United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ocean City, MD, Employer
__________________________________________

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Appearances:
Scott B. Baron, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1004
Issued: December 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 9, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 13, 2006 merit decision concerning the suspension of her
compensation and a December 8, 2006 nonmerit decision denying her request for further review
of the merits. 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 suspended appellant’s entitlement to
compensation effective September 3, 2006 for obstruction of a scheduled medical examination;
and (2) whether the Office properly denied appellant’s request for further review of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
The Office accepted that, on November 5, 1994, appellant, then a 31-year-old letter
carrier, sustained a lumbar strain while lifting a mail tray and catching falling mail.1 Her
accepted conditions were later expanded to include myositis and myofascial strain. The Office
paid appellant appropriate compensation for periods of disability. Appellant participated in
vocational rehabilitation efforts which were authorized by the Office. The Office also accepted
that appellant developed depression due to pain related to her employment injuries.
In a July 21, 2006 letter, the Office advised appellant that an appointment had been made
for her to be examined by Dr. Frederick A. Dittmer, a Board-certified psychiatrist, in order to
evaluate the current state of her employment-related emotional condition. The letter indicated
that the examination was scheduled to take place at Dr. Dittmer’s office in Salisbury, MD, on
August 22, 2006 at 3:00 p.m.2
On August 30, 2006 an employee from QTC Medical Services stated, “The claimant
arrived at Dr. Dittmer’s office for appointment on August 22, 2006 but refused to stay for the
appointment because Dr. Dittmer schedules [impartial medical examinations] for two hours and
she stated that she had other appointments to attend.”
In a August 30, 2006 notice, the Office advised appellant that it proposed to suspend her
entitlement to compensation under 5 U.S.C. § 8123(d) because she failed to report for an
examination on August 22, 2006 with Dr. Dittmer as directed by the Office. It informed
appellant that if she had a valid reason for failing to submit or cooperate with the scheduled
examination she should submit her reasons in writing within 14 days of the notice. The Office
advised her that if she did not show good cause, her entitlement to compensation would be
suspended until she attended and fully cooperated with the examination.
In an August 30, 2006 letter received by the Office on September 8, 2006, appellant’s
attorney stated:
“Pursuant to your request, my client was scheduled to see Dr. Frederick Dittmer
on August 22, 2006 at 3:00 p.m. My client arrived on time but was forced to wait
45 minutes while Dr. Dittmer reviewed her medical records. While waiting, she
was advised that the appointment would last over two hours. She was not aware
of this before the appointment and her husband had driven her to the appointment
and had his own appointment to attend at 4:30 p.m. Therefore, the August 22,
2006 appointment was cancelled.”

1

Appellant previously sustained employment injuries in April 1989 and November 1990 and nonwork-related
vehicular accidents in July 1990 and April 1994.
2

In a July 17, 2006 letter, the Office advised appellant that her entitlement to compensation would be suspended
under 5 U.S.C. § 8123(d) if she refused to submit to or obstructed an examination that the Office directed her to
attend. The Office stated, “Only legitimate, documented emergencies may be deemed as adequate grounds for not
keeping the appointment. NO ONE, OTHER THAN OUR OFFICE, IS AUTHORIZED TO CHANGE THE
SCHEDULED APPOINTMENT.” (Emphasis in the original.)

2

In a September 13, 2006 decision, the Office suspended appellant’s entitlement to
compensation effective September 3, 2006 for failure to cooperate with the examination
scheduled with Dr. Dittmer on August 22, 2006. The Office discussed appellant’s response to
the proposed notice of suspension but found that she did not show good cause for not undergoing
the scheduled examination.
Appellant submitted an August 23, 2006 statement addressed to counsel in which she
indicated that she and her husband arrived at Dr. Dittmer’s office at 3:00 p.m. on August 22,
2006 but had to wait 45 minutes while Dr. Dittmer reviewed her case. She stated that, after
inquiring what was taking so long, the receptionist advised her that the examination would take
two hours. Appellant asserted that she was not previously advised that the examination would
take two hours and that she had to leave because her husband, who drove her to the appointment,
had his own appointment to attend at 4:30 p.m. in Ocean City, MD.3 In letters dated October 12
and 28, 2006, counsel stated that appellant arrived on time on August 22, 2006 but had to wait 45
minutes while Dr. Dittmer reviewed her case. He indicated that appellant would have stayed for
the August 22, 2006 examination if she had known that it would last two hours.
On November 28, 2006 appellant requested reconsideration of the Office’s September 13,
2006 decision. In a December 8, 2006 decision, the Office denied her request for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).4
LEGAL PRECEDENT -- ISSUE 1
Section 8123(a) of the Act5 authorizes the Office to require an employee who claims
compensation for an employment injury to undergo such physical examinations as it deems
necessary. The determination of the need for an examination, the type of examination, the
choice of local and the choice of medical examiners are matters within the province and
discretion of the Office. The only limitation on this authority is that of reasonableness.6 Section
8123(d) of the Act provides that, “[i]f an employee refuses to submit to or obstructs an
examination, his right to compensation is suspended until refusal or obstruction stops.”7 If an
employee fails to appear for an examination, the Office must ask the employee to provide in
writing an explanation for the failure within 14 days of the scheduled examination.8

3

Appellant also submitted an undated statement which contained a similar account of the events of
August 22, 2006.
4

The Board notes that it appears that appellant’s entitlement to compensation was reinstated effective October 24,
2006 after she attended an October 24, 2006 examination by Dr. Dittmer.
5

5 U.S.C. § 8123(a).

6

See Dorine Jenkins, 32 ECAB 1502, 1505 (1981).

7

5 U.S.C. § 8123(d). See 20 C.F.R. § 10.323.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (April 1993).

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ANALYSIS -- ISSUE 1
The Board has reviewed the evidence of record and notes that the record contains sufficient
evidence to establish that appellant obstructed a medical examination on August 22, 2006 within
the meaning of 5 U.S.C. § 8123(d). The Office properly advised appellant of the time and place
of an appointment it had made for her to be examined by Dr. Dittmer, a Board-certified
psychiatrist. Appellant appeared at Dr. Dittmer’s office on August 22, 2006 but left before his
examination could be performed.
Appellant, through her attorney, contends that her failure to stay for the appointment was
justified. She asserted that she arrived on time but was forced to wait 45 minutes while
Dr. Dittmer reviewed her medical records. While she was waiting, she was advised that the
appointment would last over two hours. Appellant claimed that she was not made aware of the
length of the examination before the appointment and indicated that the “appointment was
cancelled” because her husband had driven her to Dr. Dittmer’s office and had his own
appointment to attend at 4:30 p.m.
The Board finds that the Office properly determined that appellant did not provide good
cause for obstructing the August 22, 2006 examination with Dr. Dittmer. While it appears that
the examination by Dr. Dittmer was to last about two hours, it would be reasonable for a person
to anticipate that a medical examination might last for such a period. Given appellant’s failure to
make arrangements which would have allowed her to stay for the August 22, 2006 examination,
it cannot be found that she presented good cause for obstructing the examination by leaving
Dr. Dittmer’s office before the examination was completed. Therefore, the Office properly
suspended appellant’s compensation under 5 U.S.C. § 8123(d).
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,9 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.10 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file her application for review within one year of the
date of that decision.11 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.12

9

5 U.S.C. §§ 8101-8193. 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).
10

20 C.F.R. § 10.606(b)(2).

11

20 C.F.R. § 10.607(a).

12

20 C.F.R. § 10.608(b).

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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.13
ANALYSIS -- ISSUE 2
In support of her reconsideration claim, appellant submitted statements in which she
explained why she did not stay for the August 22, 2006 examination. She asserted that she
arrived on time but had to wait 45 minutes while Dr. Dittmer reviewed her case and that the
receptionist advised her that the examination would take two hours. Appellant stated that she
was not previously advised that the examination would take two hours and indicated that she had
to leave because her husband, who drove her to the appointment, had his own appointment to
attend at 4:30 p.m. In letters dated October 12 and 28, 2006, counsel provided a similar, albeit
briefer, account of appellant’s reasons for not staying for the examination.
The Board finds that the submission of this argument would not require reopening of
appellant’s claim because appellant previously submitted and the Office previously rejected a
similar argument.14 This similar argument was contained in a previously submitted August 30,
2006 letter of Mr. Baron.
Appellant has not established that the Office improperly denied her request for further
review of the merits of its September 13, 2006 decision under section 8128(a) of the Act,
because the evidence and argument she submitted did not to 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 suspended appellant’s entitlement to
compensation effective September 3, 2006 for obstruction of a scheduled medical examination.
The Board further finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

13

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

14

See supra note 14 and accompanying text.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 8 and September 13, 2006 decisions are affirmed.
Issued: December 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flagstaff, AZ, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-200
Issued: April 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 26, 2007 appellant, through her attorney, filed a timely appeal of an
August 2, 2007 nonmerit decision of the Office of Workers’ Compensation Programs, denying
her request for reconsideration. Because more than one year has elapsed between the most
recent merit decision dated May 16, 2006 and the filing of the appeal, the Board lacks
jurisdiction to review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 13, 2005 appellant, then a 41-year-old rural carrier, filed an occupational
disease claim. She alleged that on April 7, 2004 she first became aware of her asthma, dizziness,
cough, nausea, vomiting, blurred vision, migraine headaches, insomnia, burning lungs, chronic
infections, sinus problems and sore throat. On April 7, 2004 appellant also first realized that her

conditions were caused by factors of her federal employment. Her symptoms occurred while she
was working in the office and they lessened when she was not in the office.1
Appellant submitted documents related to disciplinary action taken against her by the
employing establishment for throwing away mail on April 5 and 7, 2005. She was placed off
duty on April 4, 2005 and was subsequently suspended for 14 days.
An April 7, 2004 medical report of Dr. Michael P. Collier, a Board-certified family
practitioner, stated that appellant had long-standing asthma. He related that appellant had been
asymptomatic until her transfer from the main post office in Flagstaff, Arizona to an older
downtown office. Since then, appellant had been evaluated on multiple occasions for bronchitis
with asthmatic exacerbation. She advised Dr. Collier that other workers had problems with mold
or fungus but he had no independent confirmation of this statement. Dr. Collier requested that
appellant be transferred to her former work location. There was no clear evidence that such a
move would resolve her problems but, Dr. Collier strongly suspected that it would help.
In a September 14, 2005 narrative statement, Gail A. Ulibarri, a supervisor, controverted
appellant’s claim. She noted that on April 7, 2004 appellant was accused of throwing mail away,
the same day that she first became aware of her respiratory condition. Based on appellant’s
complaint that her respiratory problems were due to mold in the building where she worked, a
test was conducted in April 2004. The test revealed no presence of mold in the building. At the
end of December 2004 appellant bid on a job at the main post office. Ms. Ulibarri stated that this
was a voluntary move and not due to appellant’s health problems. Appellant was taking
medication for her asthma prior to the alleged April 7, 2004 employment incident. Fact findings
and grievance decisions indicated the effects of her medication and her family history of lung
cancer. Ms. Ulibarri stated that appellant elected to resign on March 30, 2005 rather than face
termination by the employing establishment.
In a September 15, 2005 letter, the employing establishment contended that appellant was
no longer an employee and had delayed in filing her claim. Appellant also failed to specifically
identify the work factors that caused her alleged injury. Dr. Collier stated that appellant had
long-standing asthma and she was asymptomatic prior to her transfer from the main post office
to the older downtown building.
By letter dated September 29, 2005, the Office requested that the employing
establishment submit additional factual evidence. The Office also advised appellant on
September 29, 2005 that the evidence submitted was insufficient to establish her claim.
Reports dated April 14 and November 4, 2004 provided the findings of environmental
studies performed at the employing establishment. No mold or asbestos was found. Vinyl floor
tiles, black floor planking pipes and water stained walls required repair. The floor was worn but
sealed and the tiles were waxed. There were only smooth depressions in worn areas that were
nonfriable. The black floor planking was cleaned, sealed and waxed weekly in accordance with
the employing establishment’s work practices. Baseline air monitoring samples fell within the
1

Appellant resigned from the employing establishment on March 30, 2005 because she was unable to perform her
work duties.

2

permissible Occupational Safety and Health Administration (OSHA) exposure limit.
Approximately 20 ceiling tiles had water stains and numerous tiles had been removed as a part of
routine maintenance practice due to wet conditions. A full roof replacement was scheduled for
the spring of 2005. Custodial personnel mopped standing water, if it was present. The age of the
station, condition of the roof and settlement problems may cause wet conditions within the
station during rain events but, due to increased air circulation, the station dried quickly which did
not promote mold growth. In letters dated November 8, 2004 and October 28, 2005, the
employing establishment reiterated the environmental test findings.
By decision dated December 8, 2005, the Office denied appellant’s claim on the grounds
that she did not establish that her claimed exposure to mold or fungus occurred as alleged or that
she sustained a medical condition causally related to the alleged occupational exposure.
On January 11, 2006 appellant requested a review of the written record by an Office
hearing representative. In an accompanying statement, she alleged that she was harassed for
many years at the employing establishment. Appellant contended that April 7, 2004 was not the
date the employing establishment took disciplinary action against her. By that date, she had been
evaluated by a physician who stated that mold or fungus at work could have caused her
respiratory condition. A toxicologist reviewed the April 14, 2004 environmental report and
advised appellant that it was worthless.
Appellant alleged that Ms. Ulibarri called her physician and intimidated him, which made
it difficult for her to obtain treatment. She stated that the employing establishment used her
conditions as a reason to fire her.
Appellant contended that the union failed to protect her rights and that the employing
establishment failed to follow proper procedure. She stated that she did not quit voluntarily.
In a November 29, 2005 report, Dr. E. Michael Canham, a Board-certified internist,
diagnosed chronic cough that may be multifactorial and related to possible nasal sinus disease
and asthma, especially occupational-induced asthma. Appellant also possibly had chronic
airway infection from mycoplasma or chlamydia pneumoniae. She had dyspnea that was likely
secondary to the occupational-induced asthma. Dr. Canham found no other evidence of lung
disease such as, interstitial lung disease, hypersensitivity pneumonitis, true vocal cord
dysfunction, pulmonary vascular disease. Appellant had a history of frequent sinopulmonary
infections but her immunoglobulin status was normal.
There was no evidence of
gastroesophageal reflux disease. Appellant had possible obstructive sleep apnea and early
diffuse lung disease affecting the lower lobes as seen on a computerized tomography (CT) scan.
There was some evidence of sub-centimeter nodules, the largest measuring five millimeters, and
possible paradoxical bronchodilator response. A sinus CT scan showed evidence of mild
sinusitis predominantly in the ethmoid and maxillary sinuses and mild rhinitis. A chest CT scan
demonstrated concern for large airway disease with diffuse early disease at the lung bases that
were nonspecific, a small hernia and small nodules. Laboratory tests revealed normal
immunoglobulin and blood gas levels. Complete pulmonary function studies revealed evidence
of some air trapping with elevated residual volume and normal diffusion capacity. An oxygen
walk test showed no evidence of exercise desaturation at Denver’s altitude.

3

In an April 26, 2006 narrative statement, Ms. Ulibarri denied harassing appellant or of
ever contacting her physicians or intimidating them. She explained that appellant was
disciplined for throwing away mail and not for her medical illness. Ms. Ulibarri contacted the
medical unit to determine whether she had been cleared to return to work. She indicated that the
area where appellant worked was not near an area where the water leaked or where the plastic
was placed on cases. Ms. Ulibarri advised that appellant did not work in an unsafe environment.
The disciplinary action taken against her had nothing to do with her illness as it related to her
operation and mistreatment of mail matter.
By decision dated May 16, 2006, an Office hearing representative affirmed the
December 8, 2005 decision. She found the evidence of record insufficient to establish that
appellant worked in an unsafe environment. The hearing representative also found that she
failed to establish that she was harassed by Ms. Ulibarri.
In a May 2, 2007 letter, appellant, through her attorney, requested reconsideration.
Counsel contended that appellant’s statements were sufficient to establish that the claimed
exposure at the employing establishment occurred as alleged. He contended that an
accompanying duplicate copy of Dr. Collier’s April 7, 2004 report was sufficiently rationalized
to establish that appellant sustained a medical condition causally related to the claimed
employment factor.
In an August 1, 2007 letter, the employing establishment noted a discrepancy in
appellant’s allegation that she experienced medical problems and was diagnosed as having
asthma approximately one year after she began working there and her statement on the CA-2
form that she first became aware of respiratory problems on April 7, 2004.
By decision dated August 2, 2007, the Office denied appellant’s request for
reconsideration. It found that the evidence submitted was insufficient to warrant further merit
review of its prior decisions.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,2 the Office’s regulation provide that 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.3 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.4 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 of the merits.
2

5 U.S.C. §§ 8101-8193. 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).
3

20 C.F.R. § 10.606(b)(1)-(2).

4

Id. at § 10.607(a).

4

ANALYSIS
In a May 2, 2007 letter, appellant, through counsel, disagreed with the Office hearing
representative’s May 16, 2006 decision, finding that she did not sustain a respiratory condition in
the performance of duty because the factual evidence of record did not establish that her claimed
exposure to unsafe working conditions occurred as alleged and that she did not sustain an
emotional condition because she had not established that she was harassed by the employing
establishment. The relevant issues in the case are the factual questions of whether appellant has
established that she worked in an unsafe environment and a compensable employment factor of
harassment.
Appellant submitted a duplicate copy of Dr. Collier’s April 7, 2004 report, which was
already of record and was previously reviewed by the Office. The submission of evidence which
repeats or duplicates evidence that is already in the case record does not constitute a basis for
reopening a case for merit review.5 The Board, therefore, finds that his report is insufficient to
warrant reopening appellant’s claim for further merit review.
The evidence submitted by appellant 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. As she did not meet any of the necessary regulatory requirements, the Board finds that
she is not entitled to further merit review.6
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).

5

Patricia G. Aiken, 57 ECAB ___ (Docket No. 06-75, issued February 17, 2006).

6

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB __ (Docket No. 05-1738, issued November 8, 2005).

5

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 07-1884
Issued: December 26, 2007

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 July 10, 2007 appellant filed a timely appeal of a June 20, 2007 decision of the Office
of Workers’ Compensation Programs, denying his request for reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board also has jurisdiction over a March 7, 2007 decision
denying appellant’s request for an oral hearing.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for
reconsideration as untimely filed and lacking clear evidence of error; and (2) whether the Office
abused its discretion in denying his request for an oral hearing.
FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated November 1, 2005, the Board
affirmed a June 10, 2005 Office decision that terminated appellant’s compensation and medical
1

See Docket No. 05-1517 (issued November 1, 2005).

benefits.2 The facts of this case, as set forth in the prior decision, are incorporated herein by
reference.
On May 7, 2003 appellant, then a 57-year-old tractor trailer operator, sustained a low
back strain, sciatica and lumbosacral radiculopathy when his right leg fell between the loading
dock and a truck he was unloading. Appropriate compensation benefits were paid.
On March 8, 2006 appellant filed a claim for a recurrence of disability. He indicated that
his accepted medical conditions had never resolved and he was still receiving medical treatment
from his attending physician. On March 31, 2006 the Office requested additional information
regarding appellant’s recurrence of disability claim. In an August 8, 2006 letter regarding
appellant’s recurrence of disability claim, the Office advised him to exercise his appeal rights
included with the June 10, 2005 termination decision.
In a February 1, 2006 report, Dr. Rajbir S. Minhas, appellant’s attending Board-certified
orthopedic surgeon, noted that an October 2003 magnetic resonance imaging (MRI) scan
revealed a herniated disc at the L3-4 level. He asked the Office to amend appellant’s claim to
include a herniated disc. Dr. Minhas submitted progress notes dated June 7, 2005 through
October 24, 2006 in which he described his treatment of appellant for a lumbosacral sprain, facet
joint syndrome and iliac crest syndrome and provided findings on physical examination.
On November 3, 2006 appellant submitted a claim for a schedule award.3 In an
October 20, 2006 report, Dr. Martin Fritzhand reviewed a partial medical history. He did not
address the medical reports regarding the termination of appellant’s compensation and medical
benefits effective June 10, 2005. Dr. Fritzhand provided findings on physical examination. He
stated that appellant’s back pain had not improved since May 2003 and had worsened during the
past 6 to 12 months. Dr. Fritzhand opined that appellant had an 8.5 percent impairment of his
right lower extremity, based on the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment.4
In letters dated December 5, 2006 and February 2, 2007, the Office stated that appellant
was not entitled to a schedule award because the June 10, 2005 decision terminated his
compensation and medical benefits. On February 2, 2007 the Office advised appellant to
exercise his appeal rights provided with the June 10, 2005 decision.
On February 13, 2007 appellant requested an oral hearing on the February 2, 2007
“decision.”
By decision dated March 7, 2007, the Office denied appellant’s request for an oral
hearing on the grounds that his request could be equally well addressed through a request for
2

In its June 10, 2005 decision, the Office terminated appellant’s compensation and medical benefits based on the
March 11, 2005 report of Dr. Alan R. Kohlhass, a Board-certified orthopedic surgeon and an impartial medical
specialist.
3

Appellant submitted his schedule award claim in a letter rather than on an Office claim form.

4

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

2

reconsideration and the submission of additional medical evidence establishing that he had
residuals of his May 7, 2003 employment injury after June 10, 2005, the date his compensation
and medical benefits were terminated.
On April 13, 2007 appellant requested reconsideration of the denial of his schedule award
claim.5
By decision dated June 20, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to demonstrate clear evidence of
error.
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of the Federal Employees’ Compensation Act6 does not entitle a claimant
to a review of an Office decision as a matter of right.7 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.8 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the request for reconsideration is filed within one year of
the date of that decision.9 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).10
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.11 To establish clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by the Office.12 The evidence must be positive, precise and
explicit and must be manifest on its face that the Office committed an error.13 Evidence which
does not raise a substantial question concerning the correctness of the Office’s decision is

5

Although appellant indicated that he was filing a claim for an “additional” schedule award, he did not submit a
request for a schedule award until November 3, 2006, subsequent to the June 10, 2005 termination decision.
6

5 U.S.C. § 8128(a).

7

Thankamma Mathews, 44 ECAB 765 (1993).

8

Id. at 768.

9

20 C.F.R. § 10.607; see also Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005).

10

Thankamma Mathews, supra note 7 at 769.

11

20 C.F.R. § 10.607(b); see also Donna M. Campbell, 55 ECAB 241 (2004).

12

Dean D. Beets, 43 ECAB 1153 (1992).

13

Leona N. Travis, 43 ECAB 227 (1991).

3

insufficient to establish clear evidence of error.14 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.15 To show clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflict in
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.16 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.17
ANALYSIS -- ISSUE 1
The merits of appellant’s case are not before the Board. His request for reconsideration
was postmarked April 13, 2007. As this request was filed more than one year after the Office’s
June 10, 2005 merit decision, it is not timely.18 The remaining issue is whether appellant
demonstrated clear evidence of error in the June 10, 2005 Office decision which terminated his
compensation and medical benefits.
In support of appellant’s untimely request for reconsideration of the June 10, 2005
termination decision, he submitted a February 1, 2006 report in which Dr. Minhas noted that an
October 2003 MRI scan revealed a herniated disc at the L3-4 level. Dr. Minhas asked the Office
to amend appellant’s claim to include a herniated disc. He submitted progress notes dated
June 7, 2005 through October 24, 2006 in which he described his treatment of appellant for a
lumbosacral sprain, facet joint syndrome and iliac crest syndrome. The conditions of a herniated
disc, facet joint syndrome and iliac crest syndrome have not been accepted by the Office as
causally related to appellant’s May 7, 2003 employment injury. Therefore, the reports of
Dr. Minhas are of diminished probative value on the issue of whether appellant had any workrelated disability or medical condition after June 10, 2005 causally related to his accepted low
back strain, sciatica and lumbosacral radiculopathy. Further, as Dr. Minhas was on one side of
the conflict that Dr. Kohlhass resolved, the additional reports of Dr. Minhas are insufficient to
overcome the weight accorded Dr. Kohlhass’ report as the impartial medical examiner or to
create a new conflict.19 In an October 20, 2006 report, Dr. Fritzhand reviewed a partial medical
history but did not address the medical reports regarding the termination of appellant’s
compensation and medical benefits effective June 10, 2005. He stated that appellant’s back pain
had not improved since his May 2003 employment injury and had worsened during the past 6 to
12 months. Dr. Fritzhand also provided an impairment rating for appellant’s right lower
14

Darletha Coleman, 55 ECAB 143 (2003).

15

Leona N. Travis, supra note 13.

16

Darletha Coleman, supra note 14.

17

Pete F. Dorso, 52 ECAB 424 (2001).

18

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

19

See Jaja K. Asaramo, 55 ECAB 200 (2004).

4

extremity. He did not provide a specific diagnosis for his condition, just back “pain.”
Dr. Fritzhand did not explain how appellant’s worsening condition was causally related to his
May 7, 2003 employment injury. Further, his report is not based on a complete and accurate
factual and medical background because he did not address the medical reports considered by the
Office in issuing its termination decision. For these reasons, Dr. Fritzhand’s report does not
demonstrate clear evidence of error in the Office’s June 10, 2005 termination decision. The
medical evidence submitted by appellant does not raise a substantial question as to the
correctness of the Office’s June 10, 2005 merit decision terminating his compensation and
medical benefits. The Board finds that the Office properly found, in its June 20, 2007 decision,
that appellant’s untimely request for reconsideration failed to establish clear evidence of error in
the June 10, 2005 merit decision.20
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act, concerning a claimant’s entitlement to a hearing before an
Office hearing representative, states: “Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section 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.”21 A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: an oral hearing or a review of the written record. In addition to the
evidence of record, the claimant may submit new evidence to the hearing representative.22
ANALYSIS -- ISSUE 2
In a February 2, 2007 letter, the Office stated that appellant was not entitled to a schedule
award because the June 10, 2005 decision terminated his compensation and medical benefits,
finding that he had no residuals from his May 7, 2003 employment-related low back strain,
sciatica and lumbosacral radiculopathy. The Office advised appellant to exercise his appeal
rights provided with the June 10, 2005 decision. On February 13, 2007 appellant requested an
oral hearing on the February 2, 2007 “decision.” However, the February 2, 2007 letter was not a
formal decision regarding his schedule award claim. It was a letter advising appellant to exercise
the appeal rights provided with the June 10, 2005 termination decision. Another indication that
the February 2, 2007 letter is not a formal decision is that no appeal rights were attached to the
February 2, 2007 letter.
Inasmuch as appellant’s February 13, 2007 request for a hearing was not made within 30
days of the Office’s final decision, the Office properly concluded that appellant was not entitled
to a hearing as a matter of right. Moreover, the Office considered whether to grant a
discretionary review and correctly advised appellant that the issue could equally well be
20

The Board notes that the Office has not issued a final decision regarding appellant’s claims for a schedule
award and for a recurrence of disability. On return of the case record, the Office should issue an appropriate
decision on these claims.
21

5 U.S.C. § 8124(b)(1).

22

20 C.F.R. § 10.615.

5

addressed by requesting reconsideration. Accordingly, the Board finds that the Office properly
exercised its discretion in denying appellant’s untimely request for a hearing.
CONCLUSION
The Board finds that appellant has failed to demonstrate clear evidence of error in the
Office’s June 10, 2005 merit decision terminating his compensation and medical benefits. The
Board further finds that the March 7, 2007 decision was issued in error and will be set aside.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2007 is affirmed.
Issued: December 26, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
DEPARTMENT OF THE NAVY, TRAINING
COMMAND, Quantico, VA, Employer
__________________________________________

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

Docket No. 19-0375
Issued: July 3, 2019

Case Submitted on the Record

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

JURISDICTION
On December 10, 2018 appellant filed a timely appeal from an October 25, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish right elbow and
shoulder injuries causally related to the accepted September 12, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 25, 2018 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.

FACTUAL HISTORY
On September 17, 2018 appellant, then a 57-year-old maintenance worker, filed a traumatic
injury claim (Form CA-1) alleging that on September 12, 2018 he injured his right shoulder when
he pulled a door open while in the performance of duty. He stopped work on September 13, 2018.
A September 13, 2018 ultrasound study of the right upper extremity demonstrated a highgrade partial thickness tear of the distal biceps tendon with surrounding soft tissue edema or
hemorrhage.
September 14, 2018 magnetic resonance imaging scan studies of the right elbow
demonstrated a full-thickness distal biceps tendon tear with retraction, and degeneration or a partial
tear of the common extensor tendon origin.
In a report dated September 20, 2018, Dr. Kenneth J. Accousti, a Board-certified
orthopedic surgeon, noted that appellant had closed a door while at work on September 13, 2018
and felt a tearing sensation in his right elbow and the onset of right shoulder pain shortly afterward.
A primary care physician had prescribed medication. Dr. Accousti diagnosed right shoulder
bursitis and a distal biceps tendon rupture.
By development letter dated September 21, 2018, OWCP informed appellant that he had
not submitted sufficient factual or medical evidence to establish his claim. It advised him of the
type of factual and medical evidence needed and provided a questionnaire for his completion.
OWCP afforded appellant 30 days to submit the necessary information.
In a statement received by OWCP on September 25, 2018, appellant contended that a
supervisor had misstated on his claim form that the injury occurred when appellant had opened a
door. He asserted that on September 12, 2018 he experienced sudden counter pressure as he pulled
the mechanical room door shut and strained his right shoulder and elbow.
Kimberly McCue, a physician assistant, submitted reports dated September 13, 2018.
In an attending physician’s report (Form CA-20) dated September 14, 2018, Dr. Accousti
diagnosed a right distal biceps tendon rupture due to closing a door at work on September 12, 2018.
He responded “yes” to a question which asked if the diagnosed condition was due to the
employment incident described. Dr. Accousti held appellant off work through October 15, 2018.
In a September 17, 2018 duty status report (Form CA-17), Dr. Rafael O. Hernandez, a
Board-certified family practitioner, held appellant off work due to a right biceps tendon rupture.
He responded “yes” to a question which asked if the diagnosed condition was due to the claimed
September 12, 2018 employment incident.
In a September 20, 2018 report, Dr. Accousti diagnosed a right distal biceps tendon rupture
and right shoulder bursitis. On September 28, 2018 he performed a right distal biceps tendon
repair.

2

In a duty status report (Form CA-17) dated October 11, 2018, Dr. Accousti diagnosed a
right “Popeye deformity” (long biceps tendon head rupture). He held appellant off work through
November 8, 2018.
Appellant also submitted an October 11, 2018 report from Joy R. Shewbridge, a physician
assistant.
By decision dated October 25, 2018, OWCP accepted that the September 12, 2018
employment incident occurred, but denied appellant’s claim as the medical evidence of record was
insufficient to establish causal relationship, as it did not include sufficient medical rationale from
a physician explaining how his diagnosed conditions were causally related to the accepted
employment incident. It concluded, therefore, that the requirements had not been met to establish
an employment-related injury or medical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged.7 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.8

3

C.B., Docket No. 18-0071 (issued May 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (issued 2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
C.B., supra note 3; K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB
992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

C.B., supra note 3; D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB
1143 (1989).
8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

3

Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is causal
relationship between the employee’s diagnosed condition and the accepted employment incident.10
The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment incident identified by the employee.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right elbow and
shoulder injuries causally related to the accepted September 12, 2018 employment incident.
Appellant submitted a series of reports from Dr. Accousti, noting the accepted
September 12, 2018 employment incident and diagnosing right shoulder bursitis and a right distal
biceps tendon rupture. In a September 14, 2018 attending physician’s report (Form CA-20),
Dr. Accousti responded “yes” to a question indicating his support for a causal relationship between
the September 12, 2018 employment incident and the diagnosed right distal biceps tendon rupture.
Appellant also submitted a duty status report (Form CA-17) from Dr. Hernandez, who responded
“yes” to a form question on causal relationship. The Board has held that a medical report is of
limited probative value regarding causal relationship if it does not contain medical rationale
explaining how a given medical condition was related to employment factors.12 When a
physician’s opinion on causal relationship consists only of checking a box “yes” in response to a
form question, without explanation or rationale, that opinion has limited probative value and is
insufficient to establish a claim.13 As appellant’s physicians did not provide medical rationale as
to the cause of appellant’s diagnosed conditions, their reports are insufficient to establish his claim.
Appellant also submitted reports signed solely by Ms. McCue or Ms. Shewbridge, both
physician assistants. These reports do not constitute competent medical evidence because a
physician assistant is not considered a “physician” as defined under FECA.14 Under FECA the
term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by the
applicable state law.15 Consequently, the medical findings and/or opinions of a physician assistant
9

C.B., supra note 3; Y.J., Docket No. 18-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-156 (2006);
D’Wayne Avila, 57 ECAB 642, 649 (2006).
10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

11

C.B., supra note 3; I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

C.B., supra note 3; see Y.D., Docket No. 16-1896 (issued February 10, 2017).

13

K.M., Docket No. 18-1740 (issued May 10, 2019); L.M., Docket No. 18-1274 (issued February 6, 2019).

14

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

15

5 U.S.C. § 8101(2).

4

are of no probative value and will not suffice for purposes of establishing entitlement to
compensation benefits16
Finally, appellant has submitted diagnostic imaging studies in support of his claim. The
Board has explained that diagnostic studies lack probative value as they do not address whether
the employment incident caused any of the diagnosed conditions.17 These reports are therefore
also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence to support his allegation that
he sustained right shoulder and right elbow injuries causally related to the accepted employment
incident of September 12, 2018, the Board finds that he has not met his burden of proof to establish
a claim.18
On appeal appellant argues that he sustained an injury work on September 12, 2018. For
the reasons set forth above, appellant has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right shoulder
and elbow injuries causally related to the accepted September 12, 2018 employment incident.

16

C.B., Docket No. 18-0040 (issued May 7, 2019); K.W., supra note 14.

17

C.B., supra note 3; see J.S., Docket No. 17-1039 (issued October 6, 2017).

18

C.B., id.

5

ORDER
IT IS HEREBY ORDERED THAT the October 25, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2019
Washington, DC

Patricia H. Fitzgerald, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eatontown, NJ, Employer
__________________________________________

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

Docket No. 14-512
Issued: July 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 7, 2014 appellant, through her attorney, filed a timely appeal from an
October 7, 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.
ISSUE
The issue is whether appellant has established a recurrence of total disability on June 15,
2010 causally related to her December 1, 2009 work injury.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 23, 2013, the
Board set aside OWCP’s August 23, 2012 decision denying reconsideration. A limited review of
the May 17, 2012 report of Dr. Michael J. Cunningham, a Board-certified orthopedic surgeon,
1

5 U.S.C. § 8101 et seq.

contained a new opinion regarding the cause of appellant’s avascular necrosis of the right hip,
hip replacement, back, shoulder and carpal tunnel conditions. The Board remanded the case for
a merit decision on appellant’s recurrence claim.2 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference.
Appellant’s claims of traumatic injury a December 1, 2009 was accepted for a right hip
strain sustained while moving mail hampers. She stopped work from December 3, 2009 to
January 3, 2010 and returned to full-time regular duty on January 4, 2010.
Appellant stopped work on June 15, 2010 and did not return. On June 20, 2010 she filed
a recurrence of disability claim alleging that her June 15, 2010 work stoppage was causally
related to her December 1, 2009 work injury.
Appellant submitted reports from
Dr. Cunningham, a Board-certified orthopedic surgeon. On June 15, 2010 Dr. Cunningham
noted her history of injury and diagnosed right hip avascular necrosis, stage four. He discussed
continued conservative treatment and a total hip replacement with appellant. On June 25, 2010
Dr. Cunningham requested authorization for total hip replacement surgery. On August 30, 2010
OWCP also received a July 20, 2010 addendum report from Dr. Kimberly Atienza, an internist,
who summarized appellant’s treatment for right hip pain. Dr. Atienza concluded that, following
June 14, 2010, appellant’s hip pain recurred and she was no longer physically able to work.
By decision dated November 9, 2010, OWCP denied the recurrence claim. It found that
the factual and medical evidence was insufficient to establish that the claimed recurrence
resulted from the accepted work injury.
On November 15, 2010 appellant requested a hearing, which was held on
March 31, 2011. She asserted that her avascular necrosis and right shoulder condition were due
to her accepted hip injury. On June 5, 2011 appellant submitted additional reports from
Dr. Cunningham. On August 10, 2010 Dr. Cunningham listed an impression of probable
avascular necrosis with severe degenerative changes of the right hip. On September 9 and 23,
2010 he noted an impression of severe degenerative changes of the right hip, secondary to injury
sustained on December 1, 2009. On November 4, 2010 Dr. Cunningham noted an impression of
severe degenerative changes of the right hip, secondary to hip injury, including the sprain, which
occurred on December 1, 2009 originally with a reinjury occurring on June 14, 2010, as
previously described.
Records from the Bayshore Community Hospital dated January 19, 2011 state that
appellant underwent surgery for a total right hip replacement on January 19, 2011. Appellant’s
postoperative diagnosis was stated as right hip osteoarthritis.
By decision dated June 28, 2011, an OWCP hearing representative affirmed the
November 9, 2010 decision. The hearing representative found that appellant did not establish
that her necrotic hip condition was currently related to the December 1, 2009 work incident.
Further, the medical evidence was insufficient to support that the accepted hip strain caused her
June 15, 2010 recurrence of disability.

2

Docket No. 12-1830 (issued May 23, 2013).

2

On October 3, 2011 appellant’s attorney requested reconsideration of the June 28, 2011
OWCP decision. He argued that Dr. Cunningham provided medical rationale to establish that
the recurrence of injury beginning June 14, 2010 and appellant’s subsequent right hip
replacement surgery were directly related to the December 1, 2009 work injury. Counsel
contended that her right shoulder condition was also a result of her hip replacement surgery and
rehabilitation. In a March 15, 2011 report, Dr. Cunningham listed diagnoses of status post total
right hip replacement, bilateral shoulder impingement and possible early mild right carpal tunnel
symptoms. On April 26, 2011 he noted an impression of status post right total hip replacement
with some intermittent pain. Dr. Cunningham repeated the hip and shoulder diagnoses on
May 10 and June 14, 2011.
In a narrative report dated October 10, 2011, Dr. Cunningham explained that he had
treated appellant for her right hip injury since June 15, 2010. An x-ray evaluation performed in
his office revealed severe degenerative changes of the right hip, consistent with avascular
necrosis, stage four. Dr. Cunningham also reviewed an x-ray from the date of injury,
December 1, 2009, which revealed some mild irregularity of the femoral head. This was
consistent with an early collapse of the articular surface and attributable to early avascular
necrosis. Based upon the radiographic findings, appellant’s accepted injury resulted in a severe
exacerbation of a previously undiagnosed underlying condition, avascular necrosis of the right
hip, which necessitated the right hip replacement surgery.
By decision dated January 5, 2012, OWCP denied modification of the June 28, 2011
decision.
Appellant, through counsel, requested reconsideration on May 25, 2012. Counsel argued
that Dr. Cunningham’s report supported the causal relationship between her right hip condition
and the resulting surgery and her December 1, 1999 work injury. In January 5, 2012 report,
Dr. Cunningham related appellant’s diagnoses as status post right hip replacement, chronic low
back pain, rule out carpal tunnel syndrome and status post old right shoulder arthroscopy with
recurrent impingement symptoms. On May 17, 2012 he noted that he first saw appellant on
June 15, 2010 for complaints of right hip pain. Dr. Cunningham related that he performed x-rays
on that date, which revealed stage-four avascular necrosis with severe degenerative changes. He
noted the history of appellant’s December 1, 2009 work injury and stated that the x-rays taken on
the date of injury revealed mild irregularity of the femoral head consistent with the earliest stages
of avascular necrosis. Dr. Cunningham performed a total right hip replacement surgery on
January 19, 2011. He addressed appellant’s progress postoperatively, including bilateral
shoulder pain and a mild flare of carpal tunnel syndrome as a result of walker usage related to the
surgery. Dr. Cunningham diagnosed avascular necrosis of the right hip, with right hip strain; low
back pain with right radiculopathy; carpal tunnel syndrome of the right wrist and right shoulder
impingement syndrome. He opined that the work-related right hip strain exacerbated appellant’s
previous underlying hip pathology of avascular necrosis and worsened her hip degeneration
which caused a recurrence of disability. Dr. Cunningham opined that her low back pain, with
right radiculopathy, was related to the work injury as a consequence of the stress from gait
alteration, as a result of the injury and subsequent hip problems. He opined that the carpal tunnel
syndrome and right shoulder impingement syndrome, while preexisting, were also causally
related to the injury as a result of stress due to chronic usage of assistive walking devices that
were needed because of the altered gait resulting from the hip injury.

3

By decision dated August 23, 2012, OWCP denied appellant’s request for
reconsideration.
On remand additional treatment records reports from Dr. Cunningham dated February 15,
2011 through September 6, 2012 were submitted to the record.
By decision dated October 7, 2013, OWCP denied modification of its January 5, 2012
decision.
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.3 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 the employment injury and supports that
conclusion with sound medical rationale.4 Where no such rationale is present, medical evidence
is of diminished probative value.5
ANALYSIS
OWCP accepted that on December 1, 2009 appellant sustained a right hip sprain when
she applied pressure to her right leg to get the mail hamper cart into the “tight” set up and felt a
pulling, tearing feeling at the hip/groin area over her right leg. Appellant filed a claim alleging
that she sustained a recurrence of disability on June 15, 2010 due to her December 1, 2009 work
injury. Specifically, she is asserting that right hip avascular necrosis with resultant total right hip
replacement and other conditions such as right shoulder and right carpal tunnel conditions, which
resulted from her altered gait were causally related to the December 1, 2009 work injury.
The Board finds that appellant did not meet her burden of proof to submit medical
evidence establishing a recurrence of disability. None of the medical evidence submitted by her
contains a rationalized opinion on causal relationship.
In the July 20, 2010 report, Dr. Atienza noted appellant’s treatment for hip pain and
concluded that she could no longer work due to hip pain which recurred June 14, 2010.
However, she did not offer a firm diagnosis or any medical rationale as to why appellant’s hip
pain recurred or whether it was causally related to the December 1, 2009 work injury.

3

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986). Under
20 C.F.R. § 10.5(x), a recurrence of disability is defined, in part, as 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.
4

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

Several reports were received from Dr. Cunningham, who diagnosed right hip avascular
necrosis for which appellant eventually underwent total right hip replacement. He also noted
several other medical conditions. However, in the majority of his reports, Dr. Cunningham did
not offer an opinion regarding the cause of the avascular necrosis or the other medical
conditions.6 In his October 10, 2011 report, he stated that an x-ray from the date of injury,
December 1, 2009, revealed some mild irregularity of the femoral head, which was consistent
with an early collapse of the articular surface, consistent with early avascular necrosis. Based on
the radiographic finding, Dr. Cunningham concluded that appellant’s accepted injury resulted in
a severe exacerbation of a previously undiagnosed underlying condition, avascular necrosis of
the right hip, which necessitated the right hip replacement. He, however, failed to provide a
well-reasoned explanation as to how avascular necrosis of the right hip was aggravated by the
December 1, 2009 employment incident and whether and how the accepted right hip sprain
caused the claimed June 15, 2010 recurrence of disability. Medical conclusions unsupported by
rationale are of little probative value.7
In his May 17, 2012 report, Dr. Cunningham again related that the x-rays taken on the
date of injury revealed mild irregularity of the femoral head consistent with the earliest stages of
avascular necrosis. He opined that the work-related right hip strain exacerbated appellant’s
previous underlying hip pathology of avascular necrosis of the right hip and that the worsening
of her hip degeneration caused the recurrence of disability. Dr. Cunningham opined that her low
back pain, with right radiculopathy, was related to the work injury as a consequence of the stress
from gait alteration, as a result of the injury and subsequent hip problems. He also opined that
the carpal tunnel syndrome and right shoulder impingement syndrome, while preexisting, was
also related to the injury as a result of stress due to chronic usage of assistive walking devices
that were needed because of the altered gait as a result of the hip injury. However,
Dr. Cunningham’s opinions lack sufficient medical rationale as no explanation is provided why
appellant’s hip pathology was exacerbated by the December 1, 2009 employment injury. He
merely states that the underlying hip pathology of avascular necrosis of the right hip was
undiagnosed and was exacerbated with no medical explanation as to how or why this occurred
was not provided. Medical conclusions unsupported by rationale are of little probative value.8
The evidence is insufficient to establish that the avascular necrosis and hip replacement
are causally related to the employment injury.9
On appeal, appellant, through counsel, argues that Dr. Cunningham’s medical reports
establish that her preexisting undiagnosed avascular necrosis condition was exacerbated at the
time of injury which resulted in a hip replacement and other medical conditions. However, the

6

Michael E. Smith, 50 ECAB 313 (1999) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship).
7

Willa M. Frazier, 55 ECAB 379, 384 (2004).

8

See M.W., 57 ECAB 710 (2006).

9

Other diagnosed conditions of right carpal tunnel syndrome and right shoulder impingement have not been
adjudicated by OWCP and are not presently before the Board.

5

medical evidence did not contain either a firm diagnosis or a rationalized explanation as to how
the accepted incident caused or aggravated the avascular necrosis condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability on or after June 15, 2010 due to her December 1, 2009 work
injury.
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2013 decision of the Office of
Workers’ Compensation Programs affirmed.
Issued: July 9, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
J.L., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Newcastle, DE, Employer
)
___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1114
Issued: October 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 4, 2016 appellant, through counsel, filed a timely appeal of a March 22, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on February 19, 2015.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 13, 2015 appellant, then a 49-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 19, 2015 he stepped on a snow-covered
brick while working and fractured his left ankle. The employing establishment controverted the
claim. Appellant’s supervisor, Donna Smalls, indicated that she noticed appellant walking with a
limp before the date of injury. She questioned whether appellant had a preexisting injury.
Appellant stopped work on February 19, 2015.
In a March 19, 2015 letter, the employing establishment again controverted the claim.
Ms. Smalls explained that she walked with appellant on his route on February 2, 2015 and
noticed that he was walking with a limp then.
By letter dated April 2, 2015, OWCP informed appellant of the type of evidence needed
to support his claim and requested that he submit such evidence within 30 days. Included with
the letter was a questionnaire in which OWCP asked appellant to describe in detail how the
claimed injury occurred and why he waited three weeks to report his injury to the employing
establishment and to seek medical treatment.
In a February 9, 2015 report, Dr. Cynthia Good, a Board-certified family practitioner,
noted that an x-ray of the left ankle revealed a sprain/strain. She advised that they would keep a
splint on it for three weeks. Dr. Good recommended an orthopedic surgeon if the ankle did not
heal.3 In another February 9, 2015 report, she advised that appellant “stepped in hole in yard one
week ago” and still had moderate left ankle medial pain. Dr. Good diagnosed ankle sprain/strain
and noted ankle swelling on examination.
In a February 26, 2015 report, Dr. Anthony M. Caristo, a podiatric surgeon, noted that
appellant presented with pain for about one month in the left ankle and lateral foot. He indicated
that appellant was a mail carrier and injured the left ankle twice over the last month, but denied
hearing a snap or crack. Dr. Caristo diagnosed degenerative joint disease (DJD), limb pain,
tenosynovitis of the foot and ankle, and capsulitis. February 27, 2015 left foot x-rays revealed
no evidence of fracture, dislocation, or osteomyelitis. In a March 2, 2015 report, Dr. Caristo
advised that appellant presented with left lateral foot and ankle pain of one month’s duration.
Appellant noted that his right foot was painful due to him favoring his left foot. Dr. Caristo
diagnosed bursitis, tibialis tendinitis, DJD, and limb pain. On March 3, 2015 he stated that right
foot x-rays showed no evidence of fracture, dislocation, or osteomyelitis. Dr. Caristo saw
appellant on March 9, 2015 and found tibialis tendinitis, ankle sprain, limb pain, and DJD.
In a March 12, 2015 progress note, Dr. Caristo stated that appellant presented with
complaints of left ankle and foot pain for more than six months. He noted that it was aggravated
by any physical activity. Dr. Caristo noted that appellant was a mail carrier and injured his left
ankle two times over the past month, but denied hearing a pop, snap or crack. He diagnosed
stress fracture of tibia or fibula, capsulitis, limb pain, and foot and ankle tenosynovitis.
Dr. Caristo prescribed a removable cast.4 In a March 19, 2015 attending physician’s report, he
3

A February 9, 2015 left ankle x-ray read by Dr. Lloyd D. Wagner, a Board-certified diagnostic radiologist,
revealed no acute bone abnormality.
4

A March 10, 2015 magnetic resonance imaging (MRI) scan report found a fracture of the distal end of the tibia
that was either a nondisplaced fracture or insufficiency fracture with prominent surrounding marrow edema.

2

advised that there was no preexisting injury. Dr. Caristo diagnosed stress fracture and placed
appellant off work for six to eight weeks. He saw appellant on April 9, 2015 and noted that
appellant related that he had almost 60 percent improvement with the removable cast from his
last visit. Dr. Caristo continued to treat appellant.
In an April 27, 2015 letter, appellant explained that he believed that he had a bad sprain
and reported it to his supervisor, who gave him a week off for rest. He indicated that there was
no improvement with a week off and he sought treatment, which revealed a fracture to the left
ankle. Appellant explained that he had no other injuries and that he reported that he twisted his
ankle in a hole two weeks prior on the job. He advised that he stepped on a snow-covered brick
while delivering mail and his ankle twisted. Appellant advised that he continued to work
thinking it was only a bad sprain. He indicated that he had been off work since February 19,
2015, as his physician had not cleared him to return to work.
By decision dated May 12, 2015, OWCP denied appellant’s claim, finding that he had not
established the factual component of his claim. It noted that the evidence was insufficient to
establish the specific event or events that he was claiming. OWCP noted that appellant, on his
claim form, identified his injury as occurring on February 19, 2015, but that Dr. Good saw him
on February 9, 2015 for an injury to his ankle while Dr. Caristo indicated that he had pain in his
foot and ankle for over six months before the reported injury. It explained that it appeared that
he had a preexisting injury.
On May 20, 2015 counsel requested a telephonic hearing, which was held before an
OWCP hearing representative on January 12, 2016. During the hearing, appellant explained that
he recalled stepping on a brick at work on February 19, 2015, while being with his supervisor,
and he did not want to report it because he was new on the job and he thought it was just a bad
sprain. He explained that his reason for not going to the hospital was that he would see if it
would get better. On questioning by the hearing representative with regard to the February 9,
2015 date of injury reported by doctors on February 9, 2015, appellant indicated that he was
unsure of the date. He was informed that there were inconsistencies regarding his date of injury.
Dr. Caristo continued to treat appellant and submit reports. He released appellant to full
duty with no restrictions on May 22, 2015. OWCP also received copies of previously submitted
reports.
In a March 22, 2016 decision, an OWCP hearing representative affirmed the May 12,
2015 decision. She found that the evidence did not refer to any injury occurring on
February 19, 2015. The hearing representative explained that the medical evidence referred to
pain beginning from three days to a week prior to February 9, 2015. However, appellant did not
report the injury until March 13, 2015. The hearing representative also noted that, while
appellant reiterated at the hearing that the incident occurred on February 19, 2015 he had no
explanation for the medical evidence dated before that. She found that because of the
inconsistencies in the medical and factual evidence appellant did not meet his burden of proof to
establish an injury as claimed.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
3

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA5 and that an injury was sustained in the performance of duty.6 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.8 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.9 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.10
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action.11 A consistent history of the injury as reported on medical reports to the
claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of the
incident.12 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.13 Although an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence,14 an
employee has not met this burden when there are inconsistencies in the evidence such as to cast
serious doubt upon the validity of the claim.15

5

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

6

James E. Chadden, Sr., 40 ECAB 312 (1988).

7

Delores C. Ellyett, 41 ECAB 992 (1990).

8

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (August 2012).
9

John J. Carlone, 41 ECAB 354 (1989).

10

See id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee).

11

Rex A. Lenk, 35 ECAB 253, 255 (1983).

12

Id. at 255-56.

13

Dorothy M. Kelsey, 32 ECAB 998 (1981).

14

Id.

15

Joseph A. Fournier, 35 ECAB 1175 (1984).

4

ANALYSIS
The Board finds that appellant has not established fact of injury due to inconsistencies in
the evidence that cast serious doubt as to whether the specific traumatic incident occurred at the
time, place, and in the manner alleged on February 19, 2015.
The Board finds that appellant’s statements are insufficient to establish the claimed
incident due to the conflicting evidence regarding when the claimed injury occurred. On the
March 13, 2015 traumatic injury claim form, appellant indicated that on February 19, 2015 he
injured his left ankle when he stepped on a snow-covered block. However, the employing
establishment controverted the claim and Ms. Smalls advised that she noticed that appellant had
been walking with a limp prior to that date. Ms. Smalls explained that on February 21, 2015 she
walked with him and she suggested that his medical history should be reviewed. She also
indicated that appellant drove a car with a handicap permit and it was possible that appellant had
a prior injury before he came to the employing establishment. Ms. Smalls further noted in a
March 19, 2015 letter that she had walked his route on February 2, 2015 and noticed that at that
time he was walking with a limp then.
On April 27, 2015 appellant explained that he believed he had a bad sprain and reported
it to his supervisor, who gave him a week off for rest. He indicated there was no improvement
with a week off and he sought treatment which revealed a fracture. Appellant explained that he
had no other injuries and that he reported that he twisted his ankle two weeks prior on the job,
noting that he stepped on a snow covered brick and his ankle twisted. He was questioned during
the January 12, 2016 hearing and explained that he recalled stepping on a brick at work on
February 19, 2015, while being with his supervisor, and he did not want to report it because he
was new on the job and he thought it was just a bad sprain. Appellant reiterated that he did not
seek medical treatment sooner because he wanted to see if it would improve. However, when
OWCP’s hearing representative questioned him with regard the February 9, 2015 date of injury
reported by doctors on February 9, 2015, appellant indicated that he was unsure of the date. The
Board notes that the contemporaneous medical evidence suggests that appellant had an injury
before February 9, 2015. For example on February 9, 2015 appellant was examined by
Dr. Good, who noted that appellant “stepped in hole in yard one week ago” and continued to
have left ankle pain. In a February 26, 2015 report, Dr. Caristo noted that appellant had
presented with left ankle pain for about one month. The Board notes that these statements and
supporting documents show inconsistencies regarding the date of injury and with regard to
appellant’s account of how the claimed injury occurred and events occurring near the time of the
claimed injury.
The circumstances of this case, therefore, cast serious doubt upon the occurrence of a
February 19, 2015 incident in the manner as described by appellant. Given the inconsistencies in
the evidence regarding how he sustained his injury, the Board finds that there is insufficient
evidence of record to establish that appellant sustained a traumatic incident in the performance of
duty on February 19, 2015, as alleged.16 As appellant has not established that the claimed

16

See Matthew B. Copeland, 6 ECAB 398, 399 (1953) (where the Board found that discrepancies and
inconsistencies in appellant’s statements describing the injury created serious doubts that the injury was sustained in
the performance of duty); see also Mary Joan Coppolino, 43 ECAB 988 (1992).

5

incident occurred, it is not necessary to consider the medical evidence with respect to causal
relationship.17
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 this appellant did not meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on February 19, 2015.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

S.P., 59 ECAB 184 (2007) (where a claimant did not establish an employment incident alleged to have caused
his or her injury, it was not necessary to consider any medical evidence).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Klamath Falls, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John Eiler Goodwin, Esq., for the appellant
Jaclyn D. Goldstein, Esq., for the Director

Docket No. 08-1373
Issued: October 20, 2008

Oral Argument September 11, 2008

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

JURISDICTION
On April 8, 2008 appellant timely appealed the March 27, 2008 merit decision of the
Office of Workers’ Compensation Programs, which terminated her compensation and medical
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective March 27, 2008.
FACTUAL HISTORY
Appellant, a 53-year-old letter carrier, has an accepted claim for generalized anxiety
disorder and depression (in partial remission), which arose on or about August 12, 1999. The
Office placed her on the periodic compensation rolls. On two prior occasions the Office
terminated appellant’s wage-loss compensation and medical benefits. However, in both
instances the Branch of Hearings & Review reversed the termination decisions.

Due to a conflict in medical opinion the Office referred appellant to Dr. Eric E.
Goranson, a Board-certified psychiatrist, for an impartial medical evaluation.1 In a June 7, 2006
report, Dr. Goranson found there was no current debilitating psychiatric symptomatology and no
need for further psychiatric treatment. The Office relied upon Dr. Goranson’s opinion to
terminate benefits effective November 9, 2006. On June 26, 2007 the Branch of Hearings &
Review again set aside the termination of benefits and ordered that wage-loss compensation be
reinstated retroactive to November 9, 2006. The hearing representative found that Dr. Goranson
had not been provided a complete copy of the record or appellant’s initial psychiatric evaluation
dated September 16, 1999. The hearing representative instructed the Office to provide
Dr. Goranson with appellant’s entire medical record, including treatment she received in 1999.
On remand, the Office did not return the case to Dr. Goranson as instructed, but instead
issued a February 25, 2008 pretermination notice. It again proposed to terminate benefits based
on Dr. Goranson’s June 7, 2006 report. While acknowledging the hearing representative’s
June 26, 2007 instructions, the claims examiner noted that Dr. Goranson had previously provided
a complete copy of the file, including all medical records. Moreover, appellant had not provided
a copy of Dr. Davis’ September 16, 1999 initial evaluation or any other chart notes for medical
treatment she reportedly received in 1999. The Office advised appellant that it would base its
final decision on the current record if it did not receive a copy of Dr. Davis’ initial evaluation or
any other 1999 treatment records. During the 30-day period that followed, it received a
January 23, 2008 progress report from Dr. Davis. Appellant, however, did not resubmit any of
the 1999 treatment records. On March 27, 2008 the Office again terminated compensation and
medical benefits based on Dr. Goranson’s June 7, 2006 report.
Appellant filed the instant appeal on April 8, 2008 and requested oral argument. On
August 21, 2008 the Office filed a motion to remand and cancel oral argument. It acknowledged
that the 1999 treatment records were already part of the record and this information should have
been forwarded to Dr. Goranson. Because his June 7, 2006 medical opinion was based on an
incomplete record, the Office conceded that this report was insufficient to terminate appellant’s
benefits. It proposed remanding the case to Dr. Goranson as previously instructed by the hearing
representative. Appellant’s counsel opposed the motion which was denied by the Board on
September 5, 2008.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
1

The Office declared a conflict between appellant’s treating psychiatrist, Dr. William E. Davis and Dr. Roger E.
Jacobson, a Board-certified psychiatrist and Office referral physician.
2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

2

of entitlement to compensation for disability.4 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.5
ANALYSIS
On appeal, the Office conceded that Dr. Goranson’s June 7, 2006 opinion was based on
an incomplete record. The Board agrees. Dr. Davis’ September 16, 1999 report and other
treatment records from 1999 are part of the record. The impartial medical examiner,
Dr. Goranson, was not provided access to this information. Accordingly, the Board finds that
Goranson’s June 7, 2006 opinion was based on an incomplete record.6 As such, Dr. Goranson’s
opinion is insufficient to meet the Office’s burden to terminate appellant’s benefits.
Consequently, the March 27, 2008 decision terminating benefits is reversed.
CONCLUSION
The Office did not meet its burden to terminate appellant’s compensation and medical
benefits. Appellant’s entitlement to wage-loss compensation will be reinstated retroactive to
March 27, 2008.

4

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

5

Calvin S. Mays, 39 ECAB 993 (1988).

6

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).

3

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 20, 2008
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

4