United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, NORTH RICHLAND
HILLS POST OFFICE,
North Richland Hills, TX, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1264
Issued: March 9, 2015

Case Submitted on the Record

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

JURISDICTION
On May 7, 2014 appellant, through counsel, filed a timely appeal of a March 12, 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.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
March 19, 2013 because he refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 12, 2014 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal, counsel argues that the offered job was not suitable and, thus, OWCP
improperly terminated appellant’s compensation benefits.
FACTUAL HISTORY
On January 7, 1999 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim alleging that on June 24, 1998 he first became aware of his bilateral thumb
condition. OWCP accepted the claim for temporary aggravation of bilateral thumb arthritis.3
Appellant was placed on the periodic rolls for temporary total disability effective
October 21, 2010.
On February 10, 2011 OWCP referred appellant to Dr. Robert E. Holladay, IV, a second
opinion Board-certified orthopedic surgeon, to determine appellant’s current medical condition
and work capability. In a March 15, 2011 report, Dr. Holladay diagnosed bilateral hand and
thumb osteoarthritis, performed a physical examination, and reviewed the medical evidence,
statement of accepted facts, and list of questions. A physical examinatoin revealed intact
bilateral upper extremity and hand sensation, evidence of osteoarthritic changes in both hands,
restricted right thumb range of motion and no evidence of either hand atrophy. Dr. Holladay also
reported that appellant was able to make a full fist bilaterally, had full extension of digits in right
and left hands, and had some restricted right thumb range of motion. He stated that appellant
was capable of working an eight-hour day with restrictions of limited grasping and carrying mail
with both hands, up to 10 pounds of lifting, and no climbing.
On April 7, 2011 Dr. Luiz C. Toledo, an attending Board-certified orthopedic surgeon,
reviewed and agreed with Dr. Holladay’s opinion that appellant could work an eight-hour day
with restrictions.
On February 1, 2012 Dr. Holladay responded to OWCP’s request for clarification on
appellant’s work restriction regarding grasping and carrying mail. He clarified that appellant
was restricted to eight hours of pushing, pulling, and lifting up to 10 pounds and eight hours of
limited repetitive wrist and elbow movements.
In a February 12, 2012 work capacity evaluation form, Dr. Toledo indicated that
appellant was capable of working an eight-hour day with restrictions of no lifting more than 10
pounds.
On March 29, 2012 Dr. Toledo completed an updated work capacity evaluation form in
which he provided additional work restrictions for appellant. The updated restrictions included
no grasping, fine manipulation, pushing, pulling, or lifting.
On December 12, 2012 OWCP referred appellant to Dr. Bill Alexander, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Toledo,
appellant’s attending physician, and Dr. Holladay, a second opinion physician, on the issue of
appellant’s work restrictions.
3

By decision dated October 26, 2007, OWCP granted appellant a schedule award for an 11 percent permanent
impairment of the right upper extremity.

2

In a January 3, 2013 report, Dr. Alexander, based upon a review of the medical evidence,
statement of accepted facts, and physical examination, diagnosed bilateral thumb arthritis. He
noted the history of appellant’s injury and that he underwent right thumb carpometacarpal joint
arthroplasty in February 2005. A physical examination revealed excellent bilateral hand and
thumb range of motion and mild bilateral arthritic spur formation changes in the distal
interphalangeal joints (DIP). Dr. Alexander stated that he agreed with Dr. Holladay’s work
restrictions. In support of this conclusion, he stated that appellant’s pain complaints did not
correlate with the objective findings and were very subjective. Dr. Alexander also found no
impairment with his ability to perform fine manipulation or grasping. He reviewed the offered
modified carrier position and opined that appellant was capable of performing the duties of the
position. Dr. Alexander indicated that his “restrictions would necessarily be associated with
findings on functional capacity evaluation (FCE).” In an attached work capacity evaluation
form, he provided permanent work restrictions which included one to two hours of operating a
motor vehicle at work; one to two hours operating a motor vehicle to and from work; up to four
hours of pushing/pulling; and up to two hours of lifting no more than 10 pounds. Dr. Alexander
indicated that appellant was capable of bilateral hand manipulation by minimizing frequent use
of his thumbs and he was capable of typing and using the telephone by frequent use of fingertips
only.
On January 7, 2013 an FCE was performed by a licensed physical therapist to determine
appellant’s work capability and work restrictions. Based on the findings from the test,
appellant’s work restrictions were determined to be two hours of sitting, walking, or standing for
up to six to eight hours per day; up to 10 pounds of occasional lifting; occasional
pushing/pulling; and 0 pounds frequent lifting. The test indicated that appellant demonstrated
average gross manipulation and poor fine motor manipulation when using both hands. It noted
that she was capable of frequent bilateral hand manipulation by minimizing thumb use for
pinching and using the middle and index fingers for pinching and that accuracy is lost when
“manipulating very small objects.”
On March 20, 2013 appellant accepted from the employing establishment a limited-duty
job offer as a full-time regular city carrier. The duties of the position included one to two hours
of casing on routes; four to six hours of carry, park, and loop and one to two hours of carry
curbside deliveries. Restrictions of the position were listed as up to eight hours of simple
grasping/fine manipulation; up to eight hours of walking/standing; up to two hours of lifting no
more than 10 pounds; and up to four hours per day of pushing/pulling. Appellant started work
on March 27, 2013 and stopped on March 29, 2013.
On April 1, 2013 OWCP determined that the March 20, 2013 job offer was not suitable
as it exceeded appellant’s work restrictions and that clarification would be sought from
Dr. Alexander with respect to appellant’s job duties and work restrictions.
On April 2, 2013 the employing establishment proposed a modified city carrier position.
The duties of the position included 5.50 hours of delivering mail and 2.50 hours of lobby
assistance. Physical restrictions included up to 5.33 hours a day of simple grasping/fine
manipulation; up to 8 hours of standing and walking; up to 2 hours of lifting up to 10 pounds and
up to 4 hours of pulling/pushing.

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In an April 4, 2013 addendum, Dr. Alexander responded to OWCP’s request for
clarification regarding appellant’s physical work restriction and job duties. He indicated that
appellant could use both thumbs up to 5.50 hours out of an 8-hour workday. Dr. Alexander
reviewed the April 2, 2013 modified city carrier job offer and concluded that appellant was
capable of performing all the duties of the offered position.
On May 10, 2013 the employing establishment offered appellant the position of modified
city carrier at the Seminary Hill Station. On May 13, 2013 appellant refused the offered position
because he claimed that the park and loop delivery of mail required lifting of more than 10
pounds.
In a letter dated May 22, 2013, OWCP advised appellant of its determination that the
modified city carrier position offered by the employing establishment on May 10, 2013 was
suitable. The duties of the position had been reviewed and approved by Dr. Alexander. The
employing establishment confirmed that the position remained available to appellant. OWCP
instructed him that he must, within 30 days, either accept the position or provide a written
explanation as to why he did not accept the position or he could lose his right to compensation
under 5 U.S.C. § 8106(c) of FECA.
In a May 22, 2013 report, Dr. Deepak V. Chavda, a treating orthopedic surgeon,4
diagnosed bilateral hand and wrist osteoarthritis; bilateral carpal tunnel syndrome more on the
left than the right, bilateral de Quervain’s syndrome and left side thenar atrophy. A physical
examination of the left and right hands and wrists “shows well[-]healed scar over the
carpometacarpal (CMC) joint area extending towards the wrist area,” thenar atropy; normal wrist
and digits range of motion; and positive Finkelstein’s, Tinel’s, and Phalen’s tests. The right hand
and wrist physical also showed grip and pinch weakness. Dr. Chavda’s review of x-ray
interpretations of both hands showed major CMC joint arthropathy and mild intercarpal (IP) and
CMC joint arthropathy. He provided recommendations, which included bilateral wrist splints, a
magnetic resonance imaging (MRI) scan of both hands and wrists, and limited or no use of both
hands at work.
On May 28, 2013 OWCP received a May 21, 2013 duty status report from Dr. Chavda,
indicating that appellant had limited use of both his thumbs and that appellant was off work
pending an MRI scan.
In June 5 and 13, 2013 reports, Dr. Chavda reviewed MRI scans of both appellant’s
hands and wrists. He indicated that appellant was capable of working with limited use of both
hands. Based on a review of the MRI scan, Dr. Chavda diagnosed bilateral wrist and hand
osteoarthritis; clinical bilateral carpal tunnel syndrome; bilateral de Quervain’s syndrome; left
side Thenar atropy; severe left first CMC osteoarthrits; left IP joint effusion; left subchrondral
cyst in the lateral lunate and distal scaphoid; right subchondrol edema in the lateral lunate; and
right separated bone fragment seen anteromedially. He indicated that appellant was capable of
working with limited use of his hands.

4

The ABMS Board Certification Credentials Profile indicates a Board certification in orthopedic surgery with the
status of “Not certified.”

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In June 5 and 13, 2013 duty status reports, Dr. Chavda indicated that appellant was
disabled from work and noted work restrictions of no driving a motor vehicle at work and limited
to no use of both his wrists/hands.
In a July 3, 2013 letter, OWCP found that the reasons given by appellant for refusing the
offered position were not valid. It gave him 15 additional days to accept the position or to make
arrangements to report to this position. OWCP noted that if appellant did not accept the position
within 15 days of the date of the letter, his right to compensation for wage loss or a schedule
award would be terminated pursuant to section 8106 of FECA. It would not consider any further
reasons for refusal of the offered position.
Subsequent to OWCP’s July 3, 2013 letter, it received a duty status report and additional
reports dated June 27 and July 18, 2013 from Dr. Chavda reiterating prior findings and diagnoses
Dr. Chava again stated that appellant was capable of working light duty with limited use of both
hands. OWCP also received duty status reports dated June 28 and July 17, 2013 from
Dr. Chavda restricting appellant’s use of his hands and no driving a motor vehicle.
On August 22, 2013 OWCP terminated appellant’s wage-loss compensation benefits
effective August 16, 2013 for refusing an offer of suitable work pursuant to 5 U.S.C. § 8106(c).
Following the August 22, 2013 OWCP decision, additional reports from Dr. Chavda were
received. The July 18, August 29, and October 11, 2013 reports reiterated physical findings and
diagnoses from Dr. Chavda’s prior reports. He reitierated work restrictions of limited use of
appellant’s hands and wrists. A September 17, 2013 duty status report indicated that appellant
was restricted from driving a motor vehicle as well as limited use of both hands and wrists.
On September 17, 2013 appellant’s counsel requested a review of the written record by
an OWCP hearing representative. She contended that Dr. Alexander’s opinion was inconsistent,
lacked medical reasoning and she contended that Dr. Alexander’s work restrictions were
inconsistent with the restrictions found in the FCE. Lastly, appellant contended that the offered
position was outside appellant’s work restrictions on driving to and from work.
In addition, counsel provided evidence of a June 14, 2103 agreed order whereby
Dr. Alexander was disciplined by the Texas Medical Board. The order constituted a public
reprimand of Dr. Alexander and, among other things, restricted Dr. Alexander to the practice of
administrative medicine and included a prohibition of engaging “in the clinical practice of
medicine in any capacity that involves direct or indirect patient contact.” The basis for the
disciplinary action was Dr. Alexander’s arrest for use of and transporting marijuana for drug
traffickers. This order required that such prohibition would take effect on the date of the agreed
order and any violation of this order would be subject to further disciplinary action or
prosecution for practicing without a license in Texas. Counsel argued that this evidence should
disqualify Dr. Alexander from serving as the impartial medical specialist.
By decision dated March 12, 2014, the hearing represenative affirmed the August 22,
2013 decision.

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LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for him or her is not entitled to compensation.5 Once OWCP accepts a claim, it has the
burden of justifying termination or modification of compensation benefits under section 8106(c)
for refusing to accept or neglecting to perform suitable work.6 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.7 To justify termination, OWCP
must show that the work offered was suitable and that appellant was informed of the
consequences of his refusal to accept such employment.8 According to OWCP’s procedure, a
job offer must be in writing and contain a description of the duties to be performed and the
specific physical requirements of the position.9 Section 10.516 of the Code of Federal
Regulations10 provide that an employee who refuses or neglects to work after suitable work has
been offered or secured for the employee has the burden of showing that such refusal or failure
to work was reasonable or justified, and shall be provided with the opportunity to make such
showing before a determination is made with respect to termination of entitlement to
compensation.11
Section 8123(a) of FECA12 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13 The implementing regulations
provide in pertinent part: “If there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.”14 Where a case is referred to an impartial
medical specialist for the purpose of resolving a conflict, the opinion of such specialist, if

5

5 U.S.C. § 8106(c)(2).

6

Howard Y. Miyashiro, 51 ECAB 253 (1999).

7

H. Adrian Osborne, 48 ECAB 556 (1997).

8

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a)
(June 2013).
10

20 C.F.R. § 10.516.

11

See Camillo R. DeArcangelis, 42 ECAB 941 (1991).

12

5 U.S.C. § 8123(a).

13

Id.; see J.J., Docket No. 09-27 (issued February 10, 2009); Y.A., 59 ECAB 701 (2008); Darlene R. Kennedy, 57
ECAB 414 (2006); Geraldine Foster, 54 ECAB 435 (2003).
14

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).

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sufficiently well rationalized and based on a proper factual and medical background must be
given special weight.15
OWCP’s procedures provide:
“A claimant who asks to participate in selecting the referee physician or who
objects to the selected physician should be requested to provide his or her reason
for doing so. OWCP is responsible for evaluating the explanation offered.
Examples of circumstances under which the claimant may participate in the
selection include (but are not limited to)-(a) Documented bias by the selected physician;
(b) Documented unprofessional conduct by the selected physician;
“If the reason is considered acceptable, OWCP will prepare a list of three
specialists, including a candidate from a minority group if indicated and ask the
claimant to choose one. This is the extent of the intervention allowed by the
claimant in the process of selection or examination. If the reason offered is not
considered valid, a formal denial of the claimant’s request, including appeal
rights, may be issued if requested.”16
ANALYSIS
OWCP accepted the claim for temporary aggravation of bilateral thumb arthritis.
Appellant stopped work and received compensation on the periodic rolls. By decision dated
August 22, 2013, OWCP terminated his compensation for wage-loss benefits on the grounds that
he refused an offer of suitable work under 5 U.S.C. § 8106(c)(2).
OWCP found that a conflict in medical opinion between appellant’s treating physician,
Dr. Toledo, and the second opinion examiner, Dr. Holladay, on appellant’s physical restrictions.
It properly referred appellant to Dr. Alexander for an impartial medical examination to resolve
the medical conflict, pursuant to 5 U.S.C. § 8123(a).
The Board finds that, in the January 3, 2013 report, Dr. Alexander provided thorough
physical examination findings, advising that appellant had excellent bilateral and thumb range or
motion and mild bilateral arthritic spur formation changes in the distal interphalangeal joints.
Dr. Alexander agreed with the restrictions provided by Dr. Holladay who advised that he could
work an eight-hour day with restrictions that included limited grasping and carrying mail with
both hands, no lifting more than 10 pounds, and no climbing. He also found no impairment with
appellant’s ability to perform fine manipulation or grasping. In an April 4, 2013 addendum,
Dr. Alexander indicated that appellant could use both thumbs up to 5.50 hours out of an 8-hour

15

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

16

Supra note 9, Part 3 -- Medical Examinations, Chapter 3.500.4(b)(4) (March 1994).

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workday. He reviewed the April 2, 2013 modified city carrier job offer and concluded that
appellant was capable of performing all the duties of the offered position.
The Board finds that Dr. Alexander provided a complete and rationalized opinion based
on an accurate factual and medical background. His opinion that appellant could return to fulltime light-duty work with restrictions on grasping, using both thumbs, carrying mail, and lifting
is accorded special weight due to his status as an impartial medical examiner.17 Appellant did
not submit sufficient medical evidence to establish that he could not return to light-duty work
within the restrictions recommended by Dr. Alexander. Although Dr. Chavda submitted reports
reiterating that either appellant was disabled until an MRI scan could be performed or that he
was capable of working with limited bilateral use of his hands, Dr. Chavda’s reports provided no
rationale for his opinion. The Board has held that a medical opinion not fortified by medical
rationale is of diminished probative value.18 Furthermore, Dr. Chavda did not address the
suitability of the offered position or otherwise explain how appellant’s medical conditions
prevented him from performing the offered position.19 The Board finds that Dr. Alexander’s
medical opinion constitutes the special weight of the medical evidence and establishes that
appellant is no longer totally disabled for work due to the effects of the employment-related
injuries.
The employing establishment offered appellant a light-duty position as a modified city
letter carrier based on the physical limitations of the impartial medical specialist. The physical
requirements for the position included: 1 to 5.33 hours per day of simple grasping/fine
manipulation; 1 to 8 hours of standing and walking; 1 to 2 hours of lifting up to 10 pounds; and 1
to 4 hours of pulling/pushing. The Board finds that the physical requirements of the offered
modified city letter carrier position fall within appellant’s work restrictions as defined by
Dr. Alexander. The weight of the medical evidence establishes that he was no longer totally
disabled from work, but had the physical capacity to perform the duties listed in the May 10,
2013 job offer.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP
advised appellant on May 22, 2013 that it found the job to be suitable and gave him an
opportunity to provide reasons for refusing the position within 30 days. After reviewing the
medical evidence of record, OWCP advised appellant in a July 3, 2013 letter that the evidence
submitted was insufficient to support his refusal to accept the job offer and provided him an
additional 15 days to accept the position without penalty.20 The Board finds that OWCP
17

See S.R., Docket No. 09-2332 (issued August 16, 2010); R.C., 58 ECAB 238 (2006); Bryan O. Crane, 56
ECAB 713 (2005); Sharyn D. Bannick, 54 ECAB 537 (2003).
18

F.T., Docket No. 09-919 (issued December 7, 2009); Elizabeth H. Kramm, 57 ECAB 117, 124 (2005);
Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
19

See Gayle Harris, 52 ECAB 319 (2001).

20

Supra note 9 at Chapter 2.814.5(a)(3) (June 2013) (acceptable reasons for refusing to accept suitable
employment include medical evidence establishing that a claimant is disabled due to a worsening of an accepted
condition).

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followed established procedures prior to the termination of compensation pursuant to section
8106(c) of FECA.
On appeal counsel argues that Dr. Alexander’s opinion was inconsistent and lacked
medical reasoning. She also contended that Dr. Alexander’s work restrictions were inconsistent
with the restrictions found by FCE. Lastly, counsel argues that the offered position was outside
appellant’s work restrictions and his restrictions on driving to and from work and that his attempt
to work aggravated his condition. For the reasons discussed above, the Board finds appellant’s
arguments unfounded regarding Dr. Alexander’s opinion as it has found it to be well rationalized
and the work restrictions appropriate based on the medical evidence.
In addition, counsel proffered evidence of an agreed order issued by the Texas Medical
Board on June 14, 2013, which constituted a public reprimand of Dr. Alexander and, among
other things, restricted Dr. Alexander to the practice of administrative medicine. This restriction
included a prohibition of engaging “in the clinical practice of medicine in any capacity that
involves direct or indirect patient contact.” This agreed order required that such prohibition
would take effect on the date of the agreed order and any violation of this order would be subject
to further disciplinary action or prosecution for practicing without a license in Texas. Counsel
argued that this evidence should disqualify Dr. Alexander from serving as the impartial medical
specialist.
The Board has found that an impartial medical specialist properly selected under
OWCP’s rotational procedures will be presumed unbiased and the party seeking disqualification
bears the substantial burden of proving otherwise.21 The Board notes that OWCP has specific
procedures for contesting the selection of an impartial medical specialist prior to the examination
which counsel failed to invoke.22
Although counsel failed to contest the selection of an impartial medical specialist prior to
the examination, this would not preclude the Board from evaluating the selection process of the
impartial specialist or considering the evidence proffered by counsel as to the documented bias
or unprofessional conduct of the physician.23 While appellant did present evidence of a
disciplinary action against Dr. Alexander by the Texas Medical Board, such action was not
effective until June 14, 2013. The examination of appellant by Dr. Alexander took place on
January 3, 2013 and he submitted a clarification memorandum to OWCP on April 4, 2013. The
Board finds that the evidence submitted by counsel fails to establish documented bias or
unprofessional conduct sufficient to disqualify Dr. Alexander at the time he served as the
impartial medical specialist in this case and finds that OWCP properly relied upon his opinion in
finding appellant refused an offer of suitable work.

21

See Roger S. Wilcox, 45 ECAB 265, 275 (1993).

22

Supra note 16. Cf., J.D., Docket No. 12-920 (issued February 15, 2013); J.S., Docket No. 10-2198 (July 26,
2011); Geraldine Foster, 54 ECAB 435 (2003).
23

See Leonard W. Waggoner, 37 ECAB 676, 682-83 (1986).

9

The Board finds that the position offered was medically and vocationally suitable and
OWCP complied with the procedural requirements of section 8106(c) of FECA. OWCP met its
burden of proof to terminate appellant’s compensation benefits.
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 to terminate appellant’s
compensation effective August 16, 2013 on the grounds that he refused an offer of suitable work,
pursuant to 5 U.S.C. § 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 12, 2014 is affirmed.
Issued: March 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
North Chicago, IL, Employer
__________________________________________

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

Docket No. 12-1371
Issued: November 8, 2012

Case Submitted on the Record

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

JURISDICTION
On June 11, 2012 appellant, through his attorney, filed a timely appeal from a May 8,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) regarding his
schedule award claims. 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 has more than a nine percent permanent impairment of the
right leg and any permanent impairment of the left leg.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 14, 2010, the
Board affirmed a March 26, 2009 decision finding that appellant had no more than a nine percent
1

5 U.S.C. § 8101 et seq.

permanent impairment of the right leg and a June 4, 2009 decision denying his request for
reconsideration under FECA 5 U.S.C. § 8128.2 The Board found that the opinion of
Dr. David H. Trotter, a Board-certified orthopedic surgeon and second opinion physician,
represented the weight of the evidence and established that he did not have an impairment of
either lower extremity. The Board affirmed OWCP’s finding that appellant had no more than the
nine percent permanent impairment of the right lower extremity previously awarded. The facts
and the circumstances as set forth in the prior decision are hereby incorporated by reference.
On October 5, 2010 appellant filed a claim for an increased schedule award. In a letter
dated October 19, 2010, OWCP requested that his attending physician, Dr. Z. Mark Hongs, a
physiatrist, provide an impairment evaluation using the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
In a report dated March 8, 2011, Dr. William N. Grant, a Board-certified internist,
diagnosed lumbago, a lumbosacral sprain, a sprain of the left collateral ligament, lumbosacral
neuritis and lumbar disc displacement. Using Table 16-12 of the sixth edition of the A.M.A.,
Guides, he identified the diagnosis as class 2 sciatica. After applying grade modifiers, Dr. Grant
concluded that appellant had 25 percent permanent impairment of each lower extremity.
On April 11, 2011 an OWCP medical adviser reviewed Dr. Grant’s clinical findings. He
found that appellant had a mild motor impairment of the sciatic nerve which yielded a nine
percent permanent impairment of each lower extremity under Table 16-12 on page 535 of the
A.M.A., Guides.
OWCP determined that a conflict in medical opinion existed between Dr. Grant and
OWCP’s medical adviser regarding the extent of permanent impairment. It referred appellant to
Dr. Jay L. Levin, a Board-certified orthopedic surgeon, for an impartial medical examination.
In a July 27, 2011 impairment evaluation, Dr. Levin reviewed appellant’s history of an
April 23, 1990 work injury and discussed his current complaints of bilateral knee pain and
weakness and low back pain. He noted that x-rays revealed arthritis of both knees. In a followup report dated August 19, 2011, Dr. Levin reviewed in detail the medical evidence of record.
He diagnosed lumbar osteoarthritis at L4-5 and L5-S1 and bilateral arthritis of the knees.
Dr. Levin found that the diagnosed conditions were not related to the April 23, 1990 work injury.
He explained that appellant had undergone surgery on both knees prior to the employment
injury. Dr. Levin stated, “My record review demonstrates that, following that occurrence,
2

Docket No. 09-1951 (issued May 14, 2010). OWCP accepted that on April 23, 1990 appellant, then a 44-yearold housekeeping aide, sustained left knee strain, lumbar strain and a herniated nucleus pulposus at L5-S1 in the
performance of duty. In a decision dated September 11, 2008, it granted him a schedule award for a nine percent
permanent impairment of the right lower extremity. The period of the award ran from August 21, 2007 to
February 18, 2008. In its decision, OWCP noted that appellant had received total disability compensation from
August 21, 2007 to February 18, 2008 and thus was not owed compensation for the schedule award. On
December 10, 2008 a hearing representative set aside the September 11, 2008 decision after finding that the medical
evidence was insufficient to establish the extent of any permanent impairment. OWCP referred appellant for a
second opinion examination with Dr. Trotter, who determined that appellant had no ratable impairment of the lower
extremity. By decision dated March 26, 2009, it found that he had no more than the previously awarded nine
percent impairment of the right lower extremity.

2

[appellant] had sporadic medical treatment. And, after February of 2006, there are no comments
that any of his complaints were related to a previous injury on April 23, 1990.” He found that
appellant sustained a possible mild sprain of the left knee due to the work injury but advised,
“[appellant’s] underlying complaints are related to the degenerative changes of both his knees
and his neck referable to the aging process, some genetic factors and previous knee
arthroscopies.” Dr. Levin found that appellant had not sustained a herniated disc due to his
April 23, 1990 work injury and that it was “certainly not the cause of his current complaints.”
He further opined that his lumbar osteoarthritis was not employment related. Dr. Levin stated:
“Although there have been some comments in other reports about a sensory
deficit in [appellant’s] lower extremities, and that was actually the basis of a
permanent disability percentage rating, his orthopedic physical examination of
July 27, 2011 showed that sensation to tuning fork was intact in both lower
extremities and no significant motor deficit was present. It is my opinion that the
changes referable to degenerative arthritis in his knees and lumbar spine are not
related to the occurrence being discussed.”
Dr. Levin asserted that the accepted conditions resolved within three to six months of the work
injury.
On October 3, 2011 an OWCP medical adviser reviewed Dr. Levin’s report and found
that appellant had no impairment of either lower extremity due to his employment injury. He
noted that Dr. Levin did not attribute the lumbar and knee osteoarthritis to the April 23, 1990
work injury and further determined that “sensation and motor strength were intact in both lower
extremities.” The medical adviser concluded that there was no change from the prior award and
advised that the date of maximum medical improvement was May 18, 2006.
By decision dated October 11, 2011, OWCP denied appellant’s claim for an additional
schedule award for the right lower extremity and denied a schedule award for the left lower
extremity.
On October 19, 2011 appellant, through his attorney, requested a telephone hearing
before an OWCP hearing representative. At the telephonic hearing, held on February 9, 2012,
counsel argued that appellant did not receive the prior award for a nine percent permanent
impairment as the period of the schedule award covered a time when OWCP was paying him for
temporary total disability. He argued that OWCP should have waited until it stopped paying
appellant for temporary total disability before it began schedule award payments.
In a decision dated May 8, 2012, the hearing representative affirmed the October 11,
2011 decision. She noted that the 2008 schedule award, which was affirmed by the Board, was
not within her jurisdiction.3 The hearing representative determined that Dr. Levin’s opinion
represented the weight of the evidence and established that appellant had no ratable impairment.

3

The hearing representative noted, however, that the Board had found that “the fact that a schedule award will be
absorbed by a period of total disability does not automatically entitle the claimant to an award beginning after total
disability compensation ceases.”

3

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim, including that an employment injury contributed to the
permanent impairment for which schedule award compensation is alleged.4 Not all conditions
accepted by OWCP result in a permanent impairment to a scheduled member.5 It is the
claimant’s burden to establish that he or she sustained a permanent impairment of a scheduled
member or function as a result of an employment injury.6
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination.8 In situations where there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical specialist for
the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight.9
ANALYSIS
OWCP accepted that on April 23, 1990 appellant sustained left knee strain, lumbar strain
and a herniated disc at L5-S1. The Board previously affirmed a March 26, 2009 schedule award
finding that he had no more than a nine percent permanent impairment of the right leg. The
Board determined that the weight of the evidence established that appellant had no impairment of
either lower extremity.
On October 5, 2010 appellant requested an additional schedule award. OWCP properly
determined that a conflict existed between Dr. Grant, his attending physician, and the medical
adviser regarding the extent of any permanent impairment of the lower extremities. It referred
appellant to Dr. Levin for resolution of the conflict.
The Board finds that Dr. Levin’s opinion is thorough and well rationalized. It represents
the weight of the medical evidence.10 In a report dated July 27, 2011, Dr. Levin reviewed the
history of injury and the diagnostic studies. On August 19, 2011 he discussed the medical
4

See Bobbie F. Cowart, 55 ECAB 476 (2004).

5

See Thomas P. Lavin, 57 ECAB 353 (2006).

6

See Tammy L. Meehan, 53 ECAB 229 (2001).

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

9

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

10

Id.

4

evidence of record. Dr. Levin diagnosed lumbar osteoarthritis at L4-5 and L5-S1 and bilateral
knee arthritis. He indicated that appellant had a preexisting knee condition for which he had
undergone surgery prior to his April 23, 1990 employment injury. Dr. Levin found that the
diagnosed conditions were not related to the April 23, 1990 work injury. He noted that appellant
had undergone surgery on both knees prior to the employment injury. Dr. Levin determined that
appellant’s current complaints were due to degenerative change of the knees due to prior knee
surgeries, aging and genetics. He further found that the herniated disc did not cause any current
symptoms and that the osteoarthritis of the lumbar spine was not work related. Dr. Levin
concluded that appellant had no sensory loss or significant motor deficit in his lower extremities.
He advised that the accepted work injuries had resolved within six months of injury.
The Board has carefully reviewed the opinion of Dr. Levin and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue in the present case. Dr. Levin’s opinion is based on a proper factual and medical
history and he thoroughly reviewed the factual and medical history and accurately summarized
the relevant medical evidence.11 He provided medical rationale for his opinion by explaining
that appellant did not show any further signs of his accepted work injury and that he had no
sensory or motor impairment of the lower extremities. Dr. Levin’s opinion is consequently
entitled to special weight as the impartial medical examiner and establishes that appellant has no
lower extremity impairment due to his April 23, 1990 employment injury.12
CONCLUSION
The Board finds that appellant has no more than a nine percent permanent impairment of
the right lower extremity or any permanent impairment of the left lower extremity.

11

See Melvina Jackson, 38 ECAB 443 (1987).

12

See R.C., 58 ECAB 238 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 8, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clinton, MO, Employer
__________________________________________

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

Docket No. 09-1101
Issued: January 20, 2010

Case Submitted on the Record

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

JURISDICTION
On March 17, 2009 appellant filed a timely appeal of an August 12, 2008 decision of the
Office of Workers’ Compensation Programs denying compensation for disability and a
February 9, 2009 decision finding that she abandoned her request for an oral hearing. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant had any disability after July 12, 2008 causally
related to her May 2, 2008 employment injury; and (2) whether appellant abandoned her request
for a hearing before an Office hearing representative.
FACTUAL HISTORY
On May 2, 2008 appellant, then a 50-year-old noncareer rural mail carrier, injured her
right ring finger when a door slammed on her right hand as she was delivering mail. She stopped
work on May 5, 2008 and returned to restricted duty on May 15, 2008. The Office accepted her
claim for laceration and crushing injury of the fourth finger on the right hand.

In reports dated May 6 and 14, 2008, Dr. Mark Snell, a Board-certified surgeon,
diagnosed crush injury to the fourth finger of the right hand. He advised that appellant could
return to full-time light duty on May 15, 2008 with lifting, grasping and fine manipulation
restrictions of the right hand. On May 21, 2008 Dr. Snell reiterated that appellant could work
full-time limited duty with restrictions of the right hand. In a June 3, 2008 duty status report,
Dr. Victoria Kubik, a Board-certified orthopedic surgeon, checked a box “no” indicating that
appellant could not perform her regular duties and listed work restrictions.
On June 5, 2008 the employing establishment offered appellant a modified limited-duty
assignment as a temporary rural carrier in compliance with her work restrictions. Appellant
accepted this position on June 9, 2008, which required casing and delivering mail excluding
packages over 20 pounds.
In reports dated June 3 and July 3, 2008, Dr. Kubik reiterated that appellant had been
working light duty since the May 2, 2008 injury with lifting restrictions for the right hand.
In an August 7, 2008 e-mail, the employing establishment informed the Office that
appellant was terminated from employment on July 12, 2008 for security violations not related to
her present claim. It noted that she was not terminated due to any physical inability to perform
her assigned duties. The employing establishment advised that appellant’s light-duty assignment
would have remained available if she had not been terminated.
In an August 12, 2008 decision, the Office found that appellant was not entitled to wageloss compensation effective July 12, 2008. Appellant was not currently working due to
termination from the employing establishment for reasons not related to her work injury. The
Office noted that the claim remained open for medical care.
On September 2, 2008 appellant requested a telephone hearing.
In a December 10, 2008 letter, the Office notified appellant that the hearing would take
place on January 13, 2009. It also provided her with a telephone number and pass code to access
the hearing representative at that time. The letter was mailed to appellant’s address of record.
In a February 9, 2009 decision, a hearing representative found that appellant abandoned
her request for a hearing, having received proper notice but did not appear. The hearing
representative noted there was no indication that appellant contacted the Office prior or
subsequent to the hearing to explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence.2
For each period of disability claimed, the employee has the burden of establishing that he was
1

5 U.S.C. §§ 8101-8193.

2

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

2

disabled for work as a result of the accepted employment injury.3 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.4 To meet his burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.5
Under the Act, the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.6 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to his federal employment,
but who nonetheless has the capacity to earn the wages he was receiving at the time of injury,
has no disability and is not entitled to compensation for loss of wage-earning capacity. When,
however, the medical evidence establishes that the residuals or sequelae of an employment injury
are such that, from a medical standpoint, they prevent the employee from continuing in his
employment, he is entitled to compensation for any loss of wages.7
The Board has held that when a claimant stops work for reasons unrelated to the accepted
employment injury, there is no disability within the meaning of the Act.8 When a light-duty
position is withdrawn, it is appellant’s burden to establish that any increase in disability for work
is due to the accepted injury, rather than another cause.9
ANALYSIS -- ISSUE 1
The Board finds that appellant did not have any disability after July 12, 2008 causally
related to her May 2, 2008 employment injury.
The record reflects that the employing establishment provided appellant with a modified
limited-duty assignment within the work restrictions outlined by her treating physicians,
Drs. Snell and Kubik. Appellant performed this job until the employing establishment
terminated her employment on July 12, 2008 due to security violations unrelated to her accepted
injury claim. The employing establishment advised the Office that appellant’s light-duty
3

C.S., 60 ECAB ___ (Docket No. 08-2218, issued August 7, 2009).

4

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

5

A.D., 58 ECAB 149 (2006).

6

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
7

Supra note 3.

8

Id. See John I. Echols, 53 ECAB 481 (2002); John W. Normand, 39 ECAB 1378 (1988). Disability is defined
to mean the incapacity because of an employment injury, to earn the wages the employee was receiving at the time
of injury. It may be partial or total. See 20 C.F.R. § 10.5(f).
9

C.S., supra note 3; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7.a(1)
(May 1997).

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assignment would have remained available to her if she had not been terminated. Moreover,
medical reports contemporaneous with appellant’s termination show that she was able to
continue working light duty with lifting restrictions of her right hand. There is no evidence that
appellant was terminated due to any physical inability to perform her assigned duties. The Board
has held that when a claimant stops work for reasons unrelated to the accepted employment
injury, there is no disability within the meaning of the Act.10 As there is no evidence of record
that appellant was not able to perform her assigned duties after July 12, 2008, she was not
disabled within the meaning of the Act.11
For these reasons, appellant’s disability after July 12, 2008 was not the result of her
accepted work injury.
LEGAL PRECEDENT -- ISSUE 2
Under the Act and its implementing regulations, a claimant who has received a final
adverse decision by the Office is entitled to receive a hearing upon writing to the address
specified in the decision within 30 days of the date of the decision for which a hearing is
sought.12 Unless otherwise directed in writing by the claimant, the hearing representative will
mail a notice of the time and place of the oral hearing to the claimant and any representative at
least 30 days before the scheduled date.13 The Office has the burden of proving that it mailed
notice of a scheduled hearing to a claimant.14
The authority governing abandonment of hearings rests with the Office’s procedure
manual, which provides as follows:
“A hearing can be considered abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office].”15

10

Supra note 8.

11

See Normand supra note 8 (where the Board found that appellant was no longer disabled after being terminated
from his position for unofficial use of government property).
12

See 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

13

20 C.F.R. § 10.617(b).

14

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see R.C., 59 ECAB ___ (Docket No. 08-132, issued May 9, 2008).

4

ANALYSIS -- ISSUE 2
In an August 12, 2008 decision, the Office terminated appellant’s partial disability for
work after July 12, 2008. Appellant filed a timely request for an oral hearing. In a
December 10, 2008 letter, the Office notified her that a telephonic hearing was scheduled for
January 13, 2009. It also provided appellant with a telephone number and pass code to connect
with the hearing representative at the designated time. Despite that information, appellant
neither called at the appointed time nor explained her failure to appear at the hearing within 10
days of the January 13, 2009 scheduled hearing date.16 The Board finds that appellant has thus
abandoned her request for a hearing.
On appeal, appellant contends that she did not receive notice of the scheduled hearing.
The record reflects that the Office mailed a copy of the December 10, 2008 hearing notice to
appellant’s address of record, and it was not returned as undeliverable. The Board has found
that, in the absence of evidence to the contrary, a letter properly addressed and mailed in the due
course of business, such as in the course of the Office’s daily activities, is presumed to have
arrived at the mailing address in due course. This is known as the mailbox rule.17 As the Office
properly mailed a hearing notice of appellant’s address of record, it is presumed to have arrived
at her mailing address. Appellant also asserts that she left a voice-mail message for the Office on
January 20, 2009 inquiring about the status of her hearing, but the record does not substantiate
that appellant contacted the Office within 10 days of January 13, 2009.18
CONCLUSION
The Board finds that appellant did not have any disability after July 12, 2008 causally
related to her May 2, 2008 employment injury. The Board also finds that appellant abandoned
her request for a hearing before an Office hearing representative.

16

See C.T., 60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009).

17

Id.

18

After issuance of the Office’s August 12, 2008 decision, additional evidence was received into the record.
However, the Board cannot consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated February 9, 2009 and August 12, 2008 are affirmed.
Issued: January 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees,’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, MADISON HEIGHTS
CARRIER ANNEX, Troy, MI, Employer
__________________________________________

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

Docket No. 19-1179
Issued: November 21, 2019

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 May 2, 2019 appellant, through counsel, filed a timely appeal from a February 27, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability commencing September 10, 2015 causally related to the accepted August 9, 2012
employment injury.
FACTUAL HISTORY
On August 10, 2012 appellant, then a 62-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 9, 2012 he sustained injuries to his right hip, right
knee, and the back of his head when he slipped and fell while in the performance of duty. He
stopped work on August 10, 2012. On the reverse side of the claim form, the employing
establishment indicated that the injury occurred in the performance of duty and that appellant first
received medical care on August 10, 2012. OWCP accepted his claim for contusion of the face,
scalp, and neck, right elbow contusion, and abdominal wall contusion. It later expanded
acceptance of appellant’s claim to include aggravation of right hip osteoarthritis. OWCP paid him
wage-loss compensation on the supplemental rolls beginning September 24, 2012. On October 22,
2012 appellant returned to part-time, modified-duty work.
On July 17, 2013 appellant underwent OWCP-authorized right hip replacement surgery
and stopped work again. He returned to part-time, modified-duty work on January 10, 2014
working approximately two to six hours per day. OWCP paid wage-loss compensation for the
remaining hours of each day.
Appellant retired from federal employment, effective August 31, 2015.
In letters dated October 18, 2016 and November 9, 2017, appellant, through counsel,
requested that the acceptance of his claim be expanded to include bilateral hip arthritis.
OWCP received reports dated June 9, 2016 and September 5, 2017 by Dr. Joseph Salama,
a Board-certified orthopedic surgeon. Dr. Salama described that on August 9, 2012 appellant
injured his right hip when he slipped and fell down at work. He recounted that appellant had
undergone a successful right total hip arthroplasty and now complained of left hip pain.
Dr. Salama related that appellant informed him that he was only able to work between four and
half to five hours per day due to difficulty and inability to walk for long periods of time. He
indicated that appellant was awaiting approval for left total hip replacement surgery and that he
believed that both his hips were aggravated by the work-related injury. Upon examination of
appellant’s right hip, Dr. Salama observed good range of motion. Range of motion of appellant’s
left hip demonstrated limited internal and external rotation with pain. Dr. Salama diagnosed left
hip primary arthritis and osteoarthritis and history of right hip joint total replacement. He reported
that he believed appellant had “aggravated his left hip underlying arthritis from the work-related
injury.”
On January 29, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that he
sustained a recurrence of disability due to his August 9, 2012 employment injury. He explained
that the recurrence occurred because the surgeon who performed right hip surgery could not
perform surgery on both hips at the same time. Appellant noted that after his right hip surgery he

2

had to wait before undergoing left hip surgery because he had to undergo rehabilitation. He related
that he had always had continuous pain in his right and left hips. Appellant identified
September 10, 2015 as the date and hour that he stopped work after the recurrence.
In an April 3, 2018 development letter, OWCP advised appellant that additional evidence
was needed to establish his recurrence claim, including an attending physician’s opinion supported
by medical rationale explaining how his claimed recurrence of disability was due to a worsening
of his original injury, without an intervening cause or new exposure. It also requested that he
complete an attached questionnaire. OWCP afforded appellant 30 days to submit the necessary
evidence. No additional evidence was received.
By decision dated July 10, 2018, OWCP denied appellant’s recurrence of disability claim,
finding that the medical evidence of record was insufficient to establish a recurrence of disability
due to his accepted August 9, 2012 employment injury. It determined that he had not submitted
medical evidence to establish that he experienced an increase of disability or objective worsening
of his August 9, 2012 employment injury.
On July 16, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
December 13, 2018. Appellant testified that, after he underwent his right hip replacement surgery,
his left hip began to have problems.
By decision dated February 27, 2019, the hearing representative affirmed the July 10, 2018
denial, finding that the evidence of record was insufficient to establish appellant’s claim for
recurrence of disability.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.3
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury. Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.4

3

M.S., Docket No. 19-0609 (issued September 23, 2019); S.H., Docket No. 18-1398 (issued March 12, 2019);
Terry R. Hedman, 38 ECAB 222 (1986).
4

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

3

OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.5 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered such that they exceed the employee’s physical
limitations.6
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing September 10, 2015 causally related to the accepted August 9, 2012
employment injury.
OWCP accepted appellant’s traumatic injury claim for contusions of the face, scalp, neck,
right elbow, and abdominal wall and aggravation of right hip osteoarthritis. As appellant has not
alleged a change in the nature and extent of his modified-duty job requirements, he must, therefore,
provide medical evidence establishing that he was disabled due to a worsening of his accepted
August 9, 2012 employment injury.8
In reports dated June 9, 2016 and September 5, 2017, Dr. Salama noted appellant’s
August 9, 2012 employment injury and subsequent right hip surgery. He related that appellant
now complained of left hip pain and was waiting approval for left total hip replacement surgery.
Dr. Salama conducted an examination and diagnosed left hip primary arthritis and osteoarthritis
and history of right hip joint total replacement. He opined that appellant had aggravated his left
hip underlying arthritis from the work-related injury. Dr. Salama did not, however, specifically
address the relevant issue of whether appellant was disabled from employment due to his accepted
August 9, 2012 employment injury. Medical evidence that does not offer an opinion regarding the
cause of an employee’s condition or disability is of no probative value on the issue of causal
relationship.9 As such, Dr. Salama’s medical reports are insufficient to establish appellant’s claim.
5

20 C.F.R. § 10.5(x).

6

Id.

7

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, supra note 4; Fereidoon Kharabi, 52
ECAB 291 (2001).
8

Supra note 4.

9
See L.O., Docket No. 19-0953 (issued October 7, 2019); see also L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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On appeal counsel asserts that OWCP’s February 27, 2019 decision was contrary to fact and law.
However, as explained above, the medical evidence of record does not contain a rationalized
medical opinion explaining how appellant’s accepted employment conditions caused total
disability during the claimed period of disability.10 Appellant, therefore, has not met his burden
of proof to establish his recurrence claim.
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 appellant has not met his burden of proof to establish a recurrence of
disability commencing September 10, 2015, causally related to the accepted August 9, 2012
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2019
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

10

See N.M., Docket No. 18-1584 (issued March 15, 2019).

5


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

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Appearances:
Harry James, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 13-173
Issued: April 16, 2013

Case Submitted on the Record

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

JURISDICTION
On October 22, 2012 appellant filed a timely appeal from the October 17, 2012 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 an
injury on November 1, 2011 in the performance of duty.
FACTUAL HISTORY
On November 17, 2011 appellant, then a 39-year-old city carrier, filed a traumatic injury
claim alleging that at 5:13 p.m. on November 1, 2011 she sustained injury to her left shoulder
and left lower back when Cedric Oliver, a supervisor, “pushed/followed me into the wall.” She
1

5 U.S.C. §§ 8101-8193.

stopped work on November 2, 2011. On the portion of the form to be completed by a supervisor,
Debra Ray, the postmaster at the employing establishment, asserted that appellant was not
injured in the performance of duty noting that Mr. Oliver stated that she “bumped into him very
lightly, more like a brushing.” She indicated that appellant filed harassment or discrimination
claims on October 31, November 12 and 14, 2011.
In a November 25, 2011 statement, Tammie Turner, a health and resource management
specialist for the employing establishment, stated that appellant’s claim was being challenged on
the grounds of failure to establish fact of injury, causal relationship and performance of duty.
She indicated that appellant failed to establish the factual aspect of the claimed November 1,
2011 incident or provide statements of anyone who witnessed the incident. Appellant also did
not provide medical evidence proving that she was injured on that date.
In an e-mail to Ms. Turner dated November 3, 2011, Ms. Ray advised that appellant
called her on that date and told her that she had gone to a physician who gave her a statement
stating that she could not return to work until November 13, 2011.2 Ms. Ray noted that appellant
stated that she went to the physician because she was working in a hostile work environment and
Mr. Oliver was mad at her and had bumped into her on November 1, 2011. She noted that
appellant did not advise her of these circumstances during the two and a half hour conversation
they had the next day, November 2, 2011.
In a December 2, 2011 letter, OWCP advised appellant that she needed to provide
additional factual and medical evidence in support of her claim of a November 1, 2011 work
injury. It indicated that the evidence was not sufficient to establish that appellant actually
experienced the incident or employment factor alleged to have caused injury.
In a November 30, 2011 statement, appellant indicated that on November 1, 2011 she had
just entered the building to end her tour and Mr. Oliver began to come down the entrance. She
stated that she braced herself against the wall to ensure no physical contact would be made with
Mr. Oliver. Appellant asserted that Mr. Oliver intentionally pushed her against the wall and that
she felt a popping in her neck and back and pain in her left shoulder.
In an undated statement received by OWCP on December 5, 2011, Mr. Oliver stated on
November 1, 2011 at about 5:26 p.m. he was walking through the employee entrance to check
the dock and appellant opened the door with her head down, earplugs in her ears and talking on
the telephone. He noted that, in doing so, appellant did not notice him until he was close to the
door and she accidently bumped into him while she was coming inside the building from off the
street. After the incident, appellant never stated anything to Mr. Oliver or Ms. Ray that he
pushed her or tried to harm her in anyway. Mr. Oliver noted that there were four or five other
carriers in the building and that appellant failed to mention anything about the alleged incident to
her coworkers. He noted that she came in and put her mail away, stood at her case on Auxiliary
Route 17 for about five minutes and then clocked out and went home. Mr. Oliver expressed his
belief that appellant filed her claim after she thought about the incident and “figured that it would
be beneficial for her.” He believed that she became disgruntled after she was instructed that she
2

Ms. Ray later indicated that appellant brought her a “statement” indicating that she needed to be excused from
work. It is unclear who prepared this document and it is not contained in the record.

2

would have to start carrying mail again and that she was no longer going to be in an acting
supervisor role on an everyday basis because the facility could no longer carry her hours in that
capacity.3 Mr. Oliver stated, “I never shoved [appellant], she brushed into me not paying
attention to where she was walking in the [aisle way], which is something that happens everyday
through that [aisle way]. After the incident we both went our separate ways-no harm, no foul.”
In a November 18, 2011 initial visit report, Dr. Edward Wolski, an attending Boardcertified family practitioner, stated that appellant reported that in October 2011 she contacted an
official in order to file a harassment claim against Mr. Oliver. Appellant indicated that on
November 1, 2011 she was pushing a cart in a hallway and tried to get out of the way when she
noticed Mr. Oliver approaching her. Dr. Wolski stated that she noted that she braced the left side
of her body up against the cement wall to avoid contact with Mr. Oliver but he leaned into her
while walking by and shoved her against the wall, thereby causing injury to her left upper
extremity, left hip and lower back.4 He diagnosed cervical, lumbar and thoracic sprains/strains,
cervical radiculitis, left hip strain, contusion to the cervical, thoracic and lumbar spines, left hip
contusion and disturbance of emotions.5 On December 1, 2011 appellant underwent a functional
capacity evaluation at Dr. Wolski’s direction. In a December 12, 2011 form report, Dr. Wolski
listed various work restrictions.
In a January 6, 2012 decision, OWCP denied appellant’s claim that she sustained a work
injury on November 1, 2011. It noted the conflicting accounts of what happened on
November 1, 2011 and found that she had not established that the claimed work incident
occurred at the time, place and in the manner alleged.
Appellant requested a telephone hearing with an OWCP hearing representative.6 During
the April 18, 2012 hearing, she testified that on November 1, 2011 she was performing her
regular duties inside the mail facility, including transporting mail to her casing station after
finishing her route. Appellant asserted that there were no other workers in the vicinity and
indicated that Mr. Oliver got up from his chair and began to go through the same entrance that
she was using. She stated that he walked past her and pushed her, leaning his body into her and
elbowing her into the wall. Appellant indicated that Mr. Oliver leaned the whole right side of his
body into her right side and then continued to walk down the hall past her. She testified that she
3

In a November 30, 2011 statement, Ms. Turner noted that appellant had been informed she would no longer be
utilized as an acting supervisor and that appellant had contacted numerous management officials in an attempt to get
them to allow her to continue acting as a supervisor. Appellant was told that the budget would not allow her to act
in that capacity.
4

Appellant provided a similar account of the claimed November 1, 2011 incident in a Workers’ Compensation
Injury Questionnaire completed on November 18, 2011. The record also contains an undated handwritten statement
describing the events of November 18, 2011 but the statement, although presumably completed by appellant, is
unsigned.
5

In a work restrictions form report dated November 18, 2012, Dr. Wolski listed the date of injury as November 1,
2011 and indicated that appellant could not work. He did not provide any history of injury or examination findings
on this form. The findings of lumbar x-rays obtained on November 18, 2011 show mild disc compression at L1-2
and spondylosis. X-rays of appellant’s left shoulder from the same date showed unremarkable results.
6

Appellant submitted additional medical records and reports of physician’s assistants and physical therapists.

3

waited for him to go through the entrance before she proceeded through the entrance. Appellant
asserted that she was not wearing earphones at the time of the incident, as stated by Mr. Oliver,
explaining that such an action would constitute a violation of safety practices. She testified that
she attempted to care for herself at home by using hot packs and that this resulted in her delay in
filing her claim. Appellant indicated that her pain subsequently worsened at which time she filed
a claim and sought treatment with her attending physician. Appellant’s representative also
testified at the hearing and indicated that appellant had filed a grievance regarding the
November 1, 2011 incident which had reached the step one meeting stage. The representative
asserted that Mr. Oliver harassed appellant by pushing her into the wall and changing her work
schedule, as a result of appellant ending their personal relationship.
In a July 11, 2012 decision, the hearing representative affirmed OWCP’s January 6, 2012
decision. She found that appellant had not established the fact of injury regarding the
mechanism of the claimed November 1, 2011 injury as there were inconsistencies in the factual
account of the November 1, 2011 incident. This cast serious doubt upon the validity of
appellant’s claim. The hearing representative discussed appellant’s delay in filing a claim and
seeking medical attention.7
Appellant requested reconsideration of her claim and submitted additional medical
evidence describing the treatment of her various physical complaints.
In an October 17, 2012 decision, OWCP affirmed its July 11, 2012 decision denying
appellant’s claim for a November 1, 2011 work injury noting that she had not established the
occurrence of the claimed November 1, 2011 work incident as alleged.
LEGAL PRECEDENT
An employee who claims benefits under FECA has the burden of establishing the
occurrence of an injury at the time, place and in the manner alleged, by a preponderance of the
reliable, probative and substantial evidence.8 An injury does not have to be confirmed by
eyewitnesses in order to establish the fact that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.9 An employee has not met
his or her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.10 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
7

The hearing representative indicated that appellant had not established that Mr. Oliver harassed her by
preventing her from working as an acting supervisor or by pushing her into a wall on November 1, 2011. Although
there is some suggestion in the record that she claimed that she sustained an emotional condition due to actions of
Mr. Oliver, appellant did not clearly make such a claim and the question of whether she sustained a work-related
emotional condition is not currently before the Board.
8

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

9

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

10

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

4

without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.11 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.12
ANALYSIS
On November 17, 2011 appellant, filed a traumatic claim alleging that on November 1,
2011 she sustained injury to her left shoulder and left lower back when Mr. Oliver, a supervisor,
“pushed/followed me into the wall.” She later provided expanded descriptions of this claimed
work incident and also indicated that other parts of her body were injured as a result, including
her cervical region and hips. In a November 30, 2011 statement, appellant indicated that on
November 1, 2011 she had just entered the building to end her tour and Mr. Oliver began to
come down the entrance. She stated that she braced herself against the wall to ensure no
physical contact would be made with Mr. Oliver. Appellant asserted that he intentionally pushed
her further into and against the wall and that as a result she felt a popping in her neck and back
and pain in her left shoulder. In several decisions, OWCP denied her claim for a November 1,
2011 work injury finding that she had not established the occurrence of the November 1, 2011
work incident as alleged. It referenced statements of managers that conflicted with those of
appellant regarding the incident and noted that she did not adequately explain her delay in filing
her claim and in seeking medical treatment.
The Board finds that there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of appellant’s claim that she sustained an injury on November 1, 2011.13
The record contains evidence which calls into serious question her account of the events of
November 1, 2011.
In an undated statement received by OWCP on December 5, 2011, Mr. Oliver stated that
on November 1, 2011 he was walking through the employee entrance to check the dock and
appellant opened the door with her head down, earplugs in her ears and talking on the telephone.
He noted that, in doing so, appellant did not notice him until he was close to the door and she
accidently bumped into him while she was coming inside the building from off the street.14
After the incident, appellant never stated anything to him and did not try to inform Ms. Ray, the
postmaster or anyone else that he pushed her or tried to harm her in anyway. Mr. Oliver noted
that there were four or five other carriers in the building and noted that appellant failed to
mention to her coworkers that he pushed her in a malicious manner. He stated, “I never shoved
her, she brushed into me not paying attention to where she was walking in the [aisle way], which
is something that happens everyday through that [aisle way].” In an e-mail dated November 3,
2011, Ms. Ray advised that appellant called her on that date and told her that Mr. Oliver was
11

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

12

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

13

See supra note 11.

14

In other statements, Mr. Oliver described the contact as a very light and insignificant brushing.

5

mad at her and had bumped into her on November 1, 2011. She noted that appellant did not
advise her of these circumstances when they had a two and half hour conversation on
November 2, 2011.
Further doubt is cast upon the factual aspects of appellant’s claim by the fact that she did
not file a traumatic injury claim for the claimed November 1, 2011 work injury until more than
two weeks later on November 17, 2011. Appellant did not adequately explain why she delayed
so long in filing her claim.15 She also delayed in seeking medical treatment of the conditions that
she claimed that she sustained on November 1, 2011. The November 18, 2011 report of
Dr. Wolski, an attending Board-certified family practitioner, detailed an examination on that date
and represents the earliest medical evidence of record to mention the claimed November 1, 2011
work incident.16 Appellant indicated that she treated herself at home for a period, but she did not
adequately explain why her delay in seeking medical treatment was so long given the severity of
the injuries she claimed for several parts of her body.17
Although an employee’s statement alleging that, an injury occurred at a given time and in
a given manner is generally accorded great probative value, there is strong and persuasive
evidence refuting appellant’s account of the events of November 1, 2011.18 The Board finds that
she has not established the occurrence of the November 1, 2011 work incident as alleged and
therefore has not established that she sustained an injury on November 1, 2011 in the
performance of duty.
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 appellant did not meet her burden of proof to establish that she
sustained an injury on November 1, 2011 in the performance of duty.

15

Such explanation is especially necessary given the serious claim by appellant of malicious conduct by
Mr. Oliver. It should be noted that at the time of the claimed November 1, 2011 incident she had filed a harassment
grievance against Mr. Oliver that was being processed in its early stages.
16

Ms. Ray advised that appellant called her on November 3, 2011 and told her that she had gone to a physician
who gave her a “statement” indicating that she could not return to work until November 13, 2011. She later
indicated that appellant later brought her a statement indicating that she needed to be excused from work. However,
there is no medical report in the record detailing a visit to a physician during this period.
17

On appeal, appellant’s representative asserted that appellant “immediately” sought medical care but he did not
point to medical evidence in the record which supported this assertion.
18

See supra note 12.

6

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-1203
Issued: November 24, 2014

Case Submitted on the Record

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

On April 29, 2014 appellant filed a timely appeal from the April 9, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP), which found that his reconsideration
request was untimely and did not present clear evidence of error. The appeal was docketed as
No. 14-1203.
The Board has duly considered the matter and finds that the case is not in posture for
decision. In a July 5, 2011 decision, OWCP denied appellant’s claim for a traumatic injury,
finding that the medical evidence was insufficient to establish causal relationship. Appeal rights
provided with this decision gave appellant an option to request a hearing within 30 days.
Appellant subsequently requested a hearing in a letter received by OWCP on August 9 but
postmarked on August 4, 2011.1 OWCP did not act on this request. In an appeal form dated
March 16, 2014, appellant requested reconsideration. He indicated that he had previously
requested reconsideration on March 16, 2012, but did not receive a response from OWCP.
Appellant provided a copy of the request for reconsideration, which was received by OWCP on
March 27, 2012. He submitted new arguments and new medical evidence in support of his
1

The postmark on the envelope was stamped August 4, 2011. OWCP regulations state that the timeliness of a
hearing request is determined by postmark or other carrier’s date marking. 20 C.F.R. § 10.616(a).

claim. In a decision dated April 9, 2014, OWCP found that the request was untimely filed and
failed to present clear evidence of error.
Section 8124(b) of the Federal Employees’ Compensation Act states unequivocally that a
claimant not satisfied with a decision of OWCP has a right, upon timely request, to a hearing
before a representative of OWCP.2 Any claimant dissatisfied with a decision of OWCP shall be
afforded an opportunity for an oral hearing or, in lieu thereof, a review of the written record. A
request for either an oral hearing or a review of the written record must be submitted, in writing,
within 30 days (as determined by postmark or other carrier’s date marking) of the date of the
decision for which a hearing is sought.3 If the request is not made within 30 days or if it is made
after a reconsideration request, a claimant is not entitled to a hearing or a review of the written
record as a matter of right.4
Appellant’s hearing request was postmarked August 4, 2011 and was within 30 days of
the July 5, 2011 OWCP decision denying appellant’s claim. His hearing request was therefore
timely. While appellant also requested reconsideration on March 27, 2012 and again on
March 22, 2014, the Board has long held that, if there are simultaneous requests for a hearing
and for reconsideration, OWCP is to proceed with adjudicating the hearing request before
reconsideration.5 In this case, it was not proper for the claims examiner to exercise discretion
that is within the purview of the Branch of Hearings and Review. Inasmuch as appellant’s
hearing request was timely filed, the Board will set aside the April 9, 2014 decision and remand
the case for OWCP to schedule an oral hearing.

2

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616.

3

20 C.F.R. § 10.616(a).

4

Claudio Vazquez, 52 ECAB 496 (2001).

5

See D.M., Docket No. 10-2237 (issued June 28, 2011); See Eddie Franklin, 51 ECAB 223 (1999); Mary E.
Schipske, 43 ECAB 318 (1991); Mary G. Allen, 40 ECAB 190 (1988); see also Federal (FECA) Procedure Manual,
Part 2 -- Claims, Hearings & Review of the Written Record, Chapter 2.1601.3 (October 1992).

2

IT IS HEREBY ORDERED THAT the April 9, 2014 decision is set aside and the case
remanded for OWCP to schedule an oral hearing.
Issued: November 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Buffalo, NY,
Employer
__________________________________________

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

Docket No. 08-1430
Issued: November 6, 2008

Case Submitted on the Record

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

JURISDICTION
On April 15, 2008 appellant filed a timely appeal from a February 20, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied her occupational disease
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 met her burden of proof in establishing that she developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On January 3, 2008 appellant, then a 57-year-old support services technician, filed an
occupational disease claim alleging that she developed carpal tunnel syndrome in the
performance of duty. She first noticed her condition on August 17, 2007 and first related it to
her employment on December 26, 2007 after discussing the problem with her physician.

Appellant explained that her job required daily use of a computer for tasks including typing and
data entry, which caused tingling sensations and numbness in her right thumb, index and middle
fingers. She did not stop work.
By correspondence dated January 16, 2008, the Office requested additional information
concerning appellant’s claim. In a January 22, 2008 response, appellant explained that she spent
four or more hours per day performing data entry and typing tasks. She also answered
telephones and wrote messages and performed various other short and long-term projects.
In an August 10, 2005 report, Dr. George C. Kalonaros, a neurologist, explained that
appellant presented with numbness and discomfort in her feet, which he believed was related to
her recently diagnosed diabetes. An August 1, 2007 report noted that the foot conditions were
slowly worsening and diagnosed possible small fiber neuropathy. In a December 3, 2007 report,
he explained that appellant had recently developed symptoms in her right hand, including
numbness in the right thumb, index and middle fingers, which may represent carpal tunnel
syndrome. Dr. Kalonaros noted that her symptoms were particularly pronounced in the morning
and when she held a steering wheel. He recommended nerve conduction studies and an
electromyogram (EMG) to determine whether her upper extremity symptoms were related to
carpal tunnel syndrome.
In a December 26, 2007 electrodiagnostic report, Dr. Kalonaros diagnosed moderately
severe right median neuropathy, localized to the wrist. He conducted the diagnostic testing to
determine whether appellant’s upper extremity symptoms were related to her neuropathy or
represented carpal tunnel syndrome. Dr. Kalonaros found abnormal nerve conduction studies but
a normal EMG, which were consistent with right median neuropathy localized to the wrist. He
opined that appellant’s condition was work related.
By correspondence dated February 12, 2008, the employing establishment concurred in
appellant’s description of her duties. It provided a job description characterizing her work as
sedentary but requiring occasional lifting of computer equipment, files or supplies weighing up
to 20 pounds.
By decision dated February 20, 2008, the Office denied appellant’s occupational disease
claim on the grounds that she failed to establish a causal relationship between her diagnosed
condition and the accepted work-related events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

2

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.3
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.4 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, she must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”5
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.6 The
opinion of the physician must be based on a complete factual and medical background of the
claimant7 and must be one of reasonable medical certainty8 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
ANALYSIS
The record reveals that appellant worked at the employing establishment and performed
certain physical tasks including typing and data entry. However, she did not submit rationalized
medical evidence sufficient to establish that her diagnosed condition was causally related to the
physical tasks she performed at work.10

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

D.D., 57 ECAB 734 (2006).

5

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 3.
6

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

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

9

Judy C. Rogers, 54 ECAB 693 (2003).

10

On appeal, appellant submitted additional medical evidence. The Board, however, notes that it cannot consider
this evidence for the first time on appeal because the Office did not consider this evidence in reaching its final
decision. The Board’s review is limited to the evidence in the case record at the time the Office made its final
decision. 20 C.F.R. § 501.2(c).

3

Appellant submitted several medical reports from Dr. Kalonaros. On August 10, 2005
and August 1, 2007 he noted her bilateral foot neuropathy that was related to diabetes. The
Board notes that her occupational disease claim pertains to carpal tunnel syndrome of the right
upper extremity and does not allege any foot condition. Therefore, these reports are not relevant
to her claim on appeal. On December 3, 2007 he noted that appellant had recently developed
numbness and tingling in her right thumb, index and middle fingers and occasional shooting pain
up to her elbow. However, Dr. Kalonaros did not provide a specific diagnosis of her condition or
relate it to her federal employment. The Board has held that a physician’s medical report which
does not include an opinion on causal relationship is not probative on that issue.11
In a December 26, 2007 electrodiagnostic report, Dr. Kalonaros diagnosed moderately
severe right median neuropathy localized to the right wrist. He opined that appellant’s condition
was work related. However, Dr. Kalonaros did not support his opinion that her diagnosed
neuropathy was causally related to her employment with any explanation or rationale. He did
not identify or discuss the accepted employment factors and work activities or the reasons why
he believed they caused or aggravated her diagnosed neuropathy. Without detailed rationale to
support his stated conclusion on causal relationship, Dr. Kalonaros’ opinion is insufficient to
establish that appellant’s right median neuropathy is causally related to the accepted employment
factors.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
developed an occupational disease in the performance of duty.

11

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

4

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5