bonnaig indicated that appellant was formally
Dr. Diehl’s patient, but he was now assuming her care. He noted that her right shoulder rotator
cuff repair surgery was cancelled on the day of the procedure as her platelets were too low.
Dr. Bonnaig indicated that appellant had since received clearance from her hematologist, but
would see her liver doctor next week. He reported that she had a full-thickness rotator cuff tear of
her right shoulder that was caused from her work as a mail carrier. Dr. Bonnaig indicated that
appellant was a surgical candidate and that surgery would be scheduled at appellant’s convenience.
In a February 16, 2016 report, Dr. Bonnaig noted that appellant was a mail carrier who
performed repetitive lifting upwards of 70 pounds. He diagnosed a complete tear of the right
rotator cuff, bicipital tendinitis of the right shoulder, and impingement syndrome of the right

3

shoulder. Dr. Bonnaig opined, “with the repetitive lifting she likely injured her rotator cuff. There
was no specific injury, but lifting upwards of 70 [pounds] repetitively could cause a rotator cuff
tear.” He indicated that shoulder arthroscopy with rotator cuff repair, decompression, and biceps
tenotomy was the best option for treatment. A February 16, 2016 work status report restricted
appellant to light-duty work.
By decision dated October 14, 2016, OWCP’s hearing representative found that the factual
evidence of record was sufficient to support the alleged factors of her federal employment, but
affirmed the denial of the claim as the medical evidence of record was insufficient to establish that
appellant’s diagnosed conditions were caused, aggravated, accelerated, or precipitated by her
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related
to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.7
The weight of medical evidence is determined by its reliability, its probative value, its convincing

3

Id.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

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

7

I.J., 59 ECAB 408 (2008).

4

quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.8
ANALYSIS
The Board finds that appellant has not established that her bilateral upper extremity and
cervical conditions were causally related to the accepted factors of her federal employment.
OWCP accepted that appellant’s job duties involved repetitive duties such as casing mail,
loading the postal truck, and delivering letters and packages. It denied the claim, however, as the
medical evidence of record was insufficient to establish that appellant’s diagnosed conditions were
caused, aggravated, accelerated, or precipitated by her employment duties. The Board finds that
the evidence of record is insufficient to establish causal relationship.9
Reports from Dr. Diehl were received in support of appellant’s claim. In his August 17
and August 28, 2015 reports, Dr. Diehl noted that appellant worked as a mail carrier doing
repetitive lifting, especially with her right arm. A diagnosis of bilateral shoulder impingement and
rotator cuff tendinitis, chronic, recurrent right greater than left, and cervical degenerative disc
disease was provided. However, Dr. Diehl failed to offer a rationalized opinion establishing the
cause of appellant’s condition.10 In his September 11, 2015 attending physician report, Dr. Diehl
diagnosed shoulder impingement bursitis/tendinitis, cervical degenerative disc disease, and
bilateral shoulder impingement and rotator cuff tear, chronic and recurrent, right greater than left.
He advised that appellant had a complete tear of the right rotator cuff tendon and checked the box
marked “yes” indicating that this condition was caused or aggravated by an employment activity.
The Board has long held that when a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, without sufficient rationale, is of diminished probative value
and is insufficient to establish a claim.11 While Dr. Diehl indicated that the “patient does work as
a mail carrier and [did] a lot of repetitive lifting at work, especially with R arm out the mail truck
window,” he failed to provide any medical rationale to support his conclusion on causal
relationship. Medical evidence that states a conclusion, but does not offer any rationalized medical
explanation regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.12 Dr. Diehl noted that appellant performed a lot of repetitive lifting at
work, but he did not specifically describe the process or mechanism by which appellant’s specific

8

James Mack, 43 ECAB 321 (1991).

9

See Robert Broome, 55 ECAB 339 (2004).

10

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
11

See C.D., Docket No. 17-1915 (issued February 21, 2018).

12

J.F., supra note 10; A.D., 58 ECAB 149 (2006).

5

employment duties resulted in her right rotator cuff tendon tear.13 Thus, his reports are insufficient
to establish appellant’s claim.
Medical reports from Dr. Bonnaig were also received. In his October 30, 2015 report,
Dr. Bonnaig noted that appellant had a full-thickness rotator cuff tear of her right shoulder that
was caused by her work as a mail carrier. However, he failed to provide any medical rationale to
support his conclusion on causal relationship.14 A mere conclusory opinion provided by a
physician without the necessary rationale explaining how and why the work factors were sufficient
to result in the diagnosed medical condition is insufficient to meet the claimant’s burden of proof
to establish her claim.15
In his February 16, 2016 report, Dr. Bonnaig diagnosed a complete tear of the right rotator
cuff, bicipital tendinitis of the right shoulder, and impingement syndrome of the right shoulder.
He opined that, with the repetitive lifting, she “likely” injured her rotator cuff and lifting upwards
of 70 [pounds] repetitively “could” cause a rotator cuff tear. This opinion, however, is vague and
speculative in nature and failed to explain the causal relationship between appellant’s work and
her condition.16 Thus, these reports are insufficient to establish appellant’s claim.
The August 24, 2015 MRI scan of the right shoulder is of little probative value as the
diagnostic report did not provide any opinion on the cause of appellant’s condition. The Board
has found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.17
Finally, the September 4, 2015 work status note from Ms. Morrison, a certified physician
assistant, is of no probative value to establish appellant’s claim because physician assistants are
not considered physicians as defined by FECA.18
As noted above, appellant bears the burden of proof to establish the essential elements of
her claim. Because she has failed to provide sufficient medical evidence to establish that her
diagnosed conditions were causally related to factors of her employment, she has failed to meet
her burden of proof to establish her claim.

13

D.B., Docket No. 16-0210 (issued June 14, 2016); M.M., Docket No. 15-0607 (issued May 15, 2015); M.W.,
Docket No. 14-1664 (issued December 5, 2014).
14
15

J.F., supra note 10; A.D., supra note 12.

J.D., Docket No. 14-2061 (issued February 27, 2015).

16

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

17

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

18

5 U.S.C. § 8101(2) provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. L.L., Docket No. 13-0829 (issued August 20, 2013) (a physician assistant is not considered a physician
under FECA). See 5 U.S.C. § 8101(2).

6

On appeal counsel contends that OWCP’s decision is contrary to fact and law. As
discussed above, appellant has not established causal relationship between her diagnosed
conditions and factors of her federal employment.
Appellant may submit new evidence or argument as part of 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 appellant has not met her burden of proof to establish that her bilateral
upper extremity and cervical conditions were causally related to the accepted factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 14, 2016 is affirmed.
Issued: April 16, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
E.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Durham, NC, Employer
__________________________________________

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

Docket No. 15-631
Issued: May 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 26, 2015 appellant filed a timely appeal from a November 6, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
left knee injury in the performance of duty on January 31, 2014.
FACTUAL HISTORY
On September 23, 2014 appellant, then a 57-year-old cook, filed a traumatic injury claim
(Form CA-1) alleging that on January 31, 2014 she sustained a left knee injury when she was
1

5 U.S.C. § 8101 et seq.

putting eggs away, slipped, and tried to catch them. She notified her supervisor on
September 23, 2014. Appellant’s supervisor controverted the claim stating that she failed to
notify the employing establishment within 30 days of the injury.
By letter dated September 30, 2014, OWCP informed appellant that the evidence of
record was insufficient to support her claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
In an October 7, 2014 narrative statement, appellant reported that on January 31, 2014
she was putting eggs away in the refrigerator when they slipped, causing her to jerk her left knee
to catch the eggs. She reported feeling a snapping sensation in her knee. Appellant informed her
supervisor, Ronald Beauchamp, about her injury that same date, and also informed her fellow
coworkers. She reported that she took Aleve for the pain which provided her with temporary
relief. Appellant first sought medical treatment on April 24, 2014 after the pain continued to
worsen over time. Upon receiving medical treatment, she was informed that she sustained a left
knee meniscus tear which required surgery.
Appellant submitted medical reports dated April 29 through October 11, 2014 from
Dr. Rhett Kendall Hallows, a Board-certified orthopedic surgeon, in support of her claim. In his
April 29, 2014 report, Dr. Hallows reported that appellant was referred by her primary physician
for evaluation of left knee pain. Appellant complained of knee pain which had been present for
three months and began during or immediately following a twisting motion to the left knee
where she felt a pop in her knee and related pain. Dr. Hallows reviewed imaging studies of the
left knee, provided findings on physical examination, and diagnosed left knee pain, left medial
meniscus tear, and arthritis of the knee. He recommended a knee cortisone injection and a
magnetic resonance imaging (MRI) scan to further delineate between the meniscus tear and
medial compartment arthritis.
By report dated August 28, 2014, Dr. Hallows provided findings on physical examination
and diagnosed arthritis of the knee and medial meniscus tear, unspecified laterality, subsequent
encounter. He determined that an MRI scan of the right knee was needed to identify the extent
of any meniscal injury as well as cartilage wear.
In a September 19, 2014 report, Dr. Hallows provided findings pertaining to an MRI scan
of the knee and diagnosed arthritis of the knee. He noted that it was unclear if arthroscopy
would be beneficial due to degenerative disease in her medial compartment. Appellant elected to
proceed with partial knee replacement.
Dr. Hallows, in an October 10, 2014 report, provided findings on physical examination
and diagnosed arthritis of the knee and right medial meniscus tear, subsequent encounter. He
opined that appellant likely had underlying arthritis in her knee and the injury did not cause her
arthritis, but likely caused it to become painful for the first time.
By decision dated November 6, 2014, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that her diagnosed conditions were causally related to the
accepted January 31, 2014 employment incident.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.5 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.6
ANALYSIS
OWCP accepted that the January 31, 2014 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused a left knee injury. The Board finds
that she did not submit sufficient medical evidence to support that her left knee injury is causally
related to the January 31, 2014 employment incident.7
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

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

4

Supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

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In an April 29, 2014 report, Dr. Hallows noted complaints of knee pain which had been
present for three months and began during or immediately following a twisting motion to the left
knee where she felt a pop in her knee and related pain. He diagnosed left knee pain, left medial
meniscus tear, and arthritis of the knee. Dr. Hallows’ report lacks a detailed history of the
employment incident. He noted pain for the past three months and a twisting motion to the left
knee yet failed to identify the date of incident or explain where this incident occurred and in
what capacity. The Board has found that a physician must provide a narrative description of the
identified employment incident and a reasoned opinion on whether the employment incident
described caused or contributed to the diagnosed medical condition.8 As Dr. Hallows’ report is
unclear regarding whether this incident occurred at work on January 31, 2014 or at a time which
was unrelated to appellant’s employment, his opinion is of limited probative value.
In his August 28, 2014 report, Dr. Hallows diagnosed arthritis of the knee and medial
meniscus tear, unspecified laterality. He determined that an MRI scan of the right knee was
needed to identify the extent of any meniscal injury and cartilage wear. In a September 19, 2014
report, Dr. Hallows provided findings pertaining to the MRI scan of the knee and diagnosed
arthritis of knee. Appellant elected to proceed with partial knee replacement. In an October 10,
2014 report, Dr. Hallows diagnosed arthritis of the knee and right medial meniscus tear,
subsequent encounter. He opined that appellant likely had underlying arthritis in her knee and
the injury did not cause her arthritis, but likely caused it to become painful for the first time.
The Board finds that the opinion of Dr. Hallows is still not well rationalized. The Board
notes that Dr. Hallows’ April 29, 2014 report established that he examined appellant for left knee
pain. Dr. Hallows’ August 28, 2014 report recommended an MRI scan of the right knee. The
September 19, 2014 report provided diagnostic findings of the knee, yet he failed to specify
whether these findings pertained to the right or left knee. Dr. Hallows further stated that
appellant elected to proceed with partial knee replacement yet also failed to specify whether this
procedure was being performed on the right, left, or both. The Board notes that appellant has
alleged a left knee injury as a result of the January 31, 2014 employment incident. Her narrative
statements do not indicate any complaints related to the right knee. Dr. Hallows’ lack of
distinction is further obscured as his October 10, 2014 medical report provides a diagnosis of
right medial meniscus tear whereas his April 29, 2014 report diagnosed left knee medial
meniscus tear. Moreover, his consistent diagnosis of arthritis of the knee also fails to identify
which knee he is referring to. As such, Dr. Hallows’ findings are speculative and vague, his
reports are insufficient to meet appellant’s burden of proof.9
The Board further notes that Dr. Hallows has indicated that appellant’s arthritis of the
knee and degenerative disease were preexisting conditions. Dr. Hallow failed, however, to
discuss how these preexisting conditions had progressed beyond what might be expected from
the natural progression of that condition.10 Furthermore, as noted above, he diagnosed both left
and right knee medial meniscus tear. As appellant has only alleged a work-related traumatic
8

John W. Montoya, 54 ECAB 306 (2003).

9

C.B., Docket No. 08-1583 (issued December 9, 2008).

10

R.E., Docket No. 14-868 (issued September 24, 2014).

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injury to her left knee, the identical diagnoses are particularly important as they seem to provide
support for a preexisting nonindustrial injury. A well-rationalized opinion is particularly
warranted in this case due to appellant’s history of preexisting conditions.11
Dr. Hallows’ statement that the injury caused appellant’s arthritis to become painful for
the first time is highly speculative as he is attributing symptoms to the employment incident and
not her diagnosed conditions.12 The Board has held that an opinion that a condition is causally
related because the employee was asymptomatic before the injury is insufficient, without
adequate rationale, to establish causal relationship.13 Thus, the Board finds that Dr. Hallows’
statement on causation fails to provide a sufficient explanation as to the mechanism of injury and
did not adequately explain how the January 31, 2014 employment incident would cause or
aggravate her preexisting injuries other than generally noting the development of pain.
Dr. Hallow further failed to explain how the employment incident would cause or aggravate the
left knee medial meniscus tear, a matter of significant importance given the identical diagnosis of
right knee medial meniscus tear. Medical reports without adequate rationale on causal
relationship are of diminished probative value and do not meet an employee’s burden of proof.14
The opinion of a physician supporting causal relationship must rest on a complete factual and
medical background supported by affirmative evidence, address the specific factual and medical
evidence of record, and provide medical rationale explaining the relationship between the
diagnosed condition and the established incident or factor of employment.15 Without explaining
how physiologically the movements involved in the employment incident caused or contributed
to the diagnosed conditions, Dr. Hallows’ opinion is of limited probative value and insufficient
to meet appellant’s burden of proof.16
Appellant’s honest belief that the January 31, 2014 employment incident caused her left
knee injury is not in question, but that belief, however sincerely held, does not constitute the
medical evidence necessary to establish causal relationship. Any medical opinion evidence
appellant may submit to support her claim should reflect a correct history and offer a medically
sound explanation by the physician of how the specific employment incident, in particular
physiologically, caused or aggravated her left knee injury.17 In the instant case, the record lacks
rationalized medical evidence establishing a causal relationship between the January 31, 2014
employment incident and appellant’s left knee injury. Thus, appellant has failed to meet her
burden of proof.

11

K.P., Docket No. 14-1330 (issued October 17, 2014).

12

M.R., Docket No. 14-11 (issued August 27, 2014).

13

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

15

See Lee R. Haywood, 48 ECAB 145 (1996).

16

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
17

T.G., Docket No. 14-751 (issued October 20, 2014).

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Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a left knee injury in the performance of duty on January 31, 2014.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 6, 2014 is affirmed.
Issued: May 18, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
EDITH NOURSE ROGERS MEMORIAL
VETERANS HOSPITAL, Bedford, MA,
Employer
__________________________________________

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

Docket No. 14-2064
Issued: February 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from an April 17, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request,
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 16, 2012 appellant, then a 51-year-old nursing assistant, filed a traumatic injury
claim alleging that she sustained an injury in the performance of duty when she slipped on a wet
floor that day and fell on her right side. She was diagnosed with sciatica and lumbar strain by
Gail Kane, LNP, on June 18, 2012. No physician counter-signed the medical record.
In a decision dated August 13, 2012, OWCP denied appellant’s traumatic injury claim. It
found that she had established that events occurred as described, but she did not submit any
medical evidence containing a medical diagnosis in connection with the events.
Appellant filed a request for reconsideration on June 20, 2013 and she submitted
additional evidence in support of her claim.
OWCP reviewed the merits of appellant’s claim on September 19, 2013 and denied
modification of its prior decision. It found that additional medical was insufficient to cure the
deficiency previously found.
Appellant completed an appeal request form on March 18, 2014. With a mark, she
indicated that she was requesting reconsideration. Appellant signed and dated the form. OWCP
received this request on March 24, 2014.
In a decision dated April 17, 2014, OWCP denied appellant’s reconsideration request
without reopening her case for a review on the merits. It found that her request neither raised
substantive legal questions nor included new and relevant evidence.
On appeal, appellant explains that she has been very sick, disabled, and in acute pain
since 2012. She confesses that she does not know what she was doing with all this paperwork;
she was denied too many times. Appellant hopes that she is doing the right thing this time.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.2 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing, and must set forth arguments and contain evidence that either: (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 be received by OWCP within one year of the date of
OWCP decision for which review is sought.4 A timely request for reconsideration may be
2

Id. at § 8128(a).

3

20 C.F.R. § 10.606.

4

Id. at § 10.607(a).

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granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.5
ANALYSIS
OWCP received appellant’s reconsideration request within one year of the most recent
merit decision in her case, namely, OWCP’s April 17, 2014 decision denying modification of its
earlier decision to deny her traumatic injury claim. Appellant’s request is therefore timely. The
question for determination is whether her request met at least one of the standards for obtaining a
merit review of her case.
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a specific point of law.
Appellant’s appeal request form only showed a mark that she was requesting
reconsideration. The request did not advance a relevant legal argument not previously
considered by OWCP. The request did not contain relevant and pertinent new evidence not
previously considered by OWCP. Such an unsupported request is insufficient, on its face, to
warrant reopening appellant’s case for a review on the merits.
As appellant’s reconsideration request did not meet any of the standards for reopening
her case, the Board finds that OWCP properly denied a merit review. The Board will therefore
affirm OWCP’s April 17, 2014 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request.

5

Id. at § 10.608.

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ORDER
IT IS HEREBY ORDERED THAT the April 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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