United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
U.S. POSTAL SERVICE, FREDERICK POST
OFFICE, Frederick, MD, Employer
__________________________________________

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

Docket No. 19-1949
Issued: October 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 23, 2019 appellant filed a timely appeal from a September 11, 2019 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 11, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective September 15, 2019, due to her failure to attend a
scheduled medical appointment.
FACTUAL HISTORY
On November 16, 2005 appellant, then a 35-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on November 12, 2005 she tore ligaments in her
right hand as a result of attempting to catch a falling box while in the performance of duty. OWCP
initially accepted the claim for right wrist sprain. It later expanded the acceptance of the claim to
include the additional conditions of triangular fibrocartilage complex tear of the wrist, right carpal
tunnel syndrome, and articular cartilage disorder of the right hand, lateral epicondylitis, and other
joint derangement of the right forearm. OWCP later authorized an arthroscopy of the right wrist,
a right carpal tunnel release, a partial removal of the ulna, and an A1 pulley release of the right
thumb and incise finger tendon sheath, and paid her wage-loss compensation on the periodic rolls,
commencing December 24, 2006.
On March 15, 2019 OWCP referred appellant to Dr. Easton Manderson, a Board-certified
orthopedic surgeon, for a second opinion examination. In his April 9, 2019 report, Dr. Manderson
found that appellant had had right wrist surgery for triangular cartilage tear, stabilization of the
radioulnar joint with a tendon graft for right wrist sprain, and an ulnar nerve transposition for
cubital tunnel syndrome, which would have explained the marked weakness of her right grip,
finding her surgery had failed. He noted his disagreement with an attending physician that there
were any preexisting conditions of appellant’s right upper extremity and opined that any conditions
at present were related to the accepted November 12, 2005 employment injury. Dr. Manderson
opined that the fracture of the forearm bones of the right forearm had occurred after the surgery of
the right wrist and after the injury and, therefore, were sequela of the November 12, 2005 ulnar
nerve injury. However, he recommended repeat electrodiagnostic studies to determine whether
appellant’s marked right grip weakness and positive Tinel’s sign of the right elbow were also
causally related to the accepted employment injury.
In two separate letters dated April 12, 2019, OWCP referred appellant for an
electromyography (EMG) scheduled for June 10, 2019 and an x-ray scheduled for June 14, 2019.3
Appellant failed to attend the EMG testing on June 10, 2019. She also failed to attend the
x-ray on June 14, 2019.
In a June 13, 2019 notice, OWCP proposed to suspend appellant’s wage-loss compensation
and medical benefits, pursuant to 5 U.S.C. § 8123(d), as she had failed to attend the EMG
scheduled for June 10, 2019. It advised her that she should provide a written explanation of her
reasons for failing to attend the scheduled examination, with substantive corroborating evidence,
3

OWCP had previously attempted to schedule the prescribed diagnostic tests and sent letters of notice to appellant
on April 12, 2019, after which the medical clinic noted that it had been unable to reach appellant by telephone
regarding the scheduled appointment.

2

within 14 days. A copy of the proposed notice was also mailed to appellant’s then-counsel. No
response was received.
OWCP subsequently contacted Dr. Manderson and requested a supplemental report as to
whether and why the diagnostic studies were necessary.
In an August 12, 2019 supplemental report, Dr. Manderson clarified his opinion that an
x-ray of appellant’s right wrist was necessary to make sure that there were no bony spurs or bony
disorder that were contributing to the ulnar nerve problems at the right elbow. He explained that
radiographs of the right wrist and elbow and electrodiagnostic studies of the right ulnar nerve
would help to establish the present status of the right upper extremity and would help to make his
recommendation for treatment more precise.
In a Form EN1032 dated August 29, 2019, appellant noted that her address had changed as
of August 1, 2019.4
By decision dated September 11, 2019, OWCP finalized its proposed suspension of
appellant’s wage-loss compensation and medical benefits, effective September 15, 2019, finding
that on June 6, 2019 it had directed appellant to attend an EMG scheduled for June 10, 2019, but
she had not attended the appointment, nor had she provided a reason why she had refused to attend
the diagnostic study.
LEGAL PRECEDENT
Section 8123(d) of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.5 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.6
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.7 Section
8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction ceases.8 OWCP’s procedures provide that, before OWCP may invoke these
provisions, the employee is to be provided a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.9 If good cause for the refusal or obstruction is not
4

In a memorandum dated September 18, 2019, OWCP noted that appellant had not indicated her change of address
until after the June 10, 2019 EMG had already been scheduled.
5

5 U.S.C. § 8123(d).

6

L.B., Docket No. 17-1891 (issued December 11, 2018); J.T., 59 ECAB 293 (2008).

7

20 C.F.R. § 10.320.

8

Id. at § 10.323; L.B., supra note 6.

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).

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established, entitlement to compensation is suspended in accordance with section 8123(d) of
FECA.10
ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective September 15, 2019, due to her failure to attend a
scheduled medical appointment.
In his April 9, 2019 second opinion report, Dr. Manderson opined that repeat diagnostic
studies were medically necessary to determine the etiology of appellant’s right elbow conditions.
OWCP subsequently referred appellant, by letter dated June 6, 2019, for a June 10, 2019
EMG. It informed her of the time and place of the diagnostic testing and explained that it would
suspend her compensation pursuant to 5 U.S.C. § 8123(d) if she refused to submit to or obstructed
testing. Appellant, however, failed to appear for the June 10, 2019 scheduled testing.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP.11 The only limitation on OWCP’s authority, with regard to instructing a claimant to
undergo a medical examination, is that of reasonableness.12 The Board has interpreted the plain
meaning of section 8123(d) to provide that compensation is not payable while a refusal or
obstruction of an examination continues unless appellant can establish good cause for failing to
report at the scheduled time.13
A failure to submit to a scheduled medical appointment may warrant suspension of a
claimant’s entitlement to further wage-loss compensation and medical benefits, unless he or she
can establish good cause for the failure to report at the scheduled time.14 The Board finds that
appellant has not established good cause for her failure to report for the scheduled testing. OWCP
allowed appellant 14 days to provide reasons for failing to appear.15 Appellant did not respond
within the time allotted.
On appeal appellant contended that the June 6, 2019 letter referring her to the prescribed
EMG scheduled for June 10, 2019 had been sent to the wrong address. The evidence of record,
however, establishes that the letter was sent to the most recent address of record at the time, as
well as to her then-counsel, as appellant had failed to submit a change of address to OWCP prior

10

Id.

11

D.K., Docket No. 18-0217 (issued June 27, 2018).

12

A.E., Docket No. 18-1155 (issued February 21, 2019).

13

B.C., Docket No. 19-1058 (issued November 15, 2019).

14

Id.

15

5 U.S.C. § 8123.

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to the issuance of its June 6, 2019 referral letter.16 Under the mailbox rule, a document mailed in
the ordinary course of the sender’s business practices to the addressee’s last known address is
presumed to be received by the addressee.17 Appellant has not submitted evidence of nondelivery
of OWCP’s development letter such that the presumption would be rebutted.18
As appellant did not attend the June 10, 2019 testing as scheduled and failed to provide
good cause for failing to appear within 14 days of OWCP’s June 13, 2019 notice of proposed
suspension, the Board finds that OWCP properly suspended entitlement to future compensation in
accordance with 5 U.S.C. § 8123(d) until the date on which she agrees to attend the examination.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective September 15, 2019, due to her failure to attend a
scheduled medical appointment.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

16

See supra note 5.

17

See P.B., Docket No. 20-0148 (issued July 23, 2020); J.J., Docket No. 13-1067 (issued September 20, 2013);
Kenneth E. Harris, 54 ECAB 502, 505 (2003).
18

See D.R., Docket No. 19-1899 (issued April 15, 2020).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVSEA
EAST COAST FECA SITE, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 08-1878
Issued: February 11, 2009

Case Submitted on the Record

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

JURISDICTION
On June 25, 2008 appellant filed a timely appeal from a March 31, 2008 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed an August 6,
2007 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the schedule award claim.
ISSUE
The issue is whether appellant has more than 10 percent right upper extremity
impairment or 10 percent left upper extremity impairment, for which he received schedule
awards.
FACTUAL HISTORY
On April 16, 2001 appellant, then a 46-year-old pipefitter, filed an occupational disease
claim for a bilateral upper extremity condition he attributed to his federal employment. The

Office accepted the claim for bilateral carpal tunnel syndrome and authorized bilateral carpal
tunnel release surgery, which appellant underwent on August 13 and September 6, 2001.
On December 29, 2006 appellant claimed a schedule award.1 In an October 17, 2006
impairment rating, Dr. David Weiss, an osteopath, noted that appellant described constant pain
and numbness. On sensory examination, he noted a deficit over the C5-6 dermatomes involving
the right upper extremity. Dr. Weiss also found that monofilament testing revealed diminished
light touch sensibility over the median nerve distribution on both the right and left hand. He
indicated that he used Table 16-10 on page 482, Table 16-15 on page 492, and Tables 16-33 and
16-34 on page 509 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) in calculating appellant’s impairment.
Dr. Weiss found that he had 19 percent right upper extremity impairment and 38 percent left
upper extremity impairment. For the right upper extremity, he found 10 percent impairment for
a Grade 4 sensory deficit of right median nerve and 10 percent lateral pinch deficit. For the left
upper extremity, Dr. Weiss found 31 percent impairment for Grade 4 sensory deficit of left
median nerve and 10 percent impairment for lateral pinch deficit. He advised that appellant
reached maximum medical improvement on October 17, 2006.
In a January 16, 2007 report, an Office medical adviser reviewed the record and
Dr. Weiss’ impairment rating and concluded that appellant sustained 10 percent impairment to
each upper extremity. He noted that Dr. Weiss utilized lateral pinch deficit as well as decreased
sensation over the median nerve. Citing to page 507 and 508 of the A.M.A., Guides, the Office
medical adviser noted that assessment for strength measurements and manual muscle testing
were not afforded a large role in impairment calculations. He found Dr. Weiss’ calculations for a
10 percent sensory impairment of the right median nerve were proper under the A.M.A., Guides;
however, Dr. Weiss’ calculation of 31 percent impairment of the left median nerve was in error.
The Office medical adviser explained a Grade 4 sensory deficit of the left median nerve
multiplied by the 39 percent maximum median nerve sensory deficit under Table 16-15 on page
492 resulted in 10 percent, not 31 percent impairment. He further noted October 17, 2006 was
the date of maximum medical improvement.
By decision dated January 24, 2007, the Office granted appellant schedule awards for
10 percent right upper extremity impairment and 10 percent left upper extremity impairment.
The awards covered the period October 17, 2006 through December 27, 2007.
Appellant requested an oral hearing, which was held on May 16, 2007. He submitted an
amended page 6 from Dr. Weiss’ October 17, 2006 report, which indicated that appellant had a
Grade 2 rather than a Grade 4 sensory deficit of the left median nerve.2 Appellant also submitted
evidence pertaining to his eligibility to compensation at the augmented rate for identified eligible
dependents.

1

Appellant initially filed a schedule award on March 4, 2002.

2

Appellant also submitted evidence pertaining to his eligibility to compensation at the augmented rate for
identified eligible dependents.

2

By decision dated July 23, 2007, an Office hearing representative remanded the case for
further development based on the new evidence from Dr. Weiss.3
On July 29, 2007 the Office medical adviser reviewed Dr. Weiss’ amended report and
advised that appellant had no greater impairment. He found that appellant had 10 percent
sensory deficit of the left upper extremity. The Office medical adviser indicated that a Grade 2
deficit was not justified as Dr. Weiss’ sensory examination did not demonstrate any
abnormalities and the monofilament testing demonstrated only a slight reduction in sensory
findings. Therefore, a Grade 4 deficit was the most appropriate classification. In regard to
motor testing, the Office medical adviser stated the medical records demonstrated no thenar
atrophy. Citing to section 16.8 on page 508 of the A.M.A., Guides, the Office medical adviser
advised that neither grip nor pinch strength would be appropriate for evaluation. He noted that
Dr. Weiss documented that appellant had constant pain.
By decision dated August 6, 2007, the Office denied appellant’s claim for an increased
schedule award.
Appellant requested an oral hearing which was held December 19, 2007. By decision
dated March 31, 2008, an Office hearing representative affirmed the August 6, 2007 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.5 Office procedures6 provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.7 Chapter 16 of the fifth edition of the A.M.A., Guides provides

3

The hearing representative also found that appellant’s schedule award should be paid at the augmented rate as he
had an eligible dependent for compensation purposes.
4

5 U.S.C. § 8107.

5

See 20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001). See also Linda Beale, 57 ECAB 429 (2006).
6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003). See also Cristeen Falls, 55 ECAB 420 (2004).
7

A.M.A., Guides 491, 482, 484, 492, respectively; see Joseph Lawrence, Jr., 53 ECAB 331 (2002).

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the framework for assessing upper extremity impairments.8 Regarding carpal tunnel syndrome,
the A.M.A., Guides provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present:
(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTS is rated
according to the sensory and/or motor deficits as described earlier.9
(2) Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG [electromyogram] testing of the
thenar muscles: a residual CTS is still present and an impairment rating
not to exceed five percent of the upper extremity may be justified.
(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”10 (Emphasis in the
original.)
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.11
ANALYSIS
Appellant received a schedule award for 10 percent right upper extremity impairment and
10 percent left upper extremity impairment for his accepted bilateral carpal tunnel conditions.
He underwent surgical release. The Office based its award on the January 16 and July 29, 2007
reports of the Office medical adviser, who reviewed the reports of Dr. Weiss.
Dr. Weiss first calculated appellant’s impairment of the right median nerve as 10 percent
and 31 percent of the left median nerve based on Table 16-10 page 482 and Table 16-15 page
8

A.M.A., Guides 433-521.

9

Section 16.5b of the A.M.A., Guides describes the methods for evaluating upper extremity impairments due to
peripheral nerve disorders and provides that the severity of the sensory or pain deficit and motor deficit should be
classified according to Tables 16-10a and 16-11a respectively. The impairment is evaluated by multiplying the
grade of severity of the sensory or motor deficit by the respective maximum upper extremity value resulting from
sensory or motor deficits of each nerve structure involved. When both sensory and motor functions are involved,
the impairment values derived for each are combined. Id. at 481; Kimberly M. Held, 56 ECAB 670 (2005).
10

A.M.A., Guides 495.

11

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

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492 of the A.M.A., Guides. Subsequently, he advised that appellant had a Grade 4 sensory
deficit in the right upper extremity and, in an amended report, advised that appellant had a Grade
2 sensory deficit in the left upper extremity. Dr. Weiss also provided 10 percent impairment for
both the right and left upper extremities for lateral pinch deficit based on Tables 16-33 and 16-34
on page 509 of the A.M.A., Guides. The Office medical adviser reviewed Dr. Weiss’ reports and
found 10 percent impairment of both the right and left arms.
The Board finds that the medical evidence does not establish that appellant has greater
than 10 percent impairment of the right upper extremity or 10 percent impairment of the left
upper extremity, for which he received schedule awards. Dr. Weiss calculated that appellant had
a Grade 4 sensory loss12 (25 percent deficit) associated with right median nerve distribution
which, when multiplied by the 39 percent maximum value for median nerve loss, yielded a 9.75
percent (rounded to 10 percent) impairment for the right arm. The Office medical adviser found,
and the Board agrees, that this was an appropriate use of the A.M.A., Guides.
Dr. Weiss also found that appellant had a Grade 2 sensory loss (80 percent) associated
with left median nerve distribution which, when multiplied by the 39 percent maximum value for
median nerve loss, yielded a 31.20 percent (rounded to 31.0 percent) impairment for the right
arm. The Office medical adviser disagreed with this calculation as the medical evidence was
more consistent with a Grade 4 rather than a Grade 2 classification of sensory deficit or pain.13
According to Dr. Weiss’ medical records, the sensory examination did not demonstrate any
abnormalities and monofilament testing of both upper extremities demonstrated slight reduction
in sensation. The Office medical adviser determined that the clinical findings were more
consistent with a Grade 4 deficit rather than a Grade 2 sensory deficit or pain for the left median
nerve. A Grade 4 sensory loss (25 percent) associated with left median nerve distribution which,
when multiplied by the 39 percent maximum value for median nerve loss, yields a 9.75 percent
(rounded to 10 percent) impairment for the left arm.14 The Board notes that Dr. Weiss provided
no reasoning or explanation regarding why the sensory deficit to the left median nerve
represented Grade 2 rather than Grade 4, as noted in his original report. The Office medical
adviser provided sufficient reasoning to explain why the clinical finding supported a Grade 4
deficit.
Dr. Weiss also stated that impairment due to loss of pinch strength was 10 percent
impairment for both the right and left upper extremities. However, the Board notes that the
A.M.A., Guides do not encourage the use of grip or pinch strength as an impairment factor
because strength measurements are functional tests influenced by subjective factors that are
difficult to control. The A.M.A., Guides for the most part is based on anatomic impairment.
Only in rare cases should grip strength be used and only when it represents an impairing factor
12

A.M.A., Guides 482, 492, Table 16-10, 16-15.

13

Under Table 16-10, a Grade 4 classification of sensory deficit or pain is noted as “distorted superficial tactile
sensibility (diminished light touch), without or without minimal abnormal sensations or pain, that is forgotten during
activity.” A Grade 2 classification of sensory deficit or pain is noted as “decreased superficial cutaneous pain and
tactile sensibility (decreased protective sensibility), with abnormal sensations or moderate pain, that may prevent
some activities.”
14

See supra note 12.

5

that has not been otherwise considered adequately. The A.M.A., Guides state that, otherwise, the
impairment ratings based on objective anatomic findings take precedence.15 Dr. Weiss did not
address this section of the A.M.A., Guides or explain why grip strength deficit should be
considered in rating impairment of either upper extremity.
The Office medical adviser properly applied the provisions of the A.M.A., Guides to the
clinical findings of Dr. Weiss to rate 10 percent impairment of each arm. There is no other
medical evidence of record that establishes any greater impairment pursuant to the A.M.A.,
Guides. The Office properly found that appellant was not entitled to an increased schedule
award.
CONCLUSION
The Board finds appellant has no more than 10 percent right upper extremity impairment
or 10 percent left upper extremity impairment, for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2008 and August 6, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See A.M.A., Guides 507-08, 16.8 Strength Evaluation, Principles; Phillip H. Conte, 56 ECAB 213 (2004). See
also T.A., 59 ECAB ___ (Docket No. 07-1836, issued November 20, 2007) (the Board has found that the fifth
edition of the A.M.A., Guides provides that impairment for carpal tunnel syndrome be rated on motor and sensory
deficits only).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION BLACK
HILLS HEALTH CARE SYSTEM,
Fort Meade, SD, Employer
__________________________________________

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

Docket No. 13-457
Issued: May 2, 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 December 28, 2012 appellant filed a timely appeal of an October 29, 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of her
medical condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 2011 appellant, then a 55-year-old nurse, sustained lower back soreness
while in the performance of duty. She was released to full-time work on April 1, 2011. OWCP
accepted appellant’s traumatic injury claim for lumbar sprain.2
On September 7, 2012 appellant filed a recurrence claim, alleging that her condition
worsened on May 1, 2011 and necessitated further medical treatment. She did not stop work. A
September 5, 2012 note from Dr. Bart L. Eastwood, an osteopath specializing in family
medicine, indicated that appellant was scheduled for surgery on September 25, 2012.
OWCP informed appellant in a September 17, 2012 letter that additional evidence was
needed to establish her claim for recurrence of medical condition. It gave her 30 days to submit
a medical report from a physician explaining the connection between her present condition and
the accepted injury.
Appellant submitted a number of medical reports. In various notes for the period July 22
to October 10, 2011, Dr. Jerrid W. Goebel, a chiropractor, examined her and found diminished
thoracolumbar, lumbar, sacroiliac, and pelvic range of motion (ROM), hypertonic and tender
lumbar paraspinal, quadratus lumborum, psoas, hip flexor, piriformis, and gluteus muscles, and
positive straight leg raise and Thomas tests. He opined that extended hours at work appeared to
aggravate appellant’s symptoms.
In an August 30, 2011 report, Dr. Charles A. Lewis, an osteopath specializing in family
medicine, related that appellant experienced right lateral hip pain and administered a greater
trochanter cortisone injection. He added that she “worked a 15-hour shift ... the other day and
hurt severely after that.” On December 6, 2011 Dr. Lewis obtained a magnetic resonance
imaging (MRI) scan of the right hip exhibiting degenerative changes of the superior acetabulum
and calcific spurring of the greater trochanter and administered another cortisone injection. He
diagnosed degenerative right hip joint disease and greater trochanteric bursitis in a January 16,
2012 report.
Dr. Eastwood diagnosed lumbago, right trochanteric bursitis, iliotibial band tendinitis,
and thigh and pelvic joint pain in reports from January 23 to May 2, 2012. He mentioned that
appellant’s symptoms worsened after a 12-hour shift at work. Dr. Eastwood administered a right
intra-articular hip injection on April 10, 2012.
A May 10, 2012 MRI scan arthrogram obtained by Dr. David K. White, a Board-certified
diagnostic radiologist, confirmed fluid in the greater trochanteric bursa, but did not show
acetabular labral tears or internal derangement. In July 9 and August 20, 2012 reports,
Dr. Eastwood reviewed the MRI scan arthrogram and diagnosed degenerative right hip
osteoarthritis.

2

OWCP noted that appellant’s claim was originally received as a simple, uncontroverted case resulting in
minimal or no lost time from work and payment was approved for limited medical expenses without formal
adjudication.

2

In a September 6, 2012 report, Dr. Lewis commented that an MRI scan demonstrated that
appellant sustained complete abductor tendon tear. On examination, he observed parathoracic
and lumbar tenderness. Dr. Lewis diagnosed ruptured right hip abductor tendon and pointed out
that appellant was scheduled for surgery.3
On September 25, 2012 appellant underwent gluteus medius abductor repair and
trochanteric bursectomy.
By decision dated October 29, 2012, OWCP denied appellant’s claim for recurrence of
medical condition, finding the evidence insufficient to establish that her alleged need for further
medical treatment was due to a worsening of her accepted lumbar sprain.
LEGAL PRECEDENT
A recurrence of medical condition refers to a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original treatment or injury is not
considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.4
An employee who claims a recurrence of medical condition has the burden of proof to
establish causal relationship by the weight of substantial, reliable and probative evidence. This
burden requires that an employee furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the employee’s need for
additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning.5
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain while in the performance of duty
on January 29, 2011. She was released to full-time work effective April 1, 2011. Appellant
subsequently filed a September 7, 2012 claim for recurrence of medical condition and submitted
medical evidence.
Medical evidence of bridging symptoms must demonstrate that the claimed recurrence
was causally related to the accepted injury.6 In an August 30, 2011 report, Dr. Lewis related that
appellant worked a 15-hour shift “the other day” and experienced right lateral hip pain. He
obtained a right hip MRI scan on December 6, 2011, which confirmed degenerative changes of
the superior acetabulum and calcific spurring of the greater trochanter, and diagnosed
3

Appellant also submitted records from a physical therapist for the period February 15 to April 5, 2012 and a
physician assistant’s postoperative report dated October 5, 2012.
4

20 C.F.R. § 10.5(y).

5

E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012).

6

Ricky S. Storms, 52 ECAB 349 (2001).

3

degenerative right hip joint disease and greater trochanteric bursitis. In a September 6, 2012
report, Dr. Lewis stated that another MRI scan exhibited complete abductor tendon tear and
diagnosed ruptured right hip abductor tendon.7 However, he did not explain with sound medical
reasoning how appellant’s present condition was causally related to her accepted lumbar sprain.8
Dr. Lewis merely noted that she was symptomatic following a 15-hour shift on an undisclosed
date. The fact that appellant was asymptomatic before a work shift and symptomatic afterward,
by itself, cannot establish causal relationship.9
Dr. Eastwood diagnosed lumbago, right trochanteric bursitis, iliotibial band tendinitis,
and thigh and pelvic joint pain in reports from January 23 to May 2, 2012. He also mentioned
that appellant’s symptoms worsened after a 12-hour shift at work. Following review of a
May 10, 2012 MRI scan arthrogram, Dr. Eastwood diagnosed degenerative right hip
osteoarthritis. To the extent that he asserted that appellant’s present condition was causally
related to her accepted lumbar sprain, he did not fortify his conclusion with medical rationale.10
In chiropractic notes for the period July 22 to October 10, 2011, Dr. Goebel opined that
extended work hours appeared to aggravate appellant’s symptoms. As defined under FECA, a
“physician” includes a chiropractor only to the extent that his reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.11 If the accepted condition does not pertain to a diagnosis of
subluxation, a chiropractor is not a physician under FECA and his opinion does not constitute
competent medical evidence.12 In this case, OWCP only accepted lumbar sprain. Therefore,
Dr. Goebel’s notes did not constitute competent medical evidence. Likewise, because neither
physical therapists13 nor physician assistants14 are considered physicians as defined under section
8101(2) of FECA, a physical therapist’s records for the period February 15 to April 5, 2012 and
a physician assistant’s postoperative report dated October 5, 2012 lacked probative value. In the
absence of rationalized medical opinion evidence, appellant did not meet her burden of proof.
Appellant contends on appeal that the recurrence of her medical condition was due to the
January 29, 2011 employment injury. As noted, the medical evidence did not sufficiently
establish this connection.

7

The Board notes: (1) the case record does not contain evidence of these MRI scan findings; and (2) Dr. Lewis,
inter alias, diagnosed multiple conditions that have yet to be accepted by OWCP as employment related. See A.K.,
Docket No. 12-742 (issued October 18, 2012).
8

See id.

9

T.M., Docket No. 08-975 (issued February 6, 2009).

10

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

11

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

12

D.C., Docket No. 11-1865 (issued April 4, 2012).

13

Jennifer L. Sharp, 48 ECAB 209 (1996).

14

Allen C. Hundley, 53 ECAB 551, 554 (2002).

4

Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of her
medical condition.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2012 merit decision of the Office
of Workers’ Compensation Programs be affirmed.
Issued: May 2, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 13-1321
Issued: November 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 15, 2013 appellant filed a timely appeal from an April 9, 2013 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate compensation for
wage-loss and medical benefits effective August 24, 2012; and (2) whether appellant has
established an employment-related condition or disability after August 24, 2012.
FACTUAL HISTORY
On August 25, 2009 appellant, then a 54-year-old letter carrier, filed a claim for traumatic
injury (Form CA-1). On the claim form appellant stated that on August 7, 2009 she was pushing
1

5 U.S.C. § 8101 et seq.

a cart and injured the left side of her lower back. The employing establishment indicated on the
form that appellant stopped work on August 19, 2009. OWCP accepted the claim on October 5,
2009 for aggravation of sciatica on the left side. Appellant received compensation for wage loss.
An attending physician, Dr. Kenneth Fischer, a Board-certified neurologist, submitted a
January 6, 2010 form report (OWCP 5c, work capacity evaluation). He advised that appellant
remained totally disabled for work. Dr. Fischer also submitted a narrative report of that date
providing results on examination and diagnosing a “somewhat improved but persistent workrelated lumbar radiculopathy.”
OWCP referred appellant to Dr. Richard Glatzer, a Board-certified orthopedic surgeon,
for a second opinion examination.2 In a report dated February 4, 2010, Dr. Glatzer provided a
history, results on examination and review of medical records. He could not find any
relationship between appellant’s subjective complaints and the August 7, 2009 work injury.
Dr. Glatzer noted that a medical report of September 14, 2009 made no mention of any neck or
back complaints. He found that there was a functional overlay on appellant’s part as he could
not make positive objective orthopedic or neurologic findings to corroborate her subjective
complaints.
OWCP found a conflict in medical opinion between Dr. Fischer and Dr. Glatzer.
Appellant was referred to Dr. Theodore Evans, a Board-certified orthopedic surgeon selected as
the referee physician to resolve the conflict in medical evidence. By report dated May 18, 2010,
Dr. Evans reviewed a history of injury and medical treatment. Based on the physical
examination, he diagnosed lumbar degenerative disc disease with radiculopathy on the left.
Dr. Evans also noted cervical spondylosis, and a differential diagnosis of carpal tunnel syndrome
or neuropathy on the left, versus C6 radiculitis on the left. He stated that appellant “has a
chronic preexisting condition of the lumbar spine: Lumbar spondylosis, degenerative disc
disease and radiculopathy on the left which was documented by an orthopedist in 1995. The
patient probably sustained a sprain of her low back that was not described as such at the time of
injury which occurred on or about August 7, 2009, and an exacerbation of her lumbar
spondylosis, degenerative disease and radiculopathy.” In response to the question as to whether
appellant continued to have residuals of the work injury, Dr. Evans stated that appellant had
“subjectively greater complaints with respect to her low [back] and left lower extremity.
However, objectively are findings of chronic preexisting lumbar degenerative disc disease
spondylosis and radiculopathy on the left.” Dr. Evans reported that, from the standpoint of the
work injury, no further medical treatment was indicated, although appellant had preexisting
lumbar disease that required further treatment. As to physical limitations, he stated that there
were none related to the August 7, 2009 work injury.
In a letter dated September 23, 2010, OWCP advised appellant that it proposed to
terminate her wage-loss compensation and medical benefits. It found that the weight of the
medical evidence was represented by Dr. Evans.

2

5 U.S.C. § 8123(a) provides that an employee shall submit to an examination by a physician, designated or
approved by the Secretary of Labor, as frequently and at the times and places as may reasonably be required.

2

By letter dated October 3, 2010, appellant, through her representative, argued that the
report of Dr. Evans was not sufficient to resolve the conflict in the medical evidence. In a letter
dated October 29, 2010, OWCP asked Dr. Evans to clarify his opinion.
Dr. Evans submitted a report dated December 28, 2010, stating that in August 2009
appellant sustained a low back sprain with an exacerbation of lumbar spondylosis, degenerative
disease and radiculopathy. He stated that her conditions had improved to the point that no
further medical treatment was necessary. Objectively, appellant had reached her baseline. As to
her ability to work as a letter carrier, Dr. Evans stated that she had significant preexisting and
degenerative conditions that had worsened over time and prevented her from performing heavy
work such as 70-pound lifting.
By decision dated January 20, 2011, OWCP terminated appellant’s wage-loss and
medical benefits. It found that the weight of the medical evidence was represented by Dr. Evans.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 2, 2011. She submitted a November 18, 2011 report from Dr. Fischer, who stated
that appellant sustained a work injury on August 7, 2009 with subsequent cervical and lumbar
symptomology. Dr. Fischer opined that, although appellant “did have some antecedent
degenerative disease, she was functioning and asymptomatic until the [August 7, 2009] accident.
That incident aggravated and worsened some antecedent discogenic disease and is the proximate
cause of her current disability.”
In a decision dated February 15, 2012, an OWCP hearing representative determined that
the case required further development of the medical evidence. The hearing representative found
that the statement of accepted facts (SOAF) should be updated to include exacerbation of lumbar
degenerative disc disease and lumbar strain as accepted conditions. The hearing representative
directed OWCP to request a supplemental report from Dr. Evans, addressing whether the
exacerbation of lumbar degenerative disc disease and radiculopathy had ceased.
OWCP prepared a SOAF and referred the case to Dr. Evans for a supplemental opinion.
In a report dated June 20, 2012, Dr. Evans noted that his review of medical records included
Dr. Fischer’s November 18, 2011 report. He stated that, while appellant had reported subjective
symptoms, he based his opinion on the objective findings. Dr. Evans noted that while
Dr. Fischer had referred to the magnetic resonance imaging scan evidence demonstrating
discogenic disease and L5 nerve decompression, these objective findings were related chronic
degenerative disease related to a 2005 motor vehicle accident. He further stated, “The obvious
logical disconnect in this case is that the objective findings in the low back are the same as those
described after her previous injury of 2005, there is abundant preexisting disease, the perceived
pain level as low with minimal intervention of a medication that is also used for chronic
neuropathy, and yet the patient and treating physician allege the present limitations are due to the
new injury in 2009.” Dr. Evans reiterated his opinion that, based upon the objective findings and
within reasonable degree of medical certainty, the current limitations were not due to the injury
of 2009.

3

By letter dated July 20, 2012, OWCP advised appellant that it proposed to terminate her
compensation for wage-loss and medical benefits. Appellant was advised she had 30 days to
submit additional evidence or argument.
In a decision dated August 24, 2012, OWCP terminated compensation for wage-loss and
medical benefits effective that date.
Appellant again requested a hearing before an OWCP hearing representative, which was
held on January 18, 2013. She submitted a November 19, 2012 report from Dr. Fischer, who
stated that he disagreed with the opinion of Dr. Evans. Dr. Fischer advised that he had last
examined appellant on October 30, 2012, and she continued to demonstrate complaints of
significant lumbar dysfunction. Appellant had a documented lumbar injury on August 7, 2009,
had immediate symptomology and her condition had not improved. Dr. Fischer stated that
diagnostic testing in 2009 showed lumbar abnormalities and reiterated his opinion that appellant
continued to be disabled as a result of the work injury.
By decision dated April 9, 2013, the hearing representative affirmed the termination of
compensation. The hearing representative found that Dr. Evans represented the weight of the
medical opinion.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.3 The right to medical
benefits for an accepted condition is not limited to the period of entitlement to compensation for
disability. To terminate authorization for medical treatment, OWCP must establish that appellant
no longer has residuals of an employment-related condition which require further medical
treatment.4
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.5 OWCP
regulations state that the examination by the selected physician is called a referee examination.6
It is well established that when a case is referred to a referee physician for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.7 A rationalized medical

3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

Furman G. Peake, 41 ECAB 361 (1990).

5

Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321(b).

7

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

4

opinion is an opinion of reasonable medical certainty that is supported by an explanation as to
the conclusion reached.8
ANALYSIS -- ISSUE 1
In the present case, a conflict in the medical evidence arose with respect to appellant’s
continuing employment-related condition. Attending physician Dr. Fischer found in January 6,
2010 and November 18, 2011 reports that appellant continued to have an employment-related
condition and disability from the August 7, 2009 employment injury. In a February 4, 2010
report, second opinion physician, Dr. Glatzer, found no objective evidence of a continuing
employment-related condition.
Pursuant to 5 U.S.C. § 8123(a), OWCP selected Dr. Evans as a referee physician.
Dr. Evans provided reports dated May 18 and December 28, 2010 and June 20, 2012. In the
reports, he provided a history of injury and medical treatment, provided results on examination
and a detailed review of the medical evidence. Dr. Evans opined that appellant did not have a
continuing employment-related condition. He explained that the objective findings were of a
degenerative nature that preexisted the employment injury. Dr. Evans found no objective
evidence of a continuing condition or disability causally related to the August 7, 2009
employment injury.
As noted above, when a referee physician provides an opinion that is based on a proper
background and supported by rationale, it is entitled to special weight. In this case, Dr. Evans
provided detailed reports that were based on a complete background and he supported his
opinion with medical rationale. The Board finds that Dr. Evans’ opinion was entitled to special
weight and represents the weight of the medical evidence in this case.
The Board accordingly finds that OWCP met its burden of proof to terminate
compensation for wage-loss and medical benefits as of August 24, 2012. The weight of the
medical evidence was properly found to rest with the referee physician, Dr. Evans.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail,
appellant must establish by the weight of the reliable, probative and substantial evidence that she
had an employment-related disability which continued after termination of compensation benefits.9
ANALYSIS -- ISSUE 2
As noted above, the medical evidence was sufficient to terminate compensation for wageloss and medical benefits effective August 24, 2012. Appellant submitted a new medical report
from Dr. Fischer dated November 19, 2012 that discussed examinations through
8

See, e.g., K.W., 59 ECAB 271 (2007).

9

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

5

October 30, 2012. It is appellant’s burden of proof to submit probative medical evidence
sufficient to reinstate compensation benefits after August 24, 2012.
The November 19, 2012 report of Dr. Fischer is not sufficient to meet appellant’s burden
of proof. Dr. Fischer indicated that appellant continues to have lumbar symptoms. The issue is
whether there is a relationship between the current lumbar condition and the August 7, 2009
employment injury. Dr. Fischer does not explain why a current disabling lumbar condition is
causally related to the specific employment injury in this case. He does not refer to current
diagnostic testing or explain why any findings would be related to the pushing of a cart on
August 7, 2009. The presence of symptoms does not itself establish causal relationship with
employment.10 In the absence of a rationalized medical opinion, the Board finds that appellant
did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation for wageloss and medical benefits effective August 24, 2012. Appellant did not establish an employmentrelated condition or disability after August 24, 2012.

10

See Richard B. Cissel, 32 ECAB 1910 (1981); William Nimitz, Jr., 30 ECAB 567 (1979).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 9, 2013 is affirmed.
Issued: November 20, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 15-70
Issued: March 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 14, 2014 appellant, through her attorney, filed a timely appeal of a July 8,
2014 Office of Workers’ Compensation Programs’ (OWCP) merit decision. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing a recurrence of
total disability beginning December 12, 2011, causally related to her accepted employment
injuries.
On appeal, counsel argued that appellant was not provided light-duty work within her
restrictions on or after December 12, 2011 and that she sustained a recurrence of total disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. The pertinent facts follow.
On June 21, 2011 appellant, then a 44-year-old city carrier, filed an occupational disease claim
alleging that, she developed pain in her neck and shoulders, left arm and numbness in her left
hand on April 1, 2011. She first attributed her condition to her employment duties of carrying a
heavy mailbag on her left shoulder and carrying mail in her arm on May 3, 2011. The employing
establishment noted that appellant did not work a full 40-hour workweek averaging 25 to 30
hours a week.
Appellant’s attending physician, Dr. William L. Chollak, a Board-certified orthopedic
surgeon, examined appellant on July 26, 2011 due to numbness and tingling in her left hand. He
diagnosed left cervical radiculopathy. Dr. Chollak found that appellant’s magnetic resonance
imaging (MRI) scan demonstrated herniated disc at T1-2 with cervical arthritis. He stated that
she could not perform her duties as a letter carrier. On August 17, 2011 Dr. Chollak stated that
appellant was totally disabled.
Dr. Shahla Vakili, a Board-certified neurologist, examined appellant on May 25, 2011
and diagnosed pain and numbness of the left shoulder, neck, arm, and hand. He opined that her
condition was most likely cervical radiculopathy. On October 5, 2011 Dr. Vakili attributed
appellant’s cervical radiculopathy to carrying mail at work.
On June 28, 2011 the employing establishment informed appellant that there was no
light-duty available.
Dr. Chollak indicated on October 19, 2011 that appellant could only perform desk work
without reaching or lifting with her left arm. He completed a duty status report on November 15,
2011 and indicated that she could lift or carry less than five pounds for eight hours a day.
Dr. Chollak also found that appellant could sit for eight hours a day stand and walk for one to
two hours at a time in an eight-hour day. He was capable of climbing stairs, kneeling, bending,
stooping, and twisting for one-hour a day. Appellant could not work outdoors, climb ladders,
reach above the shoulder, or drive anything other than a passenger car. Dr. Chollak stated that
she could drive a passenger car for one-hour at a time up to two hours a day. He indicated that
appellant could use her hands for grasping, fine manipulation, and keying for one to two hours a
day. Dr. Chollak restricted her to desk work with no reaching or lifting with her dominant left
arm.
On December 7, 2011 the employing establishment directed appellant to report for duty
on Saturday, December 10, 2011. Appellant was to be provided a light-duty work assignment
and official duties by her supervisor. The employing establishment approved her request for a
temporary light-duty assignment on December 10, 2011. On December 12, 2011 it provided
appellant a light-duty position which entailed casing mail using her right arm, no lifting more
than five pounds and standing walking, performing simple grasping, and fine manipulation for
one hour. Appellant was also required to perform curbside delivery in a postal vehicle for one
hour not to exceed two hours driving. She was required to perform Express Mail delivery, sweep
the floors and empty small containers of paper trash not to exceed five pounds. Appellant

2

refused this position stating that the job duties exceeded her medical restrictions on
December 12, 2011.
Dr. Vakili completed a duty status report on December 14, 2011 and indicated that
appellant could lift and carry less than five pounds for one hour. He found that she could sit for
six hours, stand and walk for one to two hours, climb stairs for one hour, kneel, bend, and stoop
for one hour and could not twist, grasp, type, key, or reach above the shoulder. Dr. Vakili found
that appellant could not drive, case or sort.
On December 17, 2011 Dr. Chollak stated that appellant could not drive, could not
perform outside work, and could not case mail. He indicated that she should not perform
overhead work or lifting. Dr. Vakili completed a report on July 4, 2012 and stated that appellant
could sit, stand, walk, stoop, climb stairs, and perform simple grasping as well as desk work up
to four hours a day with intermittent walking every 30 minutes.
On June 6, 2012 the postmaster informed appellant that there was no light-duty work
available within her restrictions.
Dr. Kenneth P. Heist, an osteopath and a Board-certified orthopedic surgeon, performed a
second opinion evaluation on behalf of OWCP on October 24, 2012. He diagnosed cervical,
dorsal, and lumbar sprains. Dr. Heist opined that appellant’s diagnosed conditions had resolved
and that she could return to full duty with no restrictions.
Dr. Megha Mendiratta, a Board-certified family practitioner, completed a note on
October 2, 2012 and stated that appellant could not hold more than 10 pounds with her left arm
and needed to perform limited lifting, carrying overhead, or loading and unloading. She stated
that he could not drive a heavy vehicle such as a mail truck as she did not have the appropriate
range of motion to turn the steering wheel. Dr. Mendiratta completed a duty status report on
October 15 and November 1, 2012 and indicated that appellant could lift and carry up to 10
pounds. She also found that he could push, pull, sit, stand, climb stairs, knee bend, and stoop for
eight hours. Appellant was capable of walking and driving a passenger car for six hours a day.
Dr. Mendiratta stated that he could perform simple grasping, typing, and keying for eight hours a
day. Appellant could not reach above the shoulder, climb ladders, or work outside.
On November 19, 2012 OWCP accepted appellant’s claim for left shoulder sprain,
thoracic sprain, lumbar sprain, and neck sprain. Appellant then filed claims for compensation
requesting wage-loss compensation from July 23, 2011 through November 16, 2012 and
November 17 through 30, 2012. In a letter dated November 28, 2012, the employing
establishment stated that she had consistently refused any job offers provided to her. Appellant
responded on November 30, 2012 and stated that she had requested light duty and had been told
that there was no light duty available.
Appellant filed an additional claim on December 18, 2012 requesting compensation for
leave without pay from December 1 through 14, 2012. She informed OWCP that she worked
until June 28, 2011 when the employing establishment no longer had work within her
restrictions. Appellant reported to work on December 12 and 14, 2011 but the offered positions
were not within her restrictions. She did not return to work after December 14, 2011.

3

By decision dated December 27, 2012, OWCP terminated appellant’s compensation
benefits effective that date.
Counsel requested an oral hearing before an OWCP hearing representative. By decision
dated June 26, 2013, the hearing representative found that OWCP met its burden of proof to
terminate appellant’s entitlement to wage-loss compensation effective December 27, 2012. He
found that Dr. Heist’s report represented the weight of the medical evidence and established that
there was no clinical or diagnostic findings of cervical radiculopathy and that appellant’s
restricted range of motion was caused by preexisting degenerative changes. The hearing
representative concluded that appellant was not disabled from work due to her accepted
conditions.
Appellant appealed the June 26, 2013 decision, the hearing representative’s decision to
the Board. By decision dated July 28, 2014, the Board found that it had failed to meet its burden
of proof to terminate appellant’s wage-loss compensation benefits effective December 27, 2012
due to an unresolved conflict of medical opinion evidence between appellant’s physician,
Dr. Vakili and OWCP’s referral physician, Dr. Heist.2 The facts and circumstances of the case
as it involves the termination of appellant’s compensation benefits are set out in the Board’s
prior decision and adopted herein by reference.
Appellant filed additional claims for compensation for the period December 15 through
March 8, 2013. On December 27, 2012 the employing establishment informed her that part-time
flexible clerk positions were available within her restrictions. On July 22, 2013 it stated that
there was no “light-duty” work available for appellant.
On July 23, 2013 appellant filed a notice of recurrence alleging a recurrence of disability
on December 12, 2011 due to her employment injury. She stated that she was sent home by the
employing establishment because there was no work available within her work restrictions.
OWCP contacted the employing establishment which stated that appellant stopped work
on June 28, 2011 and used sick leave through July 27, 2011. Appellant returned to work on
December 10, 2011 for two hours and was not scheduled on December 11, 2011. She returned to
work on December 12, 2011 for 3.6 hours.
In a letter dated September 18, 2013, OWCP requested that appellant provide additional
factual and medical evidence regarding her alleged recurrence of disability. Appellant responded
on October 15, 2013 and stated that the position offered on December 10, 2011 exceeded her
work restrictions as she could not deliver mail. She stated that she was required to case mail for
Route 9 and deliver part of that route in a postal truck. Appellant informed her supervisor that
she could not deliver mail. She filed a leave form and went home. On December 12, 2011
appellant reported to work and was directed to case mail. She was then provided with the
December 12, 2011 light-duty position description which she felt exceeded her work restrictions.
Appellant completed an OWCP questionnaire on October 15, 2013 and stated that her
light-duty position was withdrawn because the assignment exceeded her restrictions. She listed
2

Docket No. 13-2117 (issued July 28, 2014).

4

her accepted work conditions as cervical radiculopathy and stated that use of her left arm made
her condition worse.
By decision dated October 23, 2013, OWCP denied appellant’s claim for recurrence of
disability finding that she had not established the withdrawal of a light-duty assignment.
Appellant requested an oral hearing on October 29, 2013.
Counsel appeared at the oral hearing on April 22, 2014. He stated that appellant was
currently retired on disability. Counsel stated that the period of the recurrence was from
December 12, 2011 through December 27, 2012. He noted that the job description on
December 12, 2011 required appellant to drive a mail truck which exceeded her medical
restrictions.
By decision dated July 8, 2014, the hearing representative denied appellant’s claim for
recurrence of disability beginning December 12, 2011 finding that the medical evidence did not
establish that she could not perform the offered limited-duty position.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.3
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 of
record establish that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative, and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty requirements.4 Furthermore, appellant has the burden
of establishing by the weight of the substantial, reliable, and probative evidence, a causal
relationship between her recurrence of disability commencing December 12, 2011 and her
accepted employment injury.5 This burden includes the necessity of furnishing medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
3

20 C.F.R. § 10.5(x).

4

Terry R. Hedman, 38 ECAB 222 (1986).

5

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-9 (1982).

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

ANALYSIS
OWCP accepted appellant’s occupational disease claim for left shoulder sprain, thoracic
sprain, lumbar sprain, and neck sprain on November 19, 2012. Appellant stopped work on
June 28, 2011 and used sick leave through July 27, 2011.
Appellant’s attending physicians, Drs. Chollak and Vakili provided a diagnosis of
cervical radiculopathy as well as work restrictions based on this condition beginning in 2011.
OWCP has not accepted cervical radiculopathy as resulting from appellant’s employment.
Drs. Chollak and Vakili did not provide any medical opinion evidence which indicated which
work restrictions were due to appellant’s accepted sprains and which were due to her diagnosed
condition of cervical radiculopathy which was not accepted by OWCP. Appellant returned to
light-duty work for a few hours on December 10, 2011 and again on December 12, 2011. She
stated that she did not receive a light-duty job description on December 10, 2012 and the record
does not contain a position description of that date. Appellant then declined the offered
light-duty position on December 12, 2011 after working for a few hours alleging that the job
duties exceeded her work restrictions.
The medical evidence from appellant’s attending physicians establishes that appellant
was capable of performing light-duty work on December 12, 2011. Dr. Chollak completed a
duty status report on November 15, 2011 and indicated that appellant could lift or carry less than
five pounds for eight hours a day. He opined that she could sit for eight hours a day, stand and
walk for one to two hours at a time in an eight-hour day. Appellant was capable of climbing
stairs, kneeling, bending, stooping, and twisting for one hour a day. She could not work
outdoors, climb ladders, reach above the shoulder, or drive anything other than a passenger car.
Dr. Chollak stated that appellant could drive a passenger car for one hour at a time up to two
hours a day. He indicated that she could use her hands for grasping, fine manipulation, and
keying for one to two hours a day. Dr. Chollak restricted appellant to desk work with no
reaching or lifting with her dominant left arm.
On December 14, 2011 Dr. Vakili indicated that appellant could lift and carry less than
five pounds for one hour. He found that she could sit for six hours, stand and walk for one to
two hours, climb stairs for one hour, kneel, bend, and stoop for one hour and could not twist,
grasp, type, key, or reach above the shoulder. Dr. Vakili found that appellant could not drive,
case or sort mail.
On October 2, 2012 Dr. Mendiratta limited appellant to lifting and carrying 10 pounds
with her left arm and restricted activities of carrying overhead or loading and unloading. She
stated that appellant could not drive a heavy vehicle such as a mail truck as she did not have the
appropriate range of motion to turn the steering wheel. Appellant could not reach above the
shoulder, climb ladders, or work outside.
While these reports provide medical restrictions, the reports are not sufficiently detailed
or well reasoned to establish that the work restrictions listed are causally related to appellant’s
accepted employment injuries. Without medical evidence explaining how and why the work
restrictions, particularly related to driving a postal vehicle and working outside, the restrictions
not met by the employing establishment’s December 12, 2011 light-duty job offer, are due to the

6

accepted conditions of strains these reports are not sufficient to establish that appellant was
disabled on or after December 12, 2011 due to her accepted employment injury. As appellant’s
physicians diagnosed an additional condition not excepted by OWCP, the medical evidence must
specify the diagnosed condition which required the restriction, rather than merely listing all
restrictions without qualification. Appellant cannot meet her burden of proof to establish a
recurrence of disability, unless the medical evidence establishes that her disability was due to her
accepted employment injury. In this case it is unclear whether the restrictions, upon which the
light-duty assignment was made, were specifically to accommodate her work-related injury.
Furthermore given the discrepancies between the accepted and diagnosed conditions, the medical
evidence is not sufficiently detailed to establish appellant’s employment-related physical
limitations.
Due to the deficiencies in the medical evidence, the Board finds that appellant has not
met her burden of proof in establishing a recurrence of total disability on or after
December 12, 2011.
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 the medical evidence is not sufficiently detailed and well-reasoned
to establish that appellant sustained a recurrence of total disability on or after December 12, 2011
due to her accepted employment injuries.

7

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 26, 2015
Washington, DC

Patricia Howard Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, Tallahassee, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1403
Issued: March 10, 2016

Case Submitted on the Record

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

On June 15, 2015 appellant filed an appeal from a May 27, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which affirmed a November 14, 2014
decision terminating medical benefits effective November 16, 2014. The appeal was docketed as
No. 15-1403.1
This case has previously been before the Board. In a November 23, 2011 decision, the
Board vacated a February 3, 2011 OWCP decision and remanded the case to OWCP to refer
appellant, an updated statement of accepted facts, and the medical evidence of record to an
appropriate Board-certified specialist for an examination, diagnosis, and a rationalized opinion as

1

Appellant submitted additional evidence with her appeal to the Board. The Board’s review is limited to
evidence which was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 121262 (issued December 5, 2012).

to whether appellant sustained an injury on January 5, 2010 and, if so, did she have any
concurrent disability for work on or after that date.2 Subsequent to the Board’s November 23,
2011 decision, OWCP referred appellant to Dr. R. Derry Crosby, a Board-certified osteopath
specializing in orthopedic surgery, for a second opinion evaluation. In reports dated February 27
and April 19, 2012, Dr. Crosby advised that appellant sustained cervical and thoracic strains on
January 5, 2010 and had appropriate treatment for the conditions. He indicated that her strains
had resolved at the time of his examination on February 27, 2012. Dr. Crosby concluded that no
treatment was indicated for appellant’s neck and thoracic region, and that she had no disability or
need for restricted duty as far as the neck or thoracic spine were concerned. Following a
May 11, 2012 initial denial, on January 22, 2013 OWCP accepted that appellant sustained
thoracic and cervical sprains, ceased by February 27, 2012. By decision dated March 28, 2013,
OWCP terminated appellant’s wage-loss compensation and medical benefits, effective
February 27, 2012, because Dr. Crosby advised on February 27, 2012 that her cervical and
thoracic sprains had resolved. In an August 4, 2014 decision, the Board found that OWCP met
its burden of proof to terminate appellant’s wage-loss compensation effective February 27, 2012
because she had no employment-related disability. The Board further found that OWCP did not
meet its burden of proof to terminate appellant’s medical benefits because it had not provided her
with a required pretermination notice.3 The law and facts of the prior Board decisions are
incorporated herein by reference.
On September 30, 2014 OWCP issued a notice of proposed termination of medical
benefits, finding that, based on the opinion of Dr. Crosby, appellant no longer had residuals of
the accepted neck and thoracic sprains. In correspondence dated October 22, 2014, appellant
disagreed with the proposed termination, asserting that the medical evidence established
continuing residuals.4 By decision dated November 14, 2014, OWCP finalized the termination
of medical benefits, effective November 16, 2014. It found that the weight of the medical
opinion evidence rested with Dr. Crosby.
Appellant timely requested a review of the written record. She submitted treatment notes
dated September 4 and October 22, 2012 in which Dr. Christopher S. Rumana, a Board-certified
neurosurgeon, noted a chief complaint of neck and right arm pain, low back and leg pain, and
reported that appellant had a slip and fall at work in 2010. He discussed neck examination
findings and diagnosed thoracic myofasciitis/sprain and neck pain. Dr. Rumana indicated that
appellant could be having myofascial neck pain or right cervical radiculopathy and
2

Docket No. 11-1166 (issued November 23, 2011). On January 5, 2010 appellant, a laundry supervisor, filed a
traumatic injury claim, alleging that she was injured when she fell to the floor that day. She returned to regular duty
on March 1, 2010 and submitted claims for intermittent compensation beginning February 23, 2010. On April 30,
2010 OWCP denied the claim. In a September 28, 2010 decision, an OWCP hearing representative affirmed the
April 30, 2010 decision. In a merit decision dated February 3, 2011, OWCP denied modification of the prior
decisions. The record also indicates that on September 8, 2005 OWCP accepted aggravation of lumbar
radiculopathy, adjudicated by OWCP under file number xxxxxx606. The instant claim was adjudicated under file
number xxxxxx486.
3

Docket No. 13-1940 (issued August 4, 2014).

4

The letter indicated that 20 enclosures were included. However, the record contains no enclosures forwarded at
that time.

2

recommended a cervical magnetic resonance imaging (MRI) scan.
In reports dated
December 11, 2012 to July 28, 2014, Dr. Joshua E. Fuhrmeister, Board-certified in
anesthesiology and pain medicine, noted a two-year history of neck pain which could be related
to an employment injury, and that appellant had been in a motor vehicle accident in 2002. He
described her complaints of neck and back pain and muscle aches and indicated that examination
of the cervical spine demonstrated mild tenderness and mild-to-moderate limitation of range of
motion. Dr. Fuhrmeister noted that a November 9, 2012 MRI study of the cervical spine showed
minor disc bulging with no significant foraminal narrowing. He opined that appellant’s pain was
likely multifactorial, including cervical radiculitis and chronic cervicothoracic spasms.
By decision dated May 27, 2015, an OWCP hearing representative discussed
Dr. Rumana’s reports and found the weight of the medical evidence rested with the opinion of
Dr. Crosby. She affirmed the November 14, 2014 decision.
The Board finds that this case is not in posture for decision. Appellant properly filed a
timely request for review of the written record before the Branch of Hearings and Review. She
submitted new and relevant medical evidence not previously considered. Specifically, appellant
submitted numerous medical and diagnostic reports dated September 4, 2012 to July 28, 2014
from Dr. Fuhrmeister and Dr. Rumana. While the hearing representative briefly mentioned that
Dr. Rumana’s reports showed basically normal findings on examination, she did not mention
Dr. Fuhrmeister’s reports at all.5 Thus, OWCP did not review all evidence received prior to the
issuance of the May 27, 2015 decision.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim which was properly submitted to OWCP
prior to the time of issuance of its final decision be reviewed and addressed by OWCP.6 Because
OWCP did not consider the new medical evidence submitted by appellant, the Board cannot
review such evidence for the first time on appeal.7 The case will therefore be remanded to
OWCP to enable it to properly consider all of the evidence. Following such further development
as OWCP deems necessary, it shall issue an appropriate de novo final decision on the claim.8

5

See William A. Couch, 41 ECAB 548 (1990) (OWCP is obligated to consider all evidence properly submitted by
a claimant and received by it before a final decision is issued).
6

Id.

7

Supra note 1.

8

See E.P., Docket No. 14-0278 (issued February 26, 2014).

3

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 27, 2015 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: March 10, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Washington, DC, Employer
__________________________________________

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

Docket No. 11-429
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from the November 23, 2010
decision of the Office of Workers’ Compensation Programs’ (OWCP), which denied his request
for reconsideration on the grounds that it was untimely filed and failed to establish clear
evidence of error. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by
OWCP. The last merit decision of record was OWCP’s August 3, 2006 decision. Because more
than one year has elapsed between the last merit decision and the filing of this appeal on
December 14, 2010, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On February 14, 2006 appellant, then a 31-year-old criminal investigator, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a right hand injury on February 9,
2006 when his pelican case slipped and crushed his hand against the rear passenger car door. He
noted that the pelican weighed about 80 pounds and that he felt a sharp pain running from his
fingertips all the way down to his forearm and elbow. Appellant further noted that his right
finger, which had previously been broken during sergeant training, was twisted 90 degrees to the
right. He notified his supervisor on February 14, 2006.
In a March 8, 2006 medical report, Dr. David A. Blum, Board-certified in internal
medicine, reported that appellant was injured at work on February 9, 2006 when he was carrying
a heavy box filled with guns and equipment which began to fall and crushed his hand between
the box and a car door. He stated that appellant had a sudden onset of numbness and electrical
shocks in the right hand. Upon physical examination, Dr. Blum reported that appellant had a
positive Tinel’s over the carpal tunnel. He diagnosed right carpal tunnel syndrome, right
scapholunate tear and mild pain in the right finger associated with an old mallet finger.
In a May 8, 2006 medical report, Dr. Blum reported that appellant had swelling on the
dorsal aspect of the wrist. A magnetic resonance imaging (MRI) scan of the right wrist revealed
tilting of the lunate. Dr. Blum diagnosed right wrist pain and possible partial scapholunate
ligament tear.
In a May 26, 2006 nerve conduction study (NCS), Dr. Scott D. Tannenbaum, Boardcertified in physical medicine and rehabilitation, reported that the study showed a strong
possibility of carpal tunnel syndrome.
By letter dated June 27, 2006, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and asked that he respond to the provided questions within 30 days.
In a February 14, 2006 narrative statement, appellant reported that the pelican case he
was carrying slipped and crushed his hand against the car door. He stated that Jeff Smith
witnessed the incident.
In a February 14, 2006 witness statement, Mr. Smith stated that he was loading gear with
appellant into the back of his government vehicle when he heard appellant yell out in pain. He
walked around the car and saw appellant’s swat box half way in the vehicle and also lying on the
street. Appellant informed Mr. Smith that the case slipped and smashed his hand.

2

In a March 8 and July 5, 2006 medical treatment status report form, appellant’s physician
reported that appellant was having surgery on his right hand and was restricted from using it post
surgery.
In a May 1, 2006 medical report, Dr. Michael Zlatkin, a Board-certified diagnostic
radiologist, reported that the MRI scan of appellant’s right wrist showed subtle alterations at the
scapholunate ligament and secondary evidence of scapholunate instability.
In a July 6, 2006 narrative statement, appellant reported that he had not sustained any
other injuries since February 9, 2006 and that he had worn a hand brace since the date of his
injury.
By decision dated August 3, 2006, OWCP denied appellant’s claim because the evidence
failed to establish that the claimed medical condition was related to the accepted February 9,
2006 employment incident. It specifically noted that he did not indicate on his CA-1 form that
he injured his wrist on February 9, 2006.
In a July 5, 2006 medical report, Dr. Blum reported that appellant complained of
numbness in his right hand. The NCS revealed right carpal tunnel syndrome. Dr. Blum stated
that appellant’s right-sided symptoms only started after his work-related injury and thus, his
work-related injury was the cause of his symptoms. He recommended an electromyogram test.
In a July 29, 2006 electrodiagnostic evaluation, Dr. Tannenbaum reported that the study
was consistent with carpal tunnel syndrome, right being worse than left.
On November 1, 2010 appellant requested reconsideration of the August 3, 2006 OWCP
decision. In support of his request, he stated that he was submitting additional evidence,
including a July 5, 2006 medical report from Dr. Blum, which states that his injury was
employment related. Appellant also stated that he should have been more specific on his CA-1
form and included his wrist when stating that he had a hand injury. In addition to Dr. Blum’s
July 5, 2006 medical report and Dr. Tannenbaum’s July 29, 2006 electrodiagnostic evaluation,
appellant resubmitted medical evidence previously of record.
By decision dated November 23, 2010, OWCP denied appellant’s reconsideration request
as untimely filed and failing to establish clear evidence of error. It specifically noted that
Dr. Blum’s July 5, 2006 medical report was not received until after OWCP’s August 3, 2006
decision on October 11, 2006 and thus, did not establish an error in OWCP’s decision.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.3 The

3

Id. at § 10.607(a).

3

Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must
submit evidence relevant to the issue that was decided by OWCP. The evidence must be
positive, precise and explicit and must be manifested on its face that OWCP committed an error.5
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.6
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.7 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.8 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.9 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.10
ANALYSIS
In its November 23, 2010 decision, OWCP properly determined that appellant failed to
file a timely application for review. An application for reconsideration must be sent within one
year of the date of the OWCP decision.11 A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.12 As appellant’s November 1, 2010
request for reconsideration was submitted more than one year after the date of the last merit
decision of record on August 3, 2006, it was untimely. Consequently, he must demonstrate clear
evidence of error by OWCP in denying his claim.13
4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

Annie L. Billingsley, 50 ECAB 210 (1998).

7

Jimmy L. Day, 48 ECAB 652 (1997).

8

Id.

9

Id.

10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

11

Supra at note 3.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

13

See Debra McDavid, 57 ECAB 149 (2005).

4

The Board finds that appellant has not established clear evidence of error on the part of
OWCP. In support of his request for reconsideration, appellant submitted a July 5, 2006 medical
report from Dr. Blum, who diagnosed carpal tunnel syndrome and stated that, because his
symptoms started after his injury, his work-related injury was the cause of his symptoms.
However, this evidence is insufficient to establish that OWCP erred in its denial of appellant’s
claim.14 Dr. Blum did not provide detailed medical rationale explaining his conclusion that
appellant’s carpal tunnel syndrome was employment related. Further, this evidence was
submitted after OWCP’s August 3, 2006 merit decision. The Board notes that clear evidence of
error is intended to represent a difficult standard. Evidence, such as a detailed well-rationalized
medical report which if submitted before the merit denial might require additional development
of the claim, is insufficient to establish clear evidence of error.15 Neither Dr. Blum nor
Dr. Tannenbaum’s reports raise a substantial question as to the correctness of OWCP’s August 3,
2006 merit decision or demonstrate clear evidence of error.
On appeal, appellant stated that he should have included wrist injury on his CA-1 form
and that his injury was related to the February 9, 2006 employment incident. While he addressed
his disagreement with OWCP’s decision to deny his claim for compensation, his general
allegations do not establish clear evidence of error as his arguments do not raise a substantial
question as to the correctness of OWCP’s decision. The Board notes that the underlying issue is
medical in nature and the medical evidence submitted was not sufficient to shift the weight of the
evidence in appellant’s favor and establish that OWCP erred in denying his claim.
Appellant also resubmitted a number of medical reports that OWCP had already
evaluated in its August 3, 2006 decision. The resubmission of this evidence does not raise a
substantial question as to the correctness of OWCP’s decision.16 The submission of a detailed
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of
error.17
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in his favor and raise a substantial question as to the
correctness of OWCP’s decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

14

See W.R., Docket No. 09-2336 (issued June 22, 2010).

15

Supra note 12, Chapter 2.1602.3(c) (March 2011).

16

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
17

D.G., 59 ECAB 455 (2008); supra note 12, Chapter 2.1602.3(c) (January 2004).

5

ORDER
IT IS HEREBY ORDERED THAT the November 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6