United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN FRANCISCO VETERANS
ADMINISTRATION HEALTH CARE SYSTEM,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 19-1832
Issued: July 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 30, 2019 appellant filed a timely appeal from an August 7, 20191 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision dated February 28, 2019 to the filing of this appeal, pursuant

1

Appellant also appealed from a purported June 7, 2019 decision in OWCP Master File No. xxxxxx827. See infra
note 5. However, there is no OWCP decision of record dated June 7, 2019 in either Master File No. xxxxxx827 or
the current file, OWCP File No. xxxxxx244. Additionally, there is no final adverse decision issued within 180 days
of the filing of the current appeal in Master File No. xxxxxx827 over which the Board may properly exercise
jurisdiction.

to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 13, 2016 appellant, then a 35-year-old human resources assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 15, 2016 she pulled a muscle in her right arm
when she reached for some papers while sitting at her desk while in the performance of duty.
OWCP accepted the claim for right arm/shoulder strain on May 27, 2016. It paid appellant wageloss compensation benefits on the supplemental rolls from May 9 to August 20, 2016 and again
from October 16 to 28, 2016.5
Appellant filed claims for wage-loss compensation (Form CA-7) for total disability for the
period August 21 to October 14, 2016.
By decision dated October 26, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period commencing August 21, 2016 and continuing.
On November 9, 2016 appellant requested an oral hearing before an OWCP hearing
representative, which was held on March 31, 2017.
On December 9, 2016 appellant filed a Form CA-7 wage-loss compensation claim for the
period November 28 through December 9, 2016.

2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 7, 2019 nonmerit 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.
4

Docket No. 17-1514 (issued April 10, 2018).

5

OWCP noted that appellant filed an occupational disease claim (Form CA-2) alleging a right shoulder injury on
or about March 15, 2016, OWCP File No. xxxxxx827. This claim was accepted for right shoulder superior glenoid
labrum lesion and right upper limb ulnar nerve lesion. OWCP noted that the instant claim had been administratively
combined with OWCP File No. xxxxxx827, with the latter OWCP File designated as the master file number.

2

By decision dated June 15, 2017, OWCP’s hearing representative affirmed the October 26,
2016 denial of the claim.
On July 3, 2017 appellant filed an appeal with the Board. By decision dated April 10,
2018, the Board affirmed the June 15, 2017 hearing representative’s decision.6 The Board noted
that appellant had claimed wage-loss compensation from August 21, 2016 and continuing, but
found the medical evidence of record was insufficient to establish total disability.
OWCP continued to receive progress reports from Dr. Mark H. Chan, an attending Boardcertified physiatrist and pain medicine physician, regarding appellant’s medical treatment,
diagnoses, and employment status during 2017. It also received reports from Kelly MarisWeissburg, a nurse practitioner; Dr. Mathias Masem, a Board-certified orthopedic and hand
surgeon; and Dr. Fred Blackwell, a Board-certified orthopedic surgeon, regarding appellant’s
medical status in 2017. Dr. Blackwell in a series of work status reports from October 13 through
Decembers 18, 2017 indicated that appellant was capable of working four to five hours per day
with restrictions for the period October 16, 2017 to January 18, 2018.
By decision dated December 5, 2017, OWCP expanded acceptance of appellant’s claim to
include the conditions of right shoulder superior glenoid labrum lesion, right shoulder synovitis,
and tenosynovitis.
On April 11, 2018 appellant requested reconsideration regarding the denial of her wageloss compensation commencing August 21, 2016 and submitted additional medical evidence from
Dr. Blackwell regarding her medical status in 2018. In work status reports dated from January 5
through June 18, 2018, Dr. Blackwell opined that appellant was capable of working four to five
hours per day for the periods January 5 to February 5, 2018 and February 20 to July 30, 2018. In
an April 6, 2018 report, he found appellant was totally disabled from working at that time. In
reports dated April 20, May 1, and June 5, 2018, Dr. Blackwell found appellant could continue
working from home. OWCP also received 2018 reports from Dr. Juon-Kin K. Fong, a Boardcertified orthopedic surgeon.
By decision dated July 10, 2018, OWCP denied modification of its prior decision.
Following the July 10, 2018 decision, OWCP received work status reports and narrative
reports from Dr. Blackwell addressing appellant’s need for surgery and her ability to perform
modified work for four to five hours per day from home.
On December 3, 2018 appellant requested reconsideration. In support of her request for
reconsideration she submitted progress reports and work status reports finding she was capable of
working four to five hours per day with restrictions from Dr. Blackwell dated June 19, 2018
through February 8, 2019 and supplemental reports from Dr. Mohinder Nijjar, a Board-certified
orthopedic surgeon, dated August 30 and October 5, 2018. Appellant also resubmitted reports
from her treating physicians as well as electromyography and nerve conduction velocity
(EMG/NCV) scan/study, and magnetic resonance imaging (MRI) scans previously of record.

6

Id.

3

By decision dated February 28, 2019, OWCP denied modification finding that none of the
new medical evidence addressed disability during the ongoing claimed period. It also noted that
appellant had been paid wage-loss compensation for intermittent periods for missed work during
the period October 8, 2017 through January 4, 2019.
Appellant resubmitted an August 17, 2016 MRI scan report and an October 6, 2016
EMG/NCV scan study. OWCP also received work status and progress reports from Dr. Blackwell
regarding appellant’s physical status in 2017, 2018, and 2019.
On June 3, 2019 appellant requested reconsideration and referenced her occupational
disease claim in OWCP File No. xxxxxx827. Following her request, OWCP received May 28 and
June 4, 2019 disability certificates for the period May 28 to July 10 2019 from Dr. Juon-Kin K.
Fong, a Board-certified orthopedic surgeon, indicating that appellant was disabled from work.
OWCP also received a June 3, 2019 letter from Dr. Blackwell addressing reduction of
appellant’s work hours for the period April 4 to 26, 2019. A progress report from Dr. Blackwell
dated June 28, 2019 included diagnoses of right rotator cuff tendinitis with impingement and
probable superior labral anterior to superior (SLAP) lesion. He added that appellant’s shoulder
was stable although she had noted increased difficulties. In a July 19, 2019 progress report,
Dr. Blackwell diagnosed chronic cervical sprain and strain and right rotator cuff tendinitis with
impingement and probable SLAP lesion, noted that an additional MRI scan may be needed to
verify the SLAP lesion, and added that appellant was capable of performing modified duty.
Additionally, appellant submitted work status reports from Dr. Blackwell concerning her work
capacity and diagnoses of ulnar neuropathy, right shoulder derangement syndrome, right cubital
tunnel release, and right shoulder sprain. In the May 24, 2019 work status report, Dr. Blackwell
found appellant was disabled from work for the period May 24 through July 31, 2019. In work
status reports dated July 12 and 19, 2019, he found that appellant was disabled from work for the
period July 12 through August 31, 2019.
By decision dated August 7, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

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

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OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.11
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Thus, she is not entitled to a review of the merits based on either the first
or second requirements under section 10.606(b)(3).12
However, with respect to the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3), appellant submitted numerous reports from Drs. Fong and Blackwell addressing
her medical treatment, disability status, and work restrictions limiting her to working four to five
hours per day in 2017, 2018, and 2019. In its August 7, 2019 decision, OWCP denied appellant’s
request for a merit review as it found the evidence submitted irrelevant or immaterial. It only
noted that the evidence submitted with her reconsideration request included a May 25, 2019
handwritten statement and numerous medical documentations.
Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is before
OWCP at the time of its final decision,13 it is necessary that OWCP review all evidence submitted
by a claimant and received by OWCP prior to issuance of its final decision. FECA provides that
OWCP shall determine and make findings of fact in making an award for or against payment of
8
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
9

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
10

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

11

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

12

Supra note 8 at § 10.606(b)(3)(i) and (ii).

13
R.P., Docket No. 19-0301 (issued August 21, 2019); K.L., Docket No. 16-1341 (issued December 20, 2016);
E.Z., Docket No. 14-0274 (issued March 16, 2015); Linda Johnson, 45 ECAB 439 (1994).

5

compensation after considering the claim presented by the employee and after completing such
investigation as OWCP considers necessary with respect to the claim.14
The Board finds that it is unclear what medical documentation OWCP reviewed in denying
appellant’s request for reconsideration as there was no discussion or identification of any specific
report submitted on reconsideration. In this case, OWCP initially accepted the claim for right
shoulder strain, but by decision dated December 5, 2017, it expanded acceptance of appellant’s
claim to include the conditions of right shoulder superior glenoid labrum lesion, right shoulder
synovitis, and tenosynovitis, it was therefore necessary for OWCP to determine whether any of
the medical reports submitted on reconsideration attributed appellant’s disability to any of
appellant’s accepted conditions, and whether these reports had been previously reviewed following
the expansion of appellant’s accepted right shoulder conditions. Therefore, the case is remanded
to OWCP for a discussion and identification of the medical evidence appellant submitted in
connection with her reconsideration request, to be followed by the issuance of an appropriate
decision regarding her reconsideration request.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 21, 2020
Washington, DC

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

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

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

14
5 U.S.C. § 8124(a); 20 C.F.R. § 10.126; see J.J., Docket No. 19-0448 (issued December 30, 2019); see Hubert
Jones, Jr., 57 ECAB 467 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
U.S. POSTAL SERVICE, NORTHERN OHIO
PERFORMANCE CLUSTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 12-1224
Issued: November 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 15, 2012 appellant, through his reprensentative, filed timely appeals from
April 16, 2012 merit decisions 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 appellant met his burden of proof to establish that he has
more than a 19 percent permanent impairment of his left leg; (2) whether he received a
$13,584.24 overpayment of compensation; and (3) whether OWCP abused its discretion by
refusing to waive recovery of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on March 6, 2003 appellant, then a 48-year-old mechanic, sustained
a left knee strain, left knee contusion, lumbar strain/sprain and left elbow contusion due to a
falling on ice and snow at work.2 It also accepted that on August 25, 2003 he sustained a lumbar
strain and lumbar disc herniations when he straightened up after having worked under the
dashboard of his work vehicle.3
In an August 3, 1991 report, Dr. Raul de la Iglesia, an attending osteopath, determined
that appellant had eight percent permanent impairment of his left leg under the standards of the
revised third edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (rev. 3rd ed. 1991). In a December 6, 1991 decision, OWCP granted
appellant a schedule award for an eight percent permanent impairment of his left leg. The award
ran for 23.04 weeks from September 21, 1991 to February 29, 1992.
On November 19, 2005 OWCP’s medical adviser evaluated the findings of Dr. Timothy
Morley, an attending osteopath, to determine that appellant’s limited left leg range of motion
equaled a 19 percent permanent impairment under the standards of the fifth edition of the
A.M.A., Guides (5th ed. 2001). In a January 6, 2006 decision, OWCP granted appellant a
schedule award for a 19 percent permanent impairment of his left leg. The award ran for 54.72
weeks from June 1, 2005 to June 19, 2006. When OWCP granted the January 6, 2006 schedule
award for a 19 percent left leg impairment, it neglected to subtract the eight percent schedule
award for the left leg previously granted on December 6, 1991.4
Appellant claimed entitlement to increased schedule award compensation due to his work
injuries. In a December 13, 2009 report, Dr. William Grant, an attending Board-certified
internist, described appellant’s medical history and detailed the findings of his physical
examination including range of back motion. He concluded that appellant had 32 percent whole
person impairment.
In an August 25, 2010 report, Dr. Brian M. Tonne, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, stated that Dr. Grant did not provide a rating of appellant’s
impairment in accordance with the sixth edition of the A.M.A., Guides (6th ed. 2009). He stated
that the tables referenced by Dr. Grant did not appear on the pages in the sixth edition of the
A.M.A., Guides that he ostensibly cited. Dr. Tonne noted that Dr. Grant provided a whole person
impairment based on spinal pathology, but pointed out that impairment ratings for the whole
person or of the back itself were not compensable. He discussed the methods for rating back
conditions which caused impairment in the lower extremities. Dr. Tonne recommended that

2

On May 2, 2002 appellant sustained a lower back injury due to lifting a tire onto the back of a tow truck. The
claim was considered to be an administrative quick closure with limited medical expenses authorized.
3

OWCP had previously accepted that on July 13, 1988 appellant sustained contusions and strains/sprains of his
neck, back, left leg, left knee and left shoulder and a medial meniscus tear in his left knee. On February 27, 1989
appellant underwent a left partial meniscectomy which was authorized by OWCP.
4

In an October 25, 2011 letter, OWCP advised appellant of its preliminary determination that he received a
$13,584.24 overpayment of compensation due to OWCP’s failure to subtract the eight percent previously awarded.

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Dr. Grant be asked to provide clarification of his report or that an opinion on appellant’s permanent
impairment be obtained from another physician.
In a June 9, 2011 letter, OWCP asked Dr. Grant to clarify is rating of appellant’s
permanent impairment under the standards of the sixth edition of the A.M.A., Guides. It
provided him until August 11, 2011 to respond; but he did not respond within the allotted time.
In August 2011, OWCP referred appellant to Dr. Robert J. Nickodem, a Board-certified
orthopedic surgeon, for a second opinion examination and an opinion on the permanent
impairment of left leg under the sixth edition of the A.M.A., Guides.
In a September 13, 2011 report, Dr. Nickodem provided results on examination. He stated
that, using Table 16-23 on page 549 of the sixth edition of the A.M.A., Guides, appellant had 10
percent impairment of the left knee based on seven degrees of flexion contracture. Flexion to
120 degrees was a 0 percent impairment and therefore there was a 10 percent impairment of the
left knee under Table 16-3. Dr. Nickodem stated that, using Table 16-25 on page 550, the range
of motion International Classification of Functioning (ICF), disability and health score would be
1. Using Table 16-6 on page 516, the functional history adjustment would be grade 2 based on
the AAOS score of 60. Using Table 16-17 on page 545, the functional history net modifier
would be 1 because the functional history of 2 minus range of motion class 1 would be a net
adjustment of 1, and therefore there would be a 5 percent increase above the 10 percent
impairment. This calculation gave appellant a total left leg impairment of 10.5 percent, which
rounded up to 11 percent. Dr. Nickodem concluded:
“Therefore, it is my opinion that the claimant has an 11 percent impairment of the
left lower extremity due to the allowed diagnosis of left medial meniscus tear.
There is no ratable impairment in the right lower extremity and there is no ratable
impairment in the left lower extremity based on the allowed conditions for
[appellant’s] lumbar spine of either lumbar sprain, back sprain/strain or contusion
or lumbar disc herniation.”
On October 13, 2011 Dr. Tonne reviewed the September 13, 2011 report of
Dr. Nickodem. He agreed with Dr. Nickodem’s assessment that appellant’s accepted lumbar
conditions were not ratable due to the absence of any radiculopathy to the lower extremities.
Dr. Tonne noted that appellant’s only ratable condition was his left medial meniscus tear. Using
Table 16-23 on page 549 of the sixth edition of the A.M.A., Guides, appellant’s seven degrees of
flexion contracture in his left knee equaled a 10 percent impairment of his left leg. His 120
degrees of left knee flexion equaled a zero percent impairment. Dr. Tonne noted that, using
Table 16-17 on page 545, the functional history modifier was 1 and therefore there was a 5
percent increase of the 10 percent impairment. This would equal a 10.5 percent impairment,
which when rounded up equaled an 11 percent permanent impairment of appellant’s left leg.
In an October 24, 2011 decision, OWCP denied appellant’s claim for increased schedule
award compensation finding that the weight of the medical evidence rested with the opinions of
Dr. Nickodem and Dr. Tonne.
In an October 25, 2011 letter, OWCP advised appellant of its preliminary determination
that he received a $13,584.24 overpayment of compensation because he was paid a schedule

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award for a 19 percent impairment of his left leg on January 6, 2006 without deducting the 8
percent left leg impairment previously received on December 6, 1991. It also made a
preliminary determination that he was not at fault in creation of the overpayment. Appellant was
provided 30 days to submit evidence and argument challenging the overpayment and was
directed to complete and submit an attached financial overpayment questionnaire. He was
advised that failure to submit the requested information within 30 days would result in denial of
waiver of overpayment recovery.5
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the February 7, 2012 hearing, he asserted that there was a conflict in the medical opinion
between Dr. Grant and Dr. Nickodem regarding the extent of his left leg impairment which
required referral of the case to an impartial medical specialist. Appellant stated that he had
enough assets to pay back the overpayment and indicated, that if necessary, he would pay it
back.
In an April 16, 2012 decision, OWCP’s hearing representative affirmed the October 24,
2011 decision denying an increased schedule award. He found that the weight of the medical
evidence rested with the opinions of Dr. Nickodem and Dr. Tonne.
In another April 16, 2012 decision, OWCP’s hearing representative finalized the
preliminary determination that appellant received a $13,584.24 overpayment of compensation.
He determined that the overpayment was not subject to waiver because appellant did not submit
the requested financial information.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.9

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The record contains evidence showing that appellant received $32,006.16 in schedule award compensation for
his left leg impairment. However, when accounting for the monies from the December 6, 1991 award (8 percent left
leg impairment) that should have been deducted from the amount received in connection with the January 6, 2006
award (19 percent left leg impairment), appellant was only entitled to receive $18,421.92.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

8

Id.

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

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Table 16-22 on page 549 of the sixth edition of the A.M.A., Guides describes impairment
ratings for limited flexion and flexion contracture of the knee. Depending on the severity of the
observed condition, adjustments based on functional history might be made to the impairment
values obtained from Table 16-22.10
A schedule award is not payable for the loss or loss of use, of a part of the body that is
not specifically enumerated under FECA. Neither FECA nor its implementing regulations
provides for a schedule award for impairment to the back or to the body as a whole.
Furthermore, the back is specifically excluded from the definition of organ under FECA.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained several injuries between 1988 and 2003 to his
back and left leg, including a medial meniscus tear in his left knee, lumbar disc herniations and
multiple contusions and strains/sprains of his low back, left knee and left leg.12 It determined
that he had 19 percent permanent impairment of his left leg and he later claimed entitlement to
increased schedule award compensation. OWCP based its determination that appellant did not
have more than 19 percent impairment of his left leg on the opinions of Dr. Nickodem, a
Board-certified orthopedic surgeon who served as an OWCP referral physician, and Dr. Tonne, a
Board-certified orthopedic surgeon who served as an OWCP medical adviser.
The Board finds that OWCP properly relied on the opinions of Dr. Nickodem and
Dr. Tonne in determining that appellant did not have more than 19 percent impairment of his left
leg and that he was not entitled to additional schedule award compensation.
In a September 13, 2011 report, Dr. Nickodem stated that the physical examination
revealed normal motor, sensory and reflex examinations in both upper and lower extremity
examinations. He properly found that the only allowed condition in the lower extremities was the
left medial meniscus tear. For the diagnoses of lumbar disc herniations, lumbar strains/sprains
and lumbar contusions, Dr. Nickodem indicated that there is no rating in either lower extremity
based on those diagnoses because there was no radiculopathy. He correctly stated that, using
Table 16-23 on page 549 of the sixth edition of the A.M.A., Guides, appellant had a 10 percent
impairment of the left knee based on a seven degrees of flexion contracture.13 Dr. Nickodem
noted that, using Table 16-25 on page 550, the range of motion ICF score would be 1. Using
Table 16-6 and Table 16-17 on pages 516 and 545, the functional history adjustment calculation
dictated that there would be a 5 percent increase above the 10 percent impairment. This
calculation gave appellant a total left leg impairment of 10.5 percent, which rounded up to 11
percent.

10

See A.M.A., Guides 515, 545, 550, Table 16-5, Table 16-17 and Table 16-25.

11

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

12

On February 27, 1989 appellant underwent a left partial meniscectomy which was authorized by OWCP.

13

Flexion to 120 degrees was a 0 percent impairment and therefore there was a 10 percent impairment of the left
knee under Table 16-3. See A.M.A., Guides 540, Table 16-23.

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On October 13, 2011 Dr. Tonne reviewed the September 13, 2011 report of
Dr. Nickodem and agreed that appellant’s accepted lumbar conditions were not ratable due to the
absence of any radiculopathy to the lower extremities. He found that appellant’s only ratable
condition was his left medial meniscus tear. Dr. Tonne then applied the standards of the sixth
edition of the A.M.A., Guides in the same manner as Dr. Nickodem and concluded that appellant
had 11 percent permanent impairment of his left leg.
Appellant contends that there was a conflict in the medical opinion evidence between
Dr. Grant, an attending Board-certified internist, and Dr. Nickodem regarding the extent of his
left leg impairment which required referral of the case to an impartial medical specialist.
Dr. Tonne properly pointed out on August 25, 2010 that Dr. Grant’s impairment rating of 32
percent (contained in a December 13, 2009 report) was not based on the sixth edition of the
A.M.A., Guides and impermissibly provided impairment ratings for the whole person and back
itself.14 For this reason, the Board finds that the weight of medical evidence rests with
Dr. Nickoden and Dr. Tonne.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.15 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”16
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.17
ANALYSIS -- ISSUE 2
The Board finds that appellant received a $13,584.24 overpayment of compensation.
Appellant received a schedule award for a 19 percent impairment of his left leg on
14

See supra note 10.

15

5 U.S.C. § 8102(a).

16

Id. at § 8129(a).

17

Id. at § 8116(a).

6

January 6, 2006. OWCP failed to deduct the award he previously received for an eight percent
impairment of his left leg on December 6, 1991. The record contains evidence showing that
appellant received $32,006.16 in schedule award compensation for his left leg impairment.
However, when accounting for the December 6, 1991 award (8 percent left leg impairment) that
should have been deducted from the January 6, 2006 award (19 percent left leg impairment), he
was only entitled to receive $18,421.92. The difference represents an overpayment of
$13,584.24. Appellant received a duplicative payment in 2006 for the same left leg impairment.
For these reasons, OWCP properly determined that he received a $13,584.24 overpayment.
LEGAL PRECEDENT -- ISSUE 3
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.18 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”19 Since OWCP found
appellant to be without fault in the matter of the overpayment, then, in accordance with section
8129(b), OWCP may only recover the overpayment if it determined that recovery of the
overpayment would neither defeat the purpose of FECA nor be against equity and good
conscience.
Section 10.438 of OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”20
ANALYSIS -- ISSUE 3
OWCP properly determined that appellant did not establish entitlement to waiver of the
overpayment under the above-described standards. Appellant did not provide the requested
financial information within the appropriate time period to show that he was entitled to waiver of
the overpayment. Therefore, OWCP properly denied waiver of overpayment recovery.21
18

See Robert Atchison, 41 ECAB 83, 87 (1989).

19

5 U.S.C. § 8129(b).

20

20 C.F.R. § 10.438.

21

See id.

7

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 19 percent permanent impairment of his left leg, for which he received a schedule
award. The Board further finds that he received a $13,584.24 overpayment of compensation and
that OWCP did not abuse its discretion by refusing to waive recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 15-0550
Issued: January 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 12, 2015 appellant filed a timely appeal from the August 22, September 23,
and December 8, 2014 nonmerit decisions of the Office of Workers’ Compensation Programs
(OWCP).1 The last merit decision in this case was the Board’s May 9, 2008 decision. As there
has been no OWCP merit decision issued within one year of the filing of this appeal,2 pursuant to
the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.

1

On January 12, 2015 appellant submitted a timely request for oral argument in connection with OWCP’s
December 8, 2014 decision. After exercising its discretion, the Board, in an order issued on June 2, 2015, denied
her request for oral argument, finding that the arguments on appeal could be adequately addressed in a decision
based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0550 (issued
June 2, 2015).
2

For decisions issued prior to October 20, 2008, a claimant had up to one year to file an appeal to the Board. 20
C.F.R. § 501.3(d)(2) (2007).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s requests for
reconsideration were untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant contends that OWCP removed a chiropractor from her case without
first giving her an opportunity to replace him with a qualified physician.
FACTUAL HISTORY
This case has previously been before the Board.
On May 7, 1985 appellant, then a 28-year-old letter sorter machine operator, filed a
traumatic injury claim (Form CA-1) under File No. xxxxxx086 alleging that she sustained an
ankle, left hip, and left neck injuries on that day as a result of slipping down a flight of stairs at
work. OWCP accepted the claim for cervical and lumbar strains, and left hip and left ankle
strains. Subsequently, it accepted that appellant sustained a recurrence of disability on
July 24, 1985. In a claim filed under File No. xxxxxx103, OWCP accepted that she sustained
cervical and thoracic strain, and left trapezius myositis while in the performance of duty on
July 24, 1985. It combined this claim and the instant claim under File No. xxxxxx086 into a
master claim assigned File No. xxxxxx086.
In decisions dated September 14, 2000, August 4, 2003, and February 9, 2005, the Board
affirmed OWCP’s nonmerit decisions denying appellant’s requests for reconsideration regarding
a denial of recurrence of disability as they were untimely filed and failed to demonstrate clear
evidence of error.4
In a December 8, 2006 notice, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on the impartial medical opinion of Dr. Mukund
Komanduri, a Board-certified orthopedic surgeon, who opined that appellant no longer had any
residuals of her accepted May 7 and July 24, 1985 employment injuries.
In a January 18, 2007 decision, OWCP finalized the termination of wage-loss
compensation and medical benefits based on Dr. Komanduri’s impartial medical opinion.
By letter dated January 29, 2007, appellant requested an oral hearing before an OWCP
hearing representative.
In a decision dated November 15, 2007, an OWCP hearing
representative affirmed the January 18, 2007 termination decision.
He found that
Dr. Komanduri’s impartial medical opinion represented the special weight of the medical
evidence. On December 18, 2007 appellant, through counsel, appealed to the Board.
In a May 9, 2008 decision,5 the Board affirmed the January 18 and November 15, 2007
termination decisions. The Board found that OWCP had met its burden of proof to terminate
4

Docket No. 99-0958 (issued September 14, 2000), Order Denying Petition for Reconsideration, Docket No. 990958 (issued June 5, 2001); Docket No. 03-0956 (issued August 4, 2003) and Docket No. 94-1741 (issued
February 9, 2005).
5

Docket No. 08-0571 (issued May 9, 2008).

2

appellant’s medical benefits on January 18, 2007 based on Dr. Komanduri’s impartial medical
opinion. The Board also found that she had failed to establish that she had any continuing
employment-related residuals after January 18, 2007.
By order dated April 15, 2009, the Board remanded the case for consolidation of
appellant’s prior claims.6 Following the remand, OWCP denied appellant’s request for
reconsideration on a number of occasions because the requests were untimely filed and failed to
establish clear evidence of error. The December 15, 2011 OWCP decision was appealed to the
board. By decision dated March 13, 2012, the Board affirmed the denial of appellant’s
reconsideration request because it was untimely and failed to establish clear evidence of error.7
Appellant continued filing requests for reconsideration and an appeal was filed to the
Board of OWCP’s March 18, 2013 decision. By a May 16, 2014 Order Remanding Case, the
Board found that OWCP had improperly designated appellant’s request for reconsideration as
from its denial of recurrence rather than from its termination decision. The Board remanded the
case for OWCP to correct its procedural error.8
Following the Board’s May 16, 2014 remand, OWCP issued a July 1, 2014 decision,
denied appellant’s request for reconsideration of its January 18, 2007 termination decision
finding it was untimely filed and failed to demonstrate clear evidence of error.
On July 8, 2014, appellant again requested reconsideration of OWCP’s January 18, 2007
termination decision. She contended that Dr. Komanduri’s report was not entitled to the weight
of the medical evidence as he focused on Marfan syndrome, the shoulder, and cervical
degenerative disease, conditions which had not been accepted by OWCP. Dr. Komanduri did
not discuss her accepted employment-related left hip, left ankle, left trapezius, myalgia/myositis,
and thoracic conditions.
In a report dated July 15, 2014, Dr. Sylvia A. De La Llana, a physiatrist, provided a
history of the May 7, 1985 employment injuries, and appellant’s employment, medical treatment,
and personal background. She noted appellant’s complaints of neck pain which radiated into her
legs, and bilateral shoulders, bilateral hips, and low back pain. Dr. De La Llana further noted her
difficulty with performing activities of daily living (ADL). She reported physical examination
findings and diagnostic test results. Dr. De La Llana provided nonindustrial diagnoses of Marfan
syndrome by history and connective tissue disorder. She provided industrial diagnoses related to
appellant’s accepted claims which included chronic lumbar sprain and strain with myofasciitis,
lumbar disc disease with radiculopathy at L5-S1, chronic bilateral hip, cervical spine, bilateral
shoulder, thoracic spine, and left ankle sprain and strain with myofasciitis, chronic left ankle
sprain and strain with internal derangement, cervical spine radiculopathy, and loss of cervical
lordosis with a right vertebral artery dissection. Dr. De La Llana opined that based on
appellant’s history, radiographic data, and mechanism of injury, her subjective complaints were
consistent with the injuries sustained at the time of her fall. She further opined that because
6

Docket No. 09-42, Order Remanding Case (issued April 15, 2009).

7

Docket No. 12-0554 (issued March 13, 2012), Order Denying Petition for Reconsideration, Docket No. 12-0554
(issued September 14, 2012).
8

Docket No. 13-1824, Order Remanding Case (issued May 16, 2014).

3

appellant had been diagnosed with unspecified connective tissue disease and had received
treatment for Marfan syndrome, the musculoskeletal injuries during her fall at work had
accelerated and exacerbated her above-noted medical condition. Dr. De La Llana advised that
her symptoms were aggravated and exacerbated when she performed her usual and customary
work duties which included walking, standing, sitting, prolonged walking, standing, and sitting,
bending, stooping, lifting, carrying, twisting, pushing, pulling, and reaching. She related that
these activities caused an aggravation and exacerbation of appellant’s symptoms which were a
direct result of continuous trauma in the course of her job at the employing establishment.
Dr. De La Llana noted that repetition of the above-noted activities prolonged weight bearing
over a period of seven to eight years and had accelerated the osteoarthritic process causing the
development of progressive pain, disc disease, osteoarthritic changes, significant functional
difficulties with performance of the essential demands of appellant’s job, and difficulty
performing activities of daily living. She concluded that aggravation of appellant’s connective
tissue disorder was permanent.
In an August 22, 2014 decision, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error.
On August 28, 2014 appellant yet again requested reconsideration of the January 18,
2007 termination decision and, by decision dated September 23, 2014, OWCP again denied
appellant’s request for reconsideration as it was untimely filed and failed to demonstrate clear
evidence of error.
Appellant again exercised her rights to reconsideration and on October 26, 2014,
contended that her request was not untimely filed. Appellant asserted that OWCP erred in
treating Dr. Gary Ogurkiewicz, a chiropractor, as her attending physician, as he was not
considered a physician under FECA, and finding that his May 14, 1985 report was sufficient to
establish that her work-related conditions had ceased. She further asserted that it erred in
ordering her to see Dr. Michael R. Treister, a Board-certified orthopedic surgeon and an OWCP
referral physician, for a second opinion evaluation.
In a November 11, 2014 addendum to her request for reconsideration, appellant
contended that she was entitled to disability compensation for the period November 7, 1986 to
January 18, 2007.
Appellant resubmitted a November 6, 1986 attending physician’s supplemental report
(Form CA-20a) from Dr. Treister who diagnosed subjective cervical pain and indicated with an
affirmative mark that the diagnosed condition was due to appellant’s accepted May 7, 1985
employment injuries. He released her to return to work without restrictions on the day of his
examination.
Appellant also resubmitted Dr. De La Llana’s July 15, 2014 report.
In a December 8, 2014 decision, OWCP denied appellant’s reconsideration request as it
was untimely filed and failed to demonstrate clear evidence of error.

4

LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.9 One such limitation, 20 C.F.R. § 10.607, provides
that an application for reconsideration must be received within one year of the date of OWCP
decision for which review is sought.10 OWCP will consider an untimely application only if the
application demonstrates clear evidence of error on the part of OWCP in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise, and explicit, and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted 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.12
ANALYSIS
The Board finds that OWCP properly determined that appellant had failed to file a timely
request for reconsideration. OWCP procedures provide that the one-year time limitation period
for requesting reconsideration begins on the date of the original OWCP decision.13 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.
The most recent merit decision in this case was issued by the Board on May 9, 2008.
Appellant’s requests for reconsideration were not received by OWCP until July 8, August 28,
and October 26, 2014, more than one year after the May 9, 2008 merit decision. Therefore, they
were untimely filed.
The Board also finds that appellant’s untimely requests for reconsideration failed to
demonstrate clear evidence of error. The Board’s May 9, 2008 merit decision affirmed OWCP’s
January 18 and November 15, 2007 decisions finding that OWCP met its burden of proof to
terminate appellant’s benefits based on Dr. Komanduri’s impartial medical opinion that she no
longer had any residuals or disability causally related to her accepted May 7 and July 24, 1985
9

5 U.S.C. § 8101 et seq.

10

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011).
11

20 C.F.R. § 10.607(b).

12

Robert G. Burns, 57 ECAB 657 (2006).

13

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.4(b) (October 2011).

5

employment-related injuries. In her untimely reconsideration requests, appellant contended that
Dr. Komanduri’s report was not entitled to the weight of the medical evidence as he focused on
Marfan syndrome, the shoulder, and cervical degenerative disease, conditions which had not
been accepted by OWCP. She stated that he did not discuss her accepted employment-related
left hip, left ankle, left trapezius, myalgia/myositis, and thoracic conditions. Appellant further
contended that her request for reconsideration was not untimely filed. She asserted that OWCP
erred in treating Dr. Gary Ogurkiewicz, a chiropractor, as her attending physician and finding
that his May 14, 1985 report was sufficient to establish that her work-related conditions had
ceased. Appellant also asserted that it erred in ordering her to see Dr. Treister for a second
opinion evaluation. She contended that she was entitled to disability compensation from
November 7, 1986 to January 18, 2007. Lastly, appellant contended that she did not receive a
proposed notice of termination of her compensation benefits. However, these contentions do not
establish error on the part of OWCP, but merely repeat arguments previously raised on prior
appeals before the Board. The Board previously affirmed OWCP’s finding that appellant’s
contentions failed to establish clear evidence of error. The Board finds that her arguments on
reconsideration are insufficient to raise a substantial question concerning the correctness of
OWCP’s termination of her compensation benefits or to shift the weight of the evidence in her
favor. Also, repetitive or cumulative evidence is insufficient to shift the weight of the evidence
in favor of the claimant.14
Dr. De La Llana’s July 15, 2014 report found that appellant’s diagnosed lumbar, bilateral
hip, cervical spine, bilateral shoulder, thoracic spine, and left ankle conditions were consistent
with her accepted employment-related injuries and that these conditions were aggravated or
exacerbated by her regular work duties. She further found that because appellant had been
diagnosed with unspecified connective tissue disease and had received treatment for Marfan
syndrome, the musculoskeletal injuries during her fall at work had accelerated and exacerbated
her above-noted medical condition. While this report offers some support for causal
relationship, the Board has held that the term clear evidence of error is intended to represent a
difficult standard. Evidence such as a detailed, well-rationalized report, which if submitted prior
to OWCP’s denial, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error and would not require a review of a case.15 The
Board finds that Dr. De La Llana’s report is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in terminating her
compensation benefits.
Appellant resubmitted a November 6, 1986 Form CA-20a report from Dr. Treister which
was previously of record. The resubmission of this evidence does not shift the weight of the
evidence in her favor or raise a substantial question as to the correctness of OWCP’s termination
decision.16 Appellant did not explain how resubmission of Dr. Treister’s report was positive,
precise and explicit in manifesting on its face that OWCP committed an error in terminating her
compensation benefits. It is not apparent how resubmission of this evidence is sufficient to raise
14

D.E., 59 ECAB 438 (2008); A.F., Docket No. 11-1297 (issued December 20, 2011).

15

D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5(a)
(October 2011).
16

See cases cited, supra note 12.

6

a substantial question as to the correctness of OWCP’s decision. Thus, this resubmitted evidence
is insufficient to show clear evidence of error.
The arguments and evidence submitted by appellant are insufficient to raise a substantial
question as to the correctness of the last merit decision. Consequently, appellant has not met her
burden to establish clear evidence of error on the part of OWCP such that it erred in denying
merit review.
On appeal, appellant reiterated an assertion that she made before the Board indicating that
the termination of her benefits was improper as it removed a chiropractor from her case without
first giving her an opportunity to replace him with a qualified physician. However, as noted, the
Board does not have jurisdiction over the merits of the claim. As explained, appellant has not
established clear evidence of error by OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration
because they were untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 8, September 23, and August 22,
2014 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 28, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE ARMY, MATERIAL
COMMAND, Texarkana, TX, Employer
__________________________________________

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Appearances:
Randolph Baltz, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1715
Issued: February 11, 2009

Case Submitted on the Record

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

JURISDICTION
On June 2, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 27, 2007 merit decision terminating his compensation, an
August 28, 2007 nonmerit decision denying his hearing request, and the May 7 and
September 18, 2008 nonmerit decisions denying his reconsideration requests. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective July 7, 2007 on the grounds that he refused an offer of suitable work; (2) whether the
Office properly denied his hearing request; and (3) whether the Office properly denied his
request for further review of the merits of his claim.
FACTUAL HISTORY
The Office accepted that on September 29, 2005 appellant, then a 55-year-old tractor
operator, sustained lumbar and thoracic sprains/strains and degeneration of lumbar discs while

trying to pull the buggy frames of a Humvee out of a ditch. Appellant stopped work for various
periods and received appropriate compensation from the Office. The findings of November 2,
2005 magnetic resonance imaging scan testing showed that appellant had multiple levels of
cervical, thoracic and lumbar disc degeneration.
In a May 10, 2006 report, Dr. Rodney Chandler, an attending Board-certified general
practitioner, stated that appellant was unable to perform any work due to residuals of his
accepted employment injuries. The record contains numerous examination reports in which
Dr. Chandler indicated that appellant exhibited neck, back and extremity pain and had limitation
of motion. Dr. Chandler continued to produce reports throughout 2006 indicating that
appellant’s condition had not changed.
On November 8, 2006 Dr. John Sandifer, a Board-certified orthopedic surgeon, who
served as an Office referral physician, stated that on examination appellant had no motor or
sensory loss in his extremities but did have some limitation of bending motion. He diagnosed
cervical strain superimposed on cervical degenerative disc disease, left shoulder strain with mild
tendinitis left and chronic lumbar strain with degenerative disc disease lumbar spine.
Dr. Sandifer indicated that there were no “truly objective findings” on physical examination and
indicated that appellant could probably perform his regular work as a tractor operator.1 He noted
that appellant could lift, push or pull up to 20 pounds for four hours per day, sit for six hours,
stand or walk for five hours and engage in such activities as twisting, stooping and bending for
two or three hours.
On January 29, 2007 the employing establishment offered appellant a full-time position
as a modified clerk. The position was clerical in nature and required a “light to medium” level of
work. It involved such duties as reviewing, sorting and distributing mail to appropriate persons,
filing documents, ordering office supplies, operating fax machines and copy machines,
completing work orders, typing documents and envelope labels, receiving and responding to
emails, reviewing monthly reports for accuracy, and screening and escorting visitors. The
physical requirements of the position indicated that appellant would have to reach above his
shoulders for up to 30 minutes per day, walk for 2 hours and stand for 2 hours. The position
would require him to use his fingers. On February 5, 2007 appellant declined the offered job
indicating that he was not physically able to perform it.
The Office determined that there was a conflict in the medical opinion between
Dr. Chandler and Dr. Sandifer regarding appellant’s capacity for work. In order to resolve the
conflict, the Office referred appellant, pursuant to section 8123(a) of the Act, to Dr. Robert E.
Holladay, a Board-certified orthopedic surgeon, for an impartial medical examination and an
opinion on the matter.
On February 15, 2007 Dr. Holladay indicated that on examination appellant reported pain
in his cervical and lumbar spines but that no trigger points or spasms were found. Appellant had
normal findings upon sensory examination of his extremities and motion of his neck, back and
extremities was normal. There was no weakness in appellant’s extremities and, despite his
complaints of left shoulder pain, he could abduct the shoulders against resistance, flex and
1

The tractor operator position requires lifting up to 50 pounds.

2

extend the elbows, extend and flex the wrists and grip with both hands. Dr. Holladay concluded
that appellant could work eight hours per day with restrictions. He stated that appellant could sit,
stand or walk for eight hours per day, twist for one hour per day, and push or pull up to 10
pounds for eight hours per day. Dr. Holladay noted that appellant could not bend, stoop, squat,
kneel or climb.
In an April 26, 2007 letter, the Office advised appellant of its determination that the
modified clerk position offered by the employing establishment was suitable. It informed
appellant that his compensation would be terminated if he did not accept the position or provide
good cause for not doing so within 30 days of the date of the letter. Appellant continued to assert
that he was not physically capable of performing the offered position and submitted progress
reports of Dr. Chandler which indicated that he remained symptomatic.
In a June 1, 2007 letter, the Office advised appellant that his reasons for not accepting the
position offered by the employing establishment were unjustified. It informed appellant that his
compensation would be terminated if he did not accept the position within 15 days of the date of
the letter. Appellant did not accept the position within the allotted time.
In a June 27, 2007 decision, the Office terminated appellant’s wage-loss compensation
effective July 7, 2007 on the grounds that he refused an offer of suitable work. It indicated that
the weight of the medical evidence regarding appellant’s ability to work rested with the wellrationalized opinion of Dr. Holladay.
In a letter postmarked August 3, 2007, appellant requested a hearing before an Office
hearing representative. In an August 28, 2007 decision, the Office hearing representative denied
appellant’s request on the grounds that it was untimely. He exercised his discretion and denied
appellant’s request on the grounds that the claim could be equally well addressed by submitting
additional evidence and requesting reconsideration.
In a September 7, 2007 letter, appellant requested reconsideration of his claim. He
submitted a number of reports from 2007 in which Dr. Chandler indicated that he remained
symptomatic. In a September 18, 2007 decision, the Office denied appellant’s request for further
review of the merits of his claim. In a March 12, 2008 letter, appellant again requested
reconsideration of his claim. He submitted reports from 2007 in which Dr. Chandler continued
to indicate that he remained symptomatic. In a May 7, 2008 decision, the Office denied
appellant’s request for further review of the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”2 However, to justify such termination, the Office
must show that the work offered was suitable.3 An employee who refuses or neglects to work

2

5 U.S.C. § 8106(c)(2).

3

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

3

after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.4
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”5 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.6 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Office accepted that on September 29, 2005 appellant sustained lumbar and thoracic
sprains/strains and degeneration of lumbar discs while trying to pull the buggy frames of a
Humvee out of a ditch. On January 29, 2007 the employing establishment offered appellant a
full-time position as a modified clerk. The position involved such duties as reviewing, sorting
and distributing mail to appropriate persons, filing documents, ordering office supplies, operating
fax machines and copy machines, completing work orders, typing documents and envelope
labels, receiving and responding to emails, reviewing monthly reports for accuracy and screening
and escorting visitors. A document which described the physical requirements of the position
indicated that appellant would have to reach above his shoulders for up to 30 minutes per day
and would have to use his fingers. Appellant refused the position and the Office terminated his
compensation for failure to accept suitable work.
The Office determined that there was a conflict in the medical opinion between
Dr. Chandler, an attending Board-certified general practitioner, and Dr. Sandifer, a Boardcertified orthopedic surgeon acting as an Office referral physician, regarding appellant’s ability
to work.8 In order to resolve the conflict, the Office properly referred appellant, pursuant to
section 8123(a) of the Act, to Dr. Holladay, a Board-certified orthopedic surgeon, for an
impartial medical examination and an opinion on the matter.
The Board notes that the well-rationalized February 15, 2007 opinion of Dr. Holladay
shows that appellant could perform the modified clerk position offered by the employing
4

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

5

5 U.S.C. § 8123(a).

6

William C. Bush, 40 ECAB 1064, 1975 (1989).

7

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

8

In a May 10, 2006 report, Dr. Chandler stated that appellant was unable to perform any work due to residuals of
his accepted employment injuries. In contrast Dr. Sandifer indicated in a November 8, 2006 report that he could lift,
push or pull up to 20 pounds for four hours per day, sit for six hours, stand or walk for five hours and engage in such
activities as twisting, stooping and bending for two or three hours.

4

establishment and this opinion represents the weight of the medical evidence with respect to his
ability to work.9 Dr. Holladay explained that appellant had extremely limited objective findings
on examination. He concluded that appellant could work eight hours per day with restrictions
and the Board finds that these restrictions would not prevent appellant from performing the
offered position. The modified clerk position required limited exertion of the upper extremities
while performing such activities such as typing or filing documents. Dr. Holladay noted that
appellant was capable of pushing or pulling up to 10 pounds for eight hours per day. Moreover,
he found that there was no weakness in appellant’s extremities and, despite his complaints of left
shoulder pain, he could abduct the shoulders against resistance, flex and extend the elbows,
extend and flex the wrists and grip with both hands. Dr. Holladay indicated that on examination
appellant reported pain in his cervical and lumbar spines but that no trigger points or spasms
were found. Appellant had normal findings upon sensory examination of his extremities and
motion of his neck, back and extremities was normal.10 Dr. Holladay stated that appellant could
sit, stand or walk for eight hours per day and the offered position requires only two hours of
standing and two hours of walking per day. He noted that appellant could not bend, stoop, squat,
kneel or climb, but there is no indication that the offered position requires such activities.
The Board finds that the Office established that the modified clerk position offered by the
employing establishment is suitable. As noted, once the Office has established that a particular
position is suitable, an employee who refuses or neglects to work after suitable work has been
offered to him has the burden of showing that such refusal to work was justified. Appellant
contends that he is physically unable to perform the offered position and submitted reports from
2007 in which Dr. Chandler indicated that he remained symptomatic. However, these reports
contained no opinion on appellant’s ability to work. The Board has carefully reviewed the
evidence and argument submitted by appellant in support of his refusal of the modified clerk
position and notes that it is not sufficient to justify his refusal of the position.
For these reasons, the Office properly terminated appellant’s compensation effective
July 7, 2007 on the grounds that he refused an offer of suitable work.11
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before
a representative of the Secretary.”12 As section 8124(b)(1) is unequivocal in setting forth the time
9

See supra note 7 and accompanying text.

10

While Dr. Holladay did not specifically indicate that appellant could reach above his shoulders for 30 minutes
per day, there is nothing in his report which shows that he could not perform such a limited activity.
11

The Board notes that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing appellant with an opportunity to accept the modified clerk position after
informing him that his reasons for initially refusing the position were not valid; see generally Maggie L. Moore, 42
ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).
12

5 U.S.C. § 8124(b)(1).

5

limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made within the requisite 30 days.13 The date of filing is fixed by postmark or other
carrier’s date marking.14
The Board has held that the Office, in its broad discretionary authority in the administration
of the Act, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that the Office must exercise this discretionary authority in deciding
whether to grant a hearing.15 Specifically, the Board has held that the Office has the discretion to
grant or deny a hearing request on a claim involving an injury sustained prior to the enactment of
the 1966 amendments to the Act which provided the right to a hearing,16 when the request is made
after the 30-day period for requesting a hearing,17 and when the request is for a second hearing on
the same issue.18
ANALYSIS -- ISSUE 2
Appellant’s hearing request was made more than 30 days after the date of issuance of the
Office’s prior decision dated June 27, 2007 and, thus, he was not entitled to a hearing as a matter of
right. He requested a hearing before an Office representative in a letter dated and postmarked
August 3, 2007. The Office properly found appellant was not entitled to a hearing as a matter of
right because his hearing request was not made within 30 days of the June 27, 2007 decision.
The Office has the discretionary power to grant a hearing when a claimant is not entitled
to a hearing as a matter of right. In its August 28, 2007 decision, it properly exercised its
discretion when it denied appellant’s hearing request on the grounds that his claim could be
equally well addressed by submitting additional evidence and requesting reconsideration. The
Board has held that as the only limitation on the Office’s authority is reasonableness, abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.19 In the present case, the evidence of record does not indicate that the Office
committed any act in connection with its denial of appellant’s hearing request which could be
found to be an abuse of discretion.

13

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

14

See 20 C.F.R. § 10.616(a).

15

Henry Moreno, 39 ECAB 475, 482 (1988).

16

Rudolph Bermann, 26 ECAB 354, 360 (1975).

17

Herbert C. Holley, 33 ECAB 140, 142 (1981).

18

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

19

Daniel J. Perea, 42 ECAB 214, 221 (1990).

6

LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.21 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.22 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.23 The Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case record
does not constitute a basis for reopening a case.24
20

ANALYSIS -- ISSUE 3
In support of his September 2007 and March 2008 reconsideration requests, appellant
maintained that he was physically unable to perform the offered position. He submitted reports
from 2007 in which Dr. Chandler indicated that he remained symptomatic. However, appellant
had already made this argument and had previously submitted similar reports from Dr. Chandler
which were considered by the Office. The Board has held that resubmitting similar arguments
and evidence would not require reopening a claim.25 Appellant has not established that the
Office improperly denied his request for further review of the merits of its June 27, 2007
decision under section 8128(a) of the Act, because the evidence and argument he submitted did
not show that the Office erroneously applied or interpreted a specific point of law, advance a
relevant legal argument not previously considered by the Office or constitute relevant and
pertinent new evidence not previously considered by the Office.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
July 7, 2007 on the grounds that he refused an offer of suitable work. The Board further finds
that the Office properly denied his hearing request and his requests for further review of the
merits of his claim.
20

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
21

20 C.F.R. § 10.606(b)(2).

22

Id. at § 10.607(a).

23

Id. at § 10.608(b).

24

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

25

See supra note 25 and accompanying text.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 7, 2008 and September 18, August 28 and June 27, 2007 decisions are affirmed.
Issued: February 11, 2009
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
PEARL HARBOR -- HICKAM, Honolulu, HI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1033
Issued: November 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 15, 2020 appellant, through counsel, filed a timely appeal from a December 3,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

The Board notes that, following the December 3, 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.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective December 3, 2019 as he no longer had residuals or
disability causally related to his accepted October 1, 2014 employment injury.
FACTUAL HISTORY
On October 14, 2014 appellant, then a 35-year-old pipefitter supervisor, filed a traumatic
injury claim (Form CA-1) alleging that on October 1, 2014 he strained his lower back when lifting
a rapper seal while in the performance of duty. OWCP accepted the claim for lumbar sprain.
Appellant stopped work on October 3, 2014 and returned to full-time, limited-duty work on
November 17, 2014. On February 9, 2015 he began working four hours per day, five days per
week in a modified position. OWCP paid appellant wage-loss compensation on the supplemental
rolls beginning February 9, 2015 and on the periodic rolls beginning April 5, 2015. On August 7,
2015 appellant resumed full-time modified work. OWCP paid him wage-loss compensation for
lost night differential.
A magnetic resonance imaging (MRI) scan of the lumbar spine obtained on November 28,
2014 revealed right more than left facet arthropathy and minimal disc disease at L4-5 without
significant neural foraminal or spinal canal stenosis.
An electromyogram (EMG) and nerve conduction velocity (NCV) study dated
December 5, 2014 showed left sacral plexopathy and/or peripheral neuropathy of the left lower
extremity.
In a report dated December 29, 2014, Dr. Man Kwan Wong, a Board-certified internist
diagnosed lumbar radiculopathy and lumbar sprain.
In a report dated February 10, 2014, Dr. Jon F. Graham, a neurosurgeon, obtained a history
of appellant injuring his back when lifting a box at work on October 1, 2014. He reviewed the
results of a November 28, 2014 MRI scan and diagnosed multilevel degenerative disc disease with
mild foraminal stenosis at L2-3, L3-4, and L4-5.
On July 9, 2015 OWCP referred appellant to Dr. David T. Brough, a Board-certified
physiatrist, for a second opinion examination. It requested that Dr. Brough address whether
appellant currently had continued residuals of his accepted employment injury and whether the
employment injury had caused any additional conditions.
In a report dated July 9, 2015, Dr. Brough reviewed appellant’s history of an October 1,
2014 employment injury, noting that appellant had experienced pain in his low back lifting
industrial cloth from a box. He reviewed the evidence of record, including the results of diagnostic
3

5 U.S.C. § 8101 et seq.

2

testing. Dr. Brough opined that the accepted employment injury had caused lumbago, lumbar
intervertebral disc derangement, and “likely secondary left lumbosacral radiculopathy, most likely
at L5 given the decreased left hamstring reflex, weakness of the left extensor hallucis longus
muscle, and weakness of the left ankle dorsiflexion.” He further noted that appellant likely had
mild bilateral S1 joint pain and that lumbar radiculopathy had not been ruled out as a diagnosis.
Dr. Brough provided work restrictions and treatment recommendations, including an EMG to
evaluate the left lumbosacral paraspinal muscles.
An EMG and NCV testing performed October 16, 2015 revealed moderate chronic left
radiculopathy at L4-5.
On February 11, 2016 Dr. Wong opined that the diagnosed conditions of lumbar sprain,
lumbago, and lumbar radiculopathy were causally related to appellant’s employment injury. He
advised that objective findings included the EMG test results and examination findings. Dr. Wong
found that appellant could perform his current duties in a full-time capacity.4
On August 16, 2019 OWCP referred appellant to Dr. WeiChin Chen, a Board-certified
orthopedic surgeon, for another second opinion examination to determine whether appellant had
work restrictions or residuals of his October 1, 2014 back strain. It provided Dr. Chen with a
statement of accepted facts (SOAF) setting forth the accepted condition as a lumbar sprain. The
SOAF indicated that appellant had worked part-time limited-duty employment since
February 9, 2015.
In a report dated September 26, 2019, Dr. Chen discussed appellant’s history of injury and
appellant’s continued complaints of pain in his low back radiating into the bilateral hips and thighs
and left leg numbness. On examination he found tenderness to palpation of the left paraspinal,
midline, and S1 joint areas and decreased sensation at L5 and S1 on the left with a negative straight
leg raise and positive Faber’s test bilaterally. Dr. Chen opined that appellant’s lumbar stain and
sprain had resolved. He diagnosed degenerative changes of the lumbar spine and advised that
there was “no objective evidence supporting continued existence of [appellant’s] accepted
condition.” Dr. Chen related:
“At this time, [appellant] has subjective complaints of axial lumbar pain,
objectively this could be due to his left paracentral disc extrusion and also facet
joint arthrosis diffusely throughout his lumbar spine. [He] has on MRI [scan]
revealing contact with the left S1 nerve root, for which [he] has subjective evidence
for S1 distribution paresthesia to both light touch and sharp, which is concordant
with the subjective complaints and his facet arthrosis consistent with subjective
complaints of his axial lumbar pain. Again, the objective findings are not due to
[appellant’s] traumatic strain. His traumatic strain at this time has resolved based
on his MRI [scan] dated April 10, 2017.”

4

Dr. Wong continued to submit progress reports describing his treatment of appellant. In a report dated April 4,
2017, he advised that appellant was unable to return to his regular employment due to continued pain and loss of range
of motion.

3

Dr. Chen found that appellant required work restrictions and medical treatment due to his
nonemployment-related conditions.
On October 31, 2019 OWCP advised appellant of its proposed termination of his wageloss compensation and medical benefits as the weight of the evidence established that he no longer
had any employment-related residuals or disability due to his October 1, 2014 employment injury.
It afforded him 30 days to submit additional evidence or argument if he disagreed with the
proposed termination.
Thereafter, OWCP received a September 17, 2019 emergency department report from
Dr. David T. Fujiwara, Board-certified in emergency medicine. Dr. Fujiwara obtained a history
of appellant injuring his back at work five years earlier. He diagnosed low back pain.
In a progress report dated November 5, 2019, Dr. Wong evaluated appellant for low back
pain with spasms and diagnosed lumbar sprain.
In an undated report received by OWCP on November 26, 2019 Dr. Wong advised that
appellant’s initial diagnosis was lumbar sprain, but that electrodiagnostic testing had revealed
radiculopathy at L4-5. He asserted that lumbar radiculopathy could result in symptoms last for
years.
By decision dated December 3, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective December 3, 2019. It found that the opinion of
Dr. Chen represented the weight of the evidence and established that appellant had no further
residuals or disability due to his accepted employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.5 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective December 3, 2019.
OWCP accepted that appellant sustained lumbar sprain on October 1, 2014. It indicated
that it was terminating his wage-loss compensation and medical benefits as the September 26,
5

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

6

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

7

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

4

2019 report from Dr. Chen, an OWCP referral physician, established that appellant had no further
disability or need for medical treatment due to his lumbar sprain. OWCP provided Dr. Chen with
a SOAF that indicated that it had only accepted a lumbar sprain due to appellant’s October 1, 2014
employment injury.
OWCP, however, had previously referred appellant to Dr. Brough for a second opinion
examination to determine whether appellant had continued disability or residuals of his accepted
lumbar sprain and whether appellant had sustained any additional conditions as a result of his
October 1, 2014 employment injury. In a July 9, 2015 report, Dr. Brough found that appellant had
sustained lumbago, lumbar intervertebral disc derangement, and likely L5 left lumbar
radiculopathy due to appellant’s accepted employment injury. Following receipt of his report,
OWCP failed to either expand acceptance of the claim or further develop the evidence.
Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case.8 It failed to fully develop the
issue of claim expansion to determine whether it should expand acceptance of the claim to include
the additional conditions diagnosed by its referral physician, Dr. Brough, and whether, if
established, these conditions resulted in continuing disability from employment or the need for
medical treatment.9
Additionally, OWCP provided Dr. Chen with a SOAF that indicated that appellant had
worked four hours per day from February 9, 2015 to the present. Appellant, however, returned to
full-time employment on August 7, 2015. OWCP’s procedures provide that a claimant’s
employment history is an essential element of the SOAF.10 When a physician renders a medical
opinion based on an incomplete or inaccurate SOAF, the probative value of the opinion is seriously
diminished or negated altogether.11
For the above-stated reasons, OWCP has not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits.12
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective December 3, 2019.

8

See R.B., Docket No. 20-0109 (issued June 25, 2020); B.W., Docket No. 19-0965 (issued December 3, 2019).

9

See J.T., Docket No. 19-1723 (issued August 24, 2020).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.6(a)(2)
(September 2009).
11

Id. at Chapter 3.600(3) (October 1990). See Y.D., Docket No. 17-0461 (issued July 11, 2017).

12

J.T., supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6