United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooksville, FL, Employer
__________________________________________

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

Docket No. 14-31
Issued: April 10, 2014

Case Submitted on the Record

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

JURISDICTION
On October 9, 2013 appellant filed a timely appeal from a September 23, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating her wage-loss
compensation. Pursuant to the Federal Employees’ Compensation Appeals 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 OWCP properly terminated appellant’s compensation on
October 20, 2013 as she refused suitable work under 5 U.S.C. § 8106(c)(2).2
On appeal, appellant contends that she declined under her physician’s direction due to
multiple medical conditions that made her unable to perform the job.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, on appeal, appellant raised the issue of a schedule award. As there is no final decision on
this aspect of her claim, it is not before the Board. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On July 23, 2011 appellant, then a 54-year-old rural mail carrier, injured her right
shoulder rotator cuff while lifting a heavy package. On September 13, 2011 OWCP accepted her
claim for recurrent right shoulder rotator cuff tear with retraction. On October 18, 2011
appellant underwent a right shoulder arthroscopy.
In an October 1, 2012 report, Dr. Jeffrey D. Stone, a treating Board-certified orthopedic
surgeon with a subspecialty in surgery of the hand, noted that appellant was seen for an 11month follow up from right rotator cuff revision surgery. Appellant had undergone physical
therapy, but still complained of right shoulder pain at rest and especially with motion. Dr. Stone
noted that she also complained of psoriatic arthritis. He advised that appellant had work
restrictions on her right shoulder prohibiting lifting over 25 pounds from floor to thigh or greater
than 10 pounds overhead.
In a February 25, 2013 report, Dr. Stone noted that appellant had history of a recurrent
rotator cuff status post revision repair performed on October 18, 2011. He also noted that she
had a new complaint of left shoulder pain. Appellant brought in a magnetic resonance imaging
(MRI) scan report of the left shoulder from an outside facility dated February 8, 2013. The
report noted degenerative changes of the acromioclavicular joint with mild downward
impingement. Dr. Stone noted no rotator cuff tear or tendinitis. He advised that the left shoulder
condition was not employment related. Dr. Stone reiterated that appellant’s functional capacity
restrictions remained at lifting less than 25 pounds floor to thigh and less that 10 pounds
overhead. With regard to the left shoulder, appellant would follow up under her regular
insurance.
In a May 23, 2013 letter, the employing establishment informed Dr. Stone that appellant
had refused a job offer for a sedentary position as a sales solution team member, with the date of
job offer January 23, 2013. It provided the physician with a copy of the job offer and asked him
whether she was able to perform the duties. The duties consisted of contacting customers by
telephone, light typing, answering telephone and administrative type duties. The employing
establishment asked Dr. Stone whether, based on his restrictions, appellant would be able to
perform the job duties of assisting customers in the lobby and retrieving mail for customers, as
long as it weighed less than 25 pounds. On June 7, 2013 Dr. Stone checked the line marked
“yes.”
On June 12, 2013 the employing establishment made a job offer to appellant as a
modified rural carrier. The description of duties was to be a lobby director -- assisting customers
in the completion of forms, ensuring that the lobby had sufficient supply of forms and retrieve
accountable or hold mail for customers if it involved lifting less than 25 pounds from floor to
thigh.
In a June 17, 2013 letter, the employing establishment, through a health and resource
management specialist, noted that Dr. Stone advised that appellant was able to work. On
June 12, 2013 it provided a new job offer and scheduled her for an interview, but she failed to
show. Dr. Stone noted that the job offer was based on the restrictions dated February 25, 2013,

2

which noted that appellant could lift 25 pounds from floor to thigh and no more than 10 pounds
overhead.
On July 12, 2013 OWCP informed appellant that it found the offered position to be
within her medical limitations as set by Dr. Stone. Appellant had 30 days to report for duty. If
she failed to accept the position, she was asked to provide a written explanation of the reasons
for her refusal within 30 days.
By letter dated July 25, 2013, appellant stated that in the last two years her diseases
became worse and that she was under 14 medications and weekly shots. She contended that she
was unable to work at all and was in constant pain. In a February 14, 2013 report, Dr. Anas
Moureiden, a Board-certified rheumatologist, diagnosed psoriatic arthritis and Sjogren’s disease;
spondylarthritis and osteoarthritis with arthralgias and myalgias; tenderness of the
hips/trochanteric bursae and of the superior/inferior S1 joints; hypothyroidism; fatty liver;
hyperlipidemia; gastroesophageal reflux disease; and episodes of hypokalemia. He opined that
appellant had total and permanent disability due to all of the above. In a brief note dated
March 20, 2013, Dr. Dhammika Ekanayake, a Board-certified internist, stated that she was
known to him for several years and was disabled due to multiple medical problems that impaired
her ability to work.
By letter to OWCP dated August 12, 2013, the employing establishment advised that
appellant had not contacted them or returned to work.
On August 28, 2013 OWCP informed appellant that her reasons for refusing the job were
not acceptable. The offered position continued to be available and she had 15 additional days to
accept the position. If appellant did not accept the position, her entitlement to monetary benefits
would be terminated.
By letter dated September 12, 2013, a representative from the employing establishment
advised that appellant had not returned to work and that the job offer of June 12, 2013 was still
available.
In a September 23, 2013 decision, OWCP terminated appellant’s entitlement to monetary
compensation effective October 20, 2013 due to her refusal of suitable work. It noted that this
did not affect coverage of medical benefits.
LEGAL PRECEDENT
It is well settled that, once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.3 Section 8106(c)(2) of FECA provides
that a partially disabled employee who refuses or neglects to work after suitable work is offered
to, procured by or secured for the employee is not entitled to compensation.4 Section
8106(c)(2) will be narrowly construed as it serves as a penalty provision, which may bar an

3

See also R.W., Docket No.13-428 (issued January 8, 2014); see Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

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employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.5
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
ANALYSIS
The Board finds that OWCP properly terminated appellant’s compensation on the
grounds that she refused suitable work.
OWCP accepted a recurrent right shoulder rotator cuff tear with retraction as a result of
the July 23, 2011 employment-related injury. Appellant received treatment from Dr. Stone, who
set work restrictions on October 1, 2012 as no lifting more than 25 pounds from the floor to thigh
level or lifting more than 10 pounds overhead. Dr. Stone reiterated the restrictions in subsequent
medical reports. In response to a query from the employing establishment, he advised that
appellant would be able to perform the work of assisting customers in the lobby and retrieving
mail, as long as it weighed less than 25 pounds.
The job offered by the employing establishment on June 12, 2013 was within the
restrictions set forth by Dr. Stone. The position involved assisting customers in the lobby and
involved lifting no more than 25 pounds from floor to thigh. The Board finds that OWCP
provided appellant with proper notice and opportunities to accept the offered position and
informed her of the consequences of her failure to do so. The medical evidence of record is not
sufficient to establish that she was unable to perform the offered work, especially in light of the
well-rationalized opinion of Dr. Stone. Dr. Ekanayake’s brief statement that appellant was
disabled due to multiple medical problems did not specifically address her accepted injury or
provide any explanation in support of his conclusion. Dr. Moureiden did not address her
accepted condition of right rotator cuff tear, but based his conclusion that she was totally
disabled on multiple other medical conditions including psoriatic arthritis, Sjogren’s disease and
osteoarthritis. Therefore, OWCP properly terminated appellant’s compensation benefits.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
October 20, 2013 on the grounds that she refused suitable work under 5 U.S.C. § 8106(c)(2).

5

See Joan F. Burke, 54 ECAB 406 (2003).

6

20 C.F.R. § 10.517(a).

7

Id. at 10.516.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2013 is affirmed.
Issued: April 10, 2014
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

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

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

Docket No. 11-1725
Issued: March 5, 2012

Case Submitted on the Record

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

JURISDICTION
On July 19, 2011 appellant filed a timely appeal from a June 13, 2011 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as it was untimely and did not establish clear evidence of error. As the last merit
decision was issued on June 1, 2009, more than 180 days from the filing of the appeal, the Board
lacks jurisdiction to review the merits of this case.1 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 June 13, 2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely and insufficient to establish clear evidence of error.

1

20 C.F.R. §§ 501.2(c), 501.3.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 By decision dated August 14, 2008, the
Board reversed an October 12, 2006 decision terminating appellant’s compensation benefits
effective June 12, 2005 on the grounds that he refused an offer of suitable work.4 The Board
found that OWCP had not established that he refused suitable work as he returned to work on
June 11, 2005. The facts and the circumstances surrounding the prior decision of the Board are
hereby incorporated by reference.
By decision dated September 9, 2008, OWCP granted appellant schedule awards for a 50
percent permanent impairment of each lower extremity. The period of the awards ran from
November 30, 2005 to June 7, 2011 for a total of 288 weeks.
In a decision dated October 14, 2008, OWCP found that appellant had not established a
recurrence of disability beginning June 12, 2005 causally related to his November 4, 1996
employment injury. In a June 1, 2009 decision, a hearing representative affirmed the
October 14, 2008 decision. He found that the medical evidence was insufficient to establish that
appellant was disabled from his limited-duty employment as of June 12, 2005.
On December 28, 2009 appellant filed an appeal from the June 1, 2009 decision to the
Board; however, the Board dismissed the appeal as it was not made within 180 days of the date
of OWCP’s decision.5
By letter dated May 28, 2010, appellant informed OWCP that he wished to appeal the
prior decision. In a June 9, 2010 response, OWCP noted that he had previously filed an appeal
with the Board that was dismissed and advised him that his only appeal right was to request
reconsideration. On June 23, 2010 appellant requested that OWCP review his appeal and inform
him whether he could remain on compensation if he was still disabled. He also asked that
OWCP explain why he was removed from the periodic rolls.
In a letter received on June 6, 2011, appellant requested reconsideration. He argued that
OWCP stopped his compensation based on incorrect information by Dr. Menachem M. Meller, a
Board-certified orthopedic surgeon. Appellant contended that the claims examiner took him off
compensation after telling him that he would be entitled to it as long as he remained disabled.
He maintained that his attending physician, Dr. Bruce Vannett, a Board-certified orthopedic
surgeon, found that he could no longer work.

3

Docket No. 06-742 (issued August 14, 2008). In an August 28, 2005 order remanding case, the Board set aside
decisions denying appellant’s compensation under 5 U.S.C. § 8106(c), denying his schedule award claim and
finding that he did not establish a recurrence of disability. The Board found that the case record as assembled was
incomplete and that it was thus unable to render an informed adjudication.
4

OWCP accepted that on November 4, 1996 appellant, then a 61-year-old mailhandler, sustained bilateral knee
contusions and bilateral primary osteoarthritis of the lower leg in the performance of duty.
5

Order Dismissing Appeal, Docket No. 10-580 (issued April 5, 2010).

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By decision dated June 13, 2011, OWCP denied appellant’s request for reconsideration as
it was untimely and did not demonstrate clear evidence of error.
On appeal, appellant argues that OWCP erred in finding that his prior appeal to the Board
was made in January 2010 and was untimely. He maintains that OWCP erroneously stopped his
compensation and listed dates of actions taken by OWCP prior to the Board’s August 14, 2008
decision.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.6 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence on the part of OWCP in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.7
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.8 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise and explicit and must manifest on its face that OWCP committed an
error.9
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.10 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.11 On May 28, 2010 appellant
informed OWCP that he wanted to appeal its prior decision. OWCP advised him on June 9,
2010 to file a request for reconsideration, but he did not request reconsideration until
June 6, 2011. As appellant’s June 6, 2011 request for reconsideration was submitted more than
6

5 U.S.C. § 8101 et seq.

7

20 C.F.R. § 10.607.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (December 2003).

9

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
10
11

20 C.F.R. § 10.607(a).
Robert F. Stone, supra note 9.

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one year after the last merit decision of record, it was untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in denying his claim for compensation.12
Appellant maintained that OWCP relied upon incorrect evidence from Dr. Meller in
failing to pay him compensation.13 He further argued that Dr. Vannett, his attending physician,
found that he was totally disabled. The relevant issue, however, is whether the medical evidence
established that appellant sustained a recurrence of disability beginning June 12, 2005 causally
related to the November 4, 1996 employment injury. As this issue is medical in nature, it can
only be resolved through the submission of medical evidence.14 Appellant’s lay opinion
regarding the weight of the medical evidence is not relevant as the Board has held that lay
individuals are not competent to render a medical opinion.15 Consequently, his contentions are
insufficient to establish clear evidence of error by OWCP.
On appeal appellant alleges that OWCP erred in finding the date of his prior appeal to the
Board was January 2010. In the prior appeal, the Board dismissed his appeal of a June 1, 2009
decision after finding that his December 28, 2009 appeal was untimely as it was not made within
180 days. Any error by OWCP in listing the date of the prior appeal is harmless as it does not
alter the disposition of the case. Appellant further asserts that OWCP erroneously removed him
from compensation and cites actions taken prior to its October 12, 2006 decision terminating his
compensation for refusing suitable work. The issue currently on appeal, however, is whether he
has established clear evidence of error in OWCP’s finding that he did not establish a recurrence
of disability on June 12, 2005 due to his November 4, 1996 employment injury. As the evidence
submitted by appellant is insufficient to shift the weight of evidence in his favor and raise a
substantial question as to the correctness of OWCP’s last merit decision, he has not established
clear evidence of error.16
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely and insufficient to establish clear evidence of error.

12

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

13

On September 22, 2009 appellant underwent a left knee removal an antibiotic spacer insertion due to a left knee
infection. The issue before the Board is whether he has established clear evidence of error in OWCP’s finding that
he did not establish an employment-related recurrence of disability beginning June 12, 2005. The issue of whether
he has any disability due to his September 22, 2009 surgery is not before the Board.
14

George C. Vernon, 54 ECAB 319 (2003).

15

Gloria J. McPherson, 51 ECAB 441 (2000).

16

See Veletta C. Coleman, 48 ECAB 367 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the June 13, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION PLANT, Anaheim, CA,
Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1513
Issued: March 19, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 30, 2017 appellant, through counsel, filed a timely appeal from a January 18, 2017
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 to consider the merits of this case.3

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 services 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.

3
The Board notes that, following the January 18, 2017 decision, OWCP received additional evidence. However,
the Board’s jurisdiction is limited to the evidence that was of record at the time OWCP issued its final decision. Thus,
the Board is precluded from considering this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B.,
Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of disability
from June 5, 2012 to December 17, 2014 causally related to her accepted August 7, 2010
employment injury.
FACTUAL HISTORY
On August 9, 2010 appellant, then a 39-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on August 7, 2010 she injured the left side of her head “when the door
on the OTS machine hit her hard on her head.” OWCP initially accepted the claim for open scalp
wound with complications and concussion without loss of consciousness.4 Appellant stopped
work on August 8, 2010, and returned to her regular duties working four hours per day on
January 20, 2011. She was released to unrestricted work for eight hours per day on
January 31, 2012.
On July 21, 2012 appellant filed a claim for a recurrence of disability (Form CA-2a)
beginning June 5, 2012, indicating intermittent hours of wage loss. She noted that following the
injury she worked four hours per day with restrictions, which increased to six hours per day with
restrictions. Appellant returned to full duty, working eight hours per day, on February 11, 2012.
She reported increased neck pain following her return to work eight hours per day.
In a June 5, 2012 work restriction form, Dr. Ram Mudiyam, a treating Board-certified
orthopedic surgeon, related that appellant could work six hours per day with restrictions. In a
narrative report of even date, he noted appellant’s physical examination findings and related that
appellant’s magnetic resonance imaging (MRI) scan revealed moderate left disc osteophyte
encroachment at C6-7 neural foramen, with moderate foraminal stenosis, with less pronounced
findings at the C4-5 level.
By development letter dated July 24, 2012, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim for a recurrence of partial disability. It advised
her as to the definition of recurrence and the type of evidence required to establish such a claim.
Appellant was afforded 30 days to submit the necessary evidence. OWCP received additional
medical evidence.
In forms dated July 19, August 28, and September 25, 2012, Dr. Mudiyam reiterated that
appellant was capable of working six hours per day with restrictions, due to her cervical condition.
By decision dated September 20, 2012, OWCP denied appellant’s claim for a recurrence
of disability commencing June 2, 2012. It found that the evidence of record was insufficient to
establish disability due to a material change or worsening in her work-related conditions.
In a January 30, 2013 report, Dr. Hosea Brown, II, a treating Board-certified internist,
related that, following her injury, appellant worked part-time modified duty while gradually
increasing her hours until February 11, 2012 when she began working an eight-hour day. He
4

OWCP paid appellant wage-loss compensation and medical benefits on the supplemental rolls from September 22,
2010 until July 1, 2011. It paid her compensation on the periodic rolls from July 3 until October 22, 2011, and then
intermittent benefits again on the supplemental rolls commencing October 23, 2011.

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described both the duties of appellant’s original job and her modified job. Diagnoses included
cervical intervertebral disc syndrome with myelopathy, cervical degenerative disc disease,
postconcussion syndrome with headaches, and cervical radiculopathy.
On March 12, 2013 appellant requested reconsideration.
On April 3, 2013 OWCP received progress reports dated December 4 and 26, 2012 and
January 23, 2013 from Dr. Brown diagnosing cervical intervertebral disc syndrome with
myelopathy, cervical degenerative disc disease, postconcussion syndrome with headaches, and
cervical radiculopathy. Dr. Brown, in the December 4 and 26, 2012 and January 23, 2013 progress
notes, provided examination findings were provided in both reports and reported that appellant
continued to work six to eight hours per day with restrictions. Appellant was released to return to
modified work in both reports.
OWCP also received a January 18, 2013 report by Dr. Serge Obukhoff, an examining
Board-certified neurosurgeon, who noted that appellant had been referred by Dr. Brown for
evaluation of her neck injuries sustained at work on August 7, 2010. Dr. Obukhoff reviewed an
MRI scan which revealed significant problems include cord compression caused by C4-5 herniated
discs with ventral spinal cord effacement and bilateral foraminal stenosis, C6-7 bulging disc
herniation. According to Dr. Obukhoff the MRI scan findings explained appellant’s complaints
of myelopathy, neck stiffness, neck pain, and left-sided radiculopathy. Diagnoses included C4-5
and C6-7 cervical disc herniations and cervical myelopathy. With respect to her work status, he
noted that appellant was performing modified work as prescribed by her treating physician.
By decision dated April 17, 2013, OWCP denied modification of its prior decision. It also
noted that the date the claimed recurrence was June 5, 2012 and not June 2, 2012.
In progress notes dated April 17 and May 17, 2013, Dr. Brown’s findings and diagnoses
remained unchanged. He indicated that appellant was restricted to working six hours per day with
restrictions.
Dr. Obukhoff, in an April 29, 2013 follow-up report, noted that appellant had been
diagnosed with severe cervical stenosis as the result of C6-7 disc herniation and C5-6 spinal cord
effacing and an accepted condition of cervical strain. He provided examination findings and
requested appellant’s claim be expanded to include C4-5 and C6-7 cervical disc herniations and
cervical myelopathy. Dr. Obukhoff referenced the Form CA-17 from appellant’s treating
physician with respect to her work status.
In progress notes dated May 22, 2013, Dr. Brown diagnosed cervical intervertebral disc
syndrome with myelopathy, cervical degenerative disc disease, postconcussion syndrome with
headaches, and cervical radiculopathy. He noted appellant’s complaints and physical examination
findings. Dr. Brown indicated that appellant was capable of working six hours per day with
restrictions.
In a May 21, 2013 letter, Dr. Edward Mittleman, a treating physician specializing in family
medicine, explained that appellant’s condition was not a recurrence or new injury, but rather an
aggravation of her accepted August 7, 2010 injury. He requested that appellant’s claim be
expanded to include the condition of permanent aggravation of cervical disc protrusions.

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On July 3, 2013 appellant requested reconsideration. In progress notes dated June 24 and
July 15, 2013, Dr. Brown’s diagnoses and examination findings were unchanged. He indicated
that appellant was capable of performing modified work.
By decision dated August 1, 2013, OWCP denied appellant’s request for reconsideration
of the merits of her claim as appellant failed to submit new and relevant evidence or identify the
grounds for her reconsideration request.
Subsequent to the August 1, 2013 decision, OWCP received a June 28, 2013 report from
Dr. Obukhoff requesting authorization for surgery and noting work restrictions.
On August 22, 2013 OWCP received a November 21, 2012 report from Dr. Brown in
which he reported a May 17, 2012 MRI scan showed C4-5 and C6-7 cervical disc protrusion
causing severe spinal cord compression and that a September 21, 2011 nerve conduction study
showed evidence of acute left C7 radiculopathy.
On August 28, 2013 OWCP received a September 25, 2012 report from Dr. Mudiyam, who
noted that appellant was capable of working eight hours of modified work until he reduced her to
six hours on June 5, 2012. Dr. Mudiyam explained that the reduction of appellant’s work hours
was due to her complaints of increased left-sided neck pain and left arm weakness. A review of a
cervical spine MRI scan showed moderate-sized left disc osteophyte at the C6-7 neural foramen
with moderate foraminal stenosis. Dr. Mudiyam concluded that appellant’s disability was due to
her accepted employment injury. He recommended appellant continue with working six hours per
day as she was capable of managing her pain.
In an August 29, 2013 report, Dr. Mittleman noted that OWCP had accepted the claim for
neck sprain, open scalp wound, and concussion without complications. Medical reports were
reviewed. He opined that appellant was capable of working eight hours with restrictions. Due to
the inability of the employing establishment to provide her work for eight hours within her
restrictions, appellant was currently working two hours per day. Dr. Mittleman concluded that the
appropriate permanent diagnoses had not been properly adjudicated by OWCP and requested
OWCP expand her claim to include cervical spondylosis with myelopathy and C4-5 and C6-7
cervical disc herniation.
On September 26, 2013 OWCP received an August 26, 2013 report from Dr. Brown
requesting expansion of her claim to include postconcussion syndrome with headaches, cervical
radiculopathy, cervical intervertebral disc syndrome with myelopathy, and permanent aggravation
of cervical degenerative disc disease. Dr. Brown concluded that appellant was capable of working
an eight-hour day with the restrictions provided.
OWCP subsequently received Dr. Brown’s August 26, 2013 progress report on
September 30, 2013. Dr. Brown noted that appellant continued working two hours per day with
restrictions, which she was tolerating. He provided examination findings and diagnosed cervical
radiculopathy, cervical intervertebral disc syndrome with myelopathy, postconcussion syndrome
with headaches, permanent aggravation of cervical disc degeneration disease, neck sprain, open
scalp wound without complications, and concussion without loss of consciousness. Appellant was
released to return to modified work on August 26, 2013. Dr. Brown continued to submit progress
reports with similar findings.

4

On March 18, 2014 appellant requested reconsideration of the August 1, 2013 decision.
By decision dated June 11, 2014, OWCP expanded acceptance of the claim to include
cervical disc protrusion at C4-5 and C6-7, and neck sprain.
By separate decision dated June 11, 2014, OWCP denied modification of its August 1,
2013 decision. It found the medical evidence of record failed to contain a rationalized opinion
explaining how appellant’s increased disability was due to her accepted August 7, 2010 work
injury.
On December 29, 2014 OWCP appellant again requested reconsideration.
On February 5, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Michael J. Einbund, a Board-certified orthopedic surgeon, to determine the extent of disability
and nature of her condition.
In a February 13, 2015 report, Dr. Einbund, based upon a review of the medical evidence,
history of treatment, statement of accepted facts (SOAF), and physical, diagnosed history of
concussion and scalp laceration, C4-5 and C6-7 disc protrusions with radiculopathy, and neck
sprain. He noted the requirements of appellant’s position and that she worked eight hours of
modified work from January 2011 to February 2012, returned to her regular work in
February 2012, and from June 2012 to December 2014 she worked a modified job. In
December 2014, appellant stopped working as light-duty work was unavailable. Dr. Einbund
opined that appellant had reached maximum medical improvement (MMI) sometime in
September 2012. He also advised that he was unaware of any nonindustrial or preexisting
disability, except that there was some evidence of underlying degenerative disc disease. In an
attached work capacity evaluation form (OWCP-5c), Dr. Einbund noted that appellant had reached
MMI and was capable of working eight hours per day with restrictions. The restrictions included
up to 15 pounds of lifting, pushing, pulling for up to three hours per day, and a limitation on
reaching above the shoulder.
By decision dated March 25, 2015, OWCP denied modification of its prior decision. It
found that the medical evidence of record failed to establish how the recurrence of disability was
causally related to the accepted August 7, 2010 work injury.
In a report dated September 28, 2015, Dr. Brown opined that appellant’s accepted work
injury had worsened. In support of this conclusion, he noted a progression of neck pain radiating
into both upper extremities including numbness and tingling and decreased C4-5 and C6-7
sensation.
On October 19 2015 appellant, through counsel, requested reconsideration.
Subsequent to appellant’s reconsideration request, OWCP received progress notes dated
September 28 and November 24, 2015 and February 23, June 7, August 2 and 31, and
September 28, 2016 from Dr. Brown reiterating findings, work capability, and diagnoses from
prior reports.
In a March 22, 2016 report, Dr. Basimah Khulusi, an examining Board-certified orthopedic
surgeon, provided physical examination findings and injury history. He also noted medical
5

evidence reviewed including Dr. Einbund’s second opinion report. Dr. Khulusi referenced
Dr. Einbund’s work restrictions opinion, which he observed would amount to working four hours
per day. Next, he opined, based on the medical records, that appellant has been constantly
symptomatic since the injury and physical examination findings showed limited neck range of
motion and tenderness. Dr. Khulusi summarized findings from physicians and the need for
appellant to remain on restrictions. He concluded that appellant has been unable to perform her
usual job due to the neck injury sustained on August 7, 2010.
OWCP continued to receive progress reports from Dr. Brown including reports dated
June 7, August 2, 31, September 28, and November 30, 2016. Dr. Brown reiterated findings, work
capability, and diagnoses from prior reports.
By decision dated January 18, 2017, OWCP denied modification of its prior decision
denying her claim or a recurrence of partial disability. It found the evidence of record failed to
establish an objective or material worsening of the accepted conditions due to the accepted
August 7, 2010 work injury.
LEGAL PRECEDENT
OWCP’s implementing regulations define a “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.5
OWCP procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change in the medical condition demonstrated by objective findings. That
change must result from a previous injury or occupational illness rather than an intervening injury
or new exposure to factors causing the original illness. It does not include a condition that results
from a new injury, even if it involves the same part of the body previously injured.6
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the recurrence of disability is causally related to the original injury.
This burden includes the necessity of furnishing evidence from a qualified physician who, on the
basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports this conclusion with sound medical
reasoning.7

5

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
6

Federal (FECA) Procedure Manual, id. at Chapter 2.1500.3(c)(5) (June 2013); see also G.B., Docket No. 15-1319
(issued December 8, 2015)
7

A.W., Docket No. 17-0638 (issued August 29, 2017); Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50
ECAB 279 (1999).

6

ANALYSIS
OWCP initially accepted that appellant sustained a scalp wound with complications and a
concussion on August 7, 2010 when the door of an OTS machine hit her on the head. It
subsequently expanded acceptance of the claim on June 11, 2014 to include neck sprain and
cervical disc protrusion at C4-5 and C6-7. However OWCP continued to find that appellant had
not established disability after June 5, 2012 causally related to the accepted injury.
The Board finds that this case is not in posture for decision.
Appellant’s treating physicians Drs. Mudiyam, Brown, Obukhoff, Mittleman, and Khulusi,
in multiple reports, opined that appellant had sustained a recurrence of disability after
June 5, 2012. They provided examination findings, reviewed objective tests, and noted her injury
history. Drs. Mudiyam, Brown, Obukhoff, Mittleman, and Khulusi’s reports specifically related
appellant’s disability to her cervical conditions. However, OWCP did not accept a cervical
condition as causally related to the August 7, 2010 injury until June 11, 2014.
Thereafter OWCP referred appellant to Dr. Einbund to determine appellant’s disability
status.
Dr. Einbund, in a February 13, 2015 report, diagnosed concussion and scalp laceration, C45 and C6-7 disc protrusions with radiculopathy and neck sprain. Based on his examination he
concluded that appellant had reached MMI sometime in September 2012 and was capable of
working eight hours per day with restrictions per the February 13, 2015 OWCP-5c. However, the
Board notes that OWCP did not specifically request that Dr. Einbund make findings regarding
appellant’s disability status as of the date of the alleged recurrence, June 5, 2012, and OWCP did
not request that he provide an opinion as to whether the newly accepted cervical conditions caused
any period of recurrence of disability, causally related to the accepted injury.
It is well established that proceedings under FECA are not adversarial in nature and that
while the employee has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence in order to see that justice is done.8 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.9 After undertaking development by
scheduling a second opinion examination with Dr. Einbund on the issue of appellant’s disability
status, OWCP was responsible for obtaining a rationalized medical opinion on the issue of whether
appellant sustained a recurrence of disability on June 5, 2012 due to her August 7, 2010 accepted
employment injury. As Dr. Einbund was not asked and did not provide such opinion, the office
shall request a supplemental or additional medical opinion regarding appellant’s disability status
commencing June 5, 2012. After such further development as deemed necessary, OWCP shall
issue a de novo decision.

8

Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

9

See B.C., Docket No. 15-1853 (issued January 19, 2016).

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated January 18, 2017 is set aside and the case is remanded for further proceedings
consistent with this opinion.
Issued: March 19, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD INTEGRATED SUPPORT
COMMAND, Portsmouth, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-0180
Issued: October 28, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 18, 2020 appellant sought an appeal from a purported November 18, 2020
decision and an August 14, 2020 merit decision of the Office of Workers’ Compensation Programs
(OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-0180.
The Board, having duly considered the matter, notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1 This
jurisdiction encompasses any final decision issued by OWCP within 180 days of the date appellant
filed his appeal. 2
The Board notes that the case record does not contain a final adverse decision of OWCP
dated November 18, 2020. The most recent final adverse decision of OWCP is dated
August 14, 2020.

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
2

Regarding appellant’s appeal of OWCP’s August 14, 2020 decision, the Board notes that
it has already issued a decision regarding this appeal on September 21, 2021 in Docket No.
20-1520.3
The Board has duly considered the matter and concludes the appeal of OWCP’s August 14,
2020 decision was addressed in the Board’s September 21, 2021 decision in Docket No. 20-1520.
Additionally, the Board finds that there is no final adverse decision of OWCP dated
November 18, 2020. Therefore, the appeal docketed as Docket No. 21-0180 shall be dismissed.
Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0180 is dismissed.
Issued: October 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board notes that appellant previously filed an appeal of OWCP’s August 14, 2020 decision on
August 17, 2020. The Clerk of the Appellate Boards docketed the appeal as No. 20-1520.
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen Hunt, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1846
Issued: January 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2014 appellant, through her representative, filed a timely appeal from an
August 1, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that an overpayment of
$3,117.24 was created; (2) whether OWCP properly denied waiver of the overpayment; and
(3) whether OWCP properly found that the overpayment should be recovered by deducting
$300.00 from continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 20, 2010 appellant, then a 58-year-old customer service supervisor, filed an
occupational disease or illness claim (Form CA-2). In a narrative statement, she indicated that
she became a supervisor in 1986 and her job included keyboard entry, filing, and writing.
Appellant noted that she underwent left thumb surgery on March 5, 2010. OWCP accepted left
trigger finger, left tendon ganglion, and left carpal tunnel syndrome.
Appellant began receiving compensation on the periodic rolls as of May 8, 2011. The
compensation payments included deductions for basic life insurance (BLI) and optional life
insurance (OLI) premiums.
On June 17, 2013 OWCP received a June 7, 2013 letter from the Office of Personnel
Management (OPM) indicating that appellant’s election as a compensationer had been no
reduction in basic life insurance coverage. This election requires the payment of additional
premiums. OPM indicated that the commencing date for these additional life insurance
premiums was March 10, 2012.
In a letter dated November 20, 2013, OWCP advised appellant of a preliminary
determination that an overpayment of $3,117.24 had been created from March 11, 2012 to
October 19, 2013.
It indicated that during this period, the additional premiums for
postretirement life insurance benefits should have been deducted in the amount of $148.44 for
each 28-day compensation period. The overpayment amount was determined by multiplying
$148.44 by 21 compensation periods. OWCP found that appellant was not at fault in creating the
overpayment. Appellant was advised to complete an OWCP-20 form and submit relevant
financial evidence with respect to waiver.
Appellant requested a prerecoupment hearing with OWCP Branch of Hearings and
Review. On December 26, 2013 she submitted an OWCP-20 and financial information
regarding expenses. A hearing was held on June 23, 2014. The hearing representative requested
that appellant submit additional financial evidence, including a federal retirement (Thrift Savings
Plan, or TSP) statement.
On August 1, 2014 OWCP received additional evidence, including a TSP statement, a
pay stub from appellant’s spouse, and a statement as to earnings. By decision dated August 1,
2014, the hearing representative finalized the preliminary overpayment of $3,117.24. He stated
he had requested additional financial evidence, but none had been received. The hearing
representative denied waiver of the overpayment and found the overpayment could be recovered
by deducting $300.00 from continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees Group Life Insurance (FEGLI) Program, most civilian
employees of the Federal Government are eligible to enroll in BLI and other options. Premiums
are withheld from an employee’s pay.2 These premiums are still withheld while an employee is
2

C.B., Docket No. 12-87 (issued May 23, 2012).

2

receiving disability compensation.3 A claimant may elect life insurance benefits when separated
or retired from federal employment, or after the claimant is separated from the employing
establishment as a compensationer and coverage is effective immediately.4 The default
reduction is 75 percent (no cost), but a claimant can elect no reduction (or 50 percent reduction)
and OWCP deducts the appropriate premiums from compensation payments.5 When premiums
are not withheld, an overpayment arises because OWCP must pay the full amount to OPM upon
discovery of the error.6
ANALYSIS -- ISSUE 1
In the present case, the record does establish that an overpayment was created from
March 11, 2012 to October 19, 2013. OPM advised OWCP that appellant had selected basic life
insurance benefits, at no reduction, commencing March 10, 2012. OWCP therefore must deduct
the appropriate premiums for the coverage from that date.
The record indicates that there were 21 compensation payments issue covering the period
March 11, 2012 to October 19, 2013. None of the payments included a life insurance premium
deduction. As of October 20, 2013 OWCP began deducting $148.44 from continuing
compensation. The overpayment was calculated by multiplying $148.44 by 21, resulting in
$3,117.24 as an overpayment, with no contrary evidence of record. The Board finds OWCP
properly found an overpayment of $3,117.24 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA7 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”8 Since OWCP found appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary “needs substantially all of his or
3

5 U.S.C. § 8707(b)(1).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.15(c)(3)
(March 2014).
5

Id. The premiums are deducted automatically in the case management system when payments are issued.

6

See P.H., Docket No. 13-642 (issued August 12, 2013).

7

5 U.S.C. § 8101 et seq.

8

Id. at § 8129(b).

3

her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.9 For waiver under
the “defeat the purpose” of FECA standard, appellant must show that he needs substantially all
of his current income to meet current ordinary and necessary living expenses, and that his assets
do not exceed the resource base.10
Section 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; (b) the individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.
ANALYSIS -- ISSUES 2 & 3
Appellant’s argument on appeal is that OWCP did not consider all the evidence of record.
As noted in the history of the case, on August 1, 2014 OWCP received additional financial
information. The hearing representative did not consider the evidence in the August 1, 2014
decision, as he stated that he did not receive any evidence after the June 23, 2014 hearing.
In the case of William A. Couch,11 OWCP had not reviewed evidence that had been
received by OWCP four days prior to issuance of the final decision. The Board explained that it
was critical that OWCP review all evidence submitted prior to the issuance of a final decision,
noting that the Board can review only evidence that was before OWCP at the time of the
decision and Board decisions are final as to the subject matter appealed. The case was remanded
for proper consideration of the evidence.
The principle set forth in Couch was applied to evidence received on the date of the
OWCP decision in Linda Johnson.12 Evidence received on the date of the decision must
properly be reviewed by OWCP. When relevant evidence is received on the date of a hearing
representative’s decision and was not considered by the hearing representative, the case must be
remanded to OWCP.13
In the present case, there was relevant financial evidence received on the same date
OWCP issued its decision, August 1, 2014. For example, the hearing representative specifically
requested that appellant submit evidence with respect to TSP assets, and this was among the
evidence received. As the financial evidence relates to both the waiver and recovery of the
9

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).
10

See Robert E. Wenholz, 38 ECAB 311 (1986).

11

41 ECAB 548 (1990).

12

45 ECAB 439 (1994).

13

See E.Z., Docket No. 14-274 (issued November 10, 2014).

4

overpayment, the case will be remanded to OWCP in accord with Board precedent. After
consideration of the evidence of record and any additional development as deemed necessary,
OWCP should issue an appropriate decision.
CONCLUSION
The Board finds that an overpayment of $3,117.24 was created from March 11, 2012 to
October 19, 2013. The Board further finds that the case must be remanded on the issues of
waiver and recovery as appellant timely submitted relevant information that was not considered
by OWCP.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2014 is affirmed with respect to fact and amount of
overpayment, and set aside and remanded with respect to waiver and recovery of the
overpayment.
Issued: January 2, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, GREEN
)
RIVER LAKE, Campbellsville, KY,
)
Employer
)
___________________________________________ )
J.M., Appellant

Docket No. 07-135
Issued: June 21, 2007

Appearances:
Paul Felser, Esq., for the appellant
Office of Solicitor, for the Director

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 October 18, 2006 appellant filed a timely appeal of the July 21, 2006 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 August 17, 2005 and the filing of this appeal the Board lacks jurisdiction to review the
merits of appellant’s appeal pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
This is the third appeal to the Board. On the first appeal the Board affirmed decisions of
the Office which terminated appellant’s compensation benefits effective July 19, 1998.1 The
Board considered appellant’s argument that Dr. M.I. Malik, a Board-certified orthopedic surgeon
and impartial medical examiner, was not entitled to special weight as a referee physician due to
complaints filed against him with a state licensing board as well as judgments against him for
malpractice. The Board found that Dr. Malik was properly selected as an impartial medical
specialist and that his medical report was the weight of the medical evidence. In a February 2,
2004 decision, the Board affirmed Office decisions finding that appellant had no disability
causally related to her accepted employment injuries after July 19, 1998.2 The facts and the
history contained in the prior Board decisions are incorporated herein by reference.
The prior history includes a June 10, 1998 report from Dr. Zack R. Stearns, a Boardcertified orthopedic surgeon. He advised that appellant had essentially no change in her
symptoms and that he did not feel that there was “any doubt that her symptoms are a result of the
injury she sustained” at work and that given the long-standing nature of appellant’s condition and
lack of response to treatment, it was unrealistic to expect that her symptoms would resolve to the
point where she could perform any normal activities.
By letter dated January 31, 2005, appellant’s representative requested reconsideration.
Counsel contended that appellant continued to experience residuals and developed complications
as part of the “natural progression” of her January 25, 1989 employment-related injury. He
enclosed a December 14, 2004 report from Dr. Bobby J. Brooks, a Board-certified family
practitioner, who noted appellant’s history of injury and treatment. Dr. Brooks conducted an
examination and advised that “there was no reason to put [appellant] through diagnostic tests
since [she] had previously had numerous workups.” He noted that appellant related that her pain
had worsened through the years and opined that she had significant inflammation in that area of
the back that could be treated, but returned with any exertion. Dr. Brooks noted that appellant
was “unable to perform her previous position at the [employing establishment] or any daily work
position.” He opined that appellant was totally disabled and that her disability was related to her
“job-related injury.”
By decision dated August 17, 2005, the Office denied modification of the July 7, 1998
decision.
On May 1, 2006 the Office received appellant’s April 27, 2006 request for
reconsideration. In separate letters dated April 25, 2006, appellant repeated her allegations that
the denial of her claim should be overturned and Dr. Malik should not be given the weight of the
medical evidence. She submitted a statement also dated April 25, 2006, titled “Exhibit I.”
Appellant reiterated her previous concerns regarding Dr. Malik’s credentials which included that
his report should not have carried the weight of the evidence. She referenced materials from the
1

Docket No. 01-1763 (issued April 24, 2002).

2

Docket No. 03-2252 (issued February 2, 2004).

2

Kentucky Board of Medical Licensure, which included that Dr. Malik voluntarily agreed to
accept probation on April 14, 1999, a February 21, 2005 complaint regarding the license of
Dr. Malik and his July 18, 2005 voluntary agreement to surrender his license to practice in
Kentucky.
Appellant also submitted an April 25, 2006 statement entitled “Exhibit V” in which she
listed what she believed to be several errors in her case. She alleged that the impartial medical
examiner, Dr. Malik was under restrictions from the Kentucky Board of Medical Licensure at the
time he examined her on March 19, 1998. Appellant also alleged that the April 1989 magnetic
resonance imaging (MRI) scan was illegible and enclosed a copy of the Office’s April 25, 2001
letter requesting a copy. She alleged that there were errors in the statement of accepted facts
which included that she did not stop working shortly after her injury, but rather, appellant
attempted to return to work on several occasions. Appellant contended that she had scapular
complaints documented as early as January 26, 1989 and enclosed a copy of treatment notes
from an individual whose signature cannot be identified which appear to pertain to that time
frame and other earlier treatment notes which were previously of record. She also enclosed
copies of previously received treatment notes dated March 2, 1989 from another physician who
noted pain in the scapula and whose signature is illegible.
In a January 23, 2006 report, Dr. Stearns noted appellant’s history of injury and
treatment. He noted that appellant’s history, subjective findings and radiographic examinations
showed evidence that her condition was due to the injury that occurred on January 25, 1989.
Dr. Stearns opined that “all residual pain, discomfort and resulting disability” were “a direct
resu1t of the injury that appellant sustained in the course of her employment.” He also noted that
the June 30, 1999 MRI scan offered “evidence of continuing work-related findings consistent
with appellant’s original injury.” Dr. Stearns enclosed a copy of his treatment notes from his
November 30, 2005 examination. He noted that “there has been very little change in appellant’s
condition since she was last seen in 1998.” Dr. Stearns added that she was still disabled and
opined that it was unlikely that appellant could return to any occupation in the future.
In a January 31, 2006 report, Dr. Brooks noted that he saw appellant for an injury to the
thoracic and left scapular area of the back. He noted that appellant had a prior injury on
January 25, 1989 when she lifted a box that weighed approximately 33 pounds. Dr. Brooks
noted that appellant related that she reported the accident to management and saw her family
physician the following day. He noted that appellant was diagnosed with thoracic and left
scapular muscle strain. Dr. Brooks opined that appellant continued to have “no improvement
with her impairment.” He conducted a physical examination and opined that appellant’s
condition remained unchanged and she was still disabled. Dr. Brooks advised that appellant’s
condition could be treated, but that with any exertion, it returned and was difficult to control. He
advised that appellant was only capable of bending or stooping for short periods. Dr. Brooks
indicated that repetitive arm movements such as rotation movements, lifting, pushing or left hand
activities and raising arms above the shoulder levels resulted in extreme discomfort. He opined
that appellant was totally disabled as a result of her job injury of January 25, 1989.

3

In a statement dated January 4, 2006, Robert Davis, a private investigator, noted that he
accompanied appellant on February 10, 2005 to the office of Dr. Malik who refused to see or
examine appellant or discuss her case.
The Office also received a copy of a March 19, 1998 letter from appellant regarding her
examination with Dr. Malik.
By decision dated July 21, 2006, the Office denied appellant’s request for reconsideration
without further review of the merits. It found that her request neither raised substantial legal
questions nor included new and relevant evidence and, thus, was insufficient to warrant review
of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the Office
of Workers' Compensation Programs]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
Appellant requested reconsideration on April 27, 2006. The underlying issue on
reconsideration is medical in nature, whether she established that she had disability after July 19,
1998 is causally related to her accepted employment injuries. However, appellant did not submit
any relevant or pertinent new evidence on the issue of whether she had disability causally related
to her accepted employment injuries, nor did she show that the Office erroneously applied or

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

20 C.F.R. § 10.608(b).

4

interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office.
In her April 27, 2006 request for reconsideration, appellant reiterated her previous
arguments of record. She repeated her allegations that Dr. Malik should not have been accorded
the weight of the medical evidence. Appellant noted that he agreed to surrender his license to
practice medicine in Kentucky on July 17, 2005. However, this argument was previously made
and considered in the Board’s February 2, 2004 decision.6 Appellant also submitted several
letters dated April 25, 2006 and exhibits I and V. She contended that her prior denials should be
overturned, that Dr. Malik’s opinion should not be given special weight and that he was under
restrictions from the Kentucky Board of medical licensure. These contentions were previously
considered and are not a basis for reopening the claim. Appellant resubmitted copies of
materials regarding Dr. Malik’s license, his voluntary agreement to surrender his license dated
July 18, 2005 and copies of other documents. The Board also notes that her arguments and
evidence are cumulative and have been previously considered.7
Appellant also submitted a statement from Mr. Davis, a private investigator dated
January 4, 2006, who noted that he accompanied appellant to see Dr. Malik on
February 10, 2005. However, this is not relevant termination of her benefit on July 19, 1998, as
Dr. Malik was the physician selected to conduct an impartial medical examination seven years
prior. As noted, the underlying issue is medical in nature and a statement from a private
investigator is not relevant to the medical issues in this case. The submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case.8
Appellant also submitted several reports from physicians which included reports dated
January 31, 2006 from Dr. Brooks and a January 23, 2006 report from Dr. Stearns. While they
opined that appellant’s disability was related to her work-related injury and that she continued to
have strains and remained totally disabled, they are similar reports previously of record and are
cumulative in nature. Material which is cumulative or duplicative of that already in the record
has no evidentiary value in establishing the claim and does not constitute a basis for reopening a
case for further merit review.9
Consequently, the evidence and argument submitted by appellant on reconsideration does
not constitute new and relevant evidence, nor does it show that the Office erroneously applied or
interpreted a specific point of law or advance a relevant new argument not previously submitted.
Therefore, the Office properly denied her request for reconsideration.
6

See Eugene F. Butler, 36 ECAB 393, 398 (1984) (where the Board held that material which is repetitious or
duplicative of that already in the case record is of no evidentiary value in establishing a claim and does not constitute a
basis for reopening a case).
7

See id; see also David J. McDonald, 50 ECAB 185 (1998); John Polito, 50 ECAB 347 (1999); Khambandith
Vorapanya, 50 ECAB 490 (1999).
8

Robert P. Mitchell, 52 ECAB116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).
9

See supra, note 6.

5

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2006 is affirmed.
Issued: June 21, 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
__________________________________________
P.M., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1253
Issued: January 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 15, 2019 appellant, through counsel, filed a timely appeal from a December 10,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from the last merit decision dated August 22, 2017, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 23, 2017 appellant, then a 61-year-old steward utility worker, filed an
occupational disease claim (Form CA-2) alleging that on May 22, 2014 she first realized that her
lower abdomen, groin, and left hip conditions had been caused or aggravated by her repetitive
manual labor activities including heavy lifting and pushing/pulling while in the performance of
duty. Appellant’s supervisor indicated that appellant had been on disability retirement since
June 17, 2015. In an accompanying statement, appellant detailed her work activities which
included basic food handling, sanitation, preparation, housekeeping, janitorial, cleaning, and
service functions. She indicated that these activities required constant heavy lifting,
pushing/pulling, and carrying. Appellant alleged that over the past 10 years she kept reinjuring
her left hip, abdomen, and groin, which caused a neurogenic bladder, osteitis pubis, left
trochanteric bursitis, and pudendal nerve entrapment, from performing these repetitive duties.
In a development letter dated June 2, 2017, OWCP advised appellant that additional factual
and medical evidence was necessary to establish her claim. It provided a questionnaire for her
completion regarding the factual elements of her claim. OWCP also requested that appellant
provide a narrative medical report from her physician, which contained a detailed description of
findings and diagnoses, explaining how her work activities caused, contributed to, or aggravated
her medical conditions. It afforded her 30 days to submit the necessary evidence.
In a statement dated June 18 2017, appellant responded to OWCP’s development
questionnaire and provided additional information regarding her employment duties.
In a March 20, 2017 report, Dr. Leila Rhodes, a physician specializing in internal medicine,
summarized appellant’s employment duties, noting that she had worked for the employing
establishment for 10 years and had medically retired on September 1, 2015. She provided
examination findings, reviewed objective testing, and diagnosed osteitis pubis, urge incontinence,
pudendal nerve entrapment, urinary frequency, left trochanteric bursitis, and neurogenic bladder.
Dr. Rhodes attributed the diagnosed conditions to appellant’s employment duties. She explained
that appellant originally sustained work injuries on June 22, 2012 and that these work injuries had
been aggravated by her repetitive employment duties, which included heavy lifting,
pushing/pulling, and carrying.
In a report dated June 15, 2017, OWCP’s second opinion physician, Dr. Michael J.
Einbund, a Board-certified orthopedic surgeon, related that appellant had an accepted claim under
OWCP File No. xxxxxx654 for a May 3, 2013 injury which was accepted for left hip and thigh
sprain. Dr. Einbund provided a summary of appellant’s medical history and opined that
appellant’s accepted conditions in File No. xxxxxx654 had resolved. He also noted that while
appellant had been diagnosed by a treating physician with osteitis pubis, trochanteric bursitis, and

2

adductor tendinitis, these conditions were not related to her May 2013 traumatic injury, but were
underlying in nature and had developed over time.3
By decision dated August 22, 2017, OWCP denied the claim because the medical evidence
submitted was insufficient to establish causal relationship between the accepted employment
factors and her diagnosed conditions.
On August 21, 2018 counsel requested reconsideration.
In a July 9, 2018 report, Dr. Rhodes reported that appellant had increased pain and
decreased left hip range of motion. She diagnosed osteitis pubis based on objective MRI scan
findings, which she attributed to appellant’s employment duties. Dr. Rhodes discussed the
relationship between the diagnosed osteitis pubis, left hip trochanteric bursitis, pain, neurogenic
bladder, and pundendal nerve entrapment and appellant’s strenuous job activities. Regarding the
diagnosis of osteitis pubis, she explained that this condition was due to tissue damage and
inflammation of the public symphysis, which was cartilage at the point where several muscles
from the abdomen and groin attached and contracted during physical activity. She explained that
the condition was caused by repetitive contraction of the muscles that attached to the pubic bone
and pub symphysis, and excessive force on the public symphysis which caused an inflammatory
response. Dr. Rhodes further, opined that appellant’s job duties required her to constantly lift
heavy weights, carry and push/pull which caused multiple aggravating motions, and caused the
muscles that attached to the pubic bone and pubic symphysis to repetitively contract. This resulted
in repetitive micro trauma to appellant’s hip and groin areas that over time caused the diagnosed
condition. Regarding the diagnosed condition of trochanteric bursitis of the left hip, Dr. Rhodes
explained that appellant’s performance of constant heavy lifting and walking duties caused
repetitive soft tissue damage within the hip and pelvic areas that led to continued inflammation of
the bursa, and then caused bursitis to develop. Regarding appellant’s diagnosis of pudendal nerve
entrapment, Dr. Rhodes explained that this condition resulted from continued inflammation of the
osteitis pubis, caused by continued performance of appellant’s employment duties, which resulted
in repetitive microtrauma to the osteitis pubis and subsequent inflammation. Regarding appellant’s
diagnosed condition of neurogenic bladder, Dr. Rhodes explained that this condition occurred
when the nerves that governed the urinary tract were damaged and were not able to tighten or
relax. This nerve damage was caused by appellant’s osteitis pubis and subsequent development
of pudendal nerve entrapment. Thus, Dr. Rhodes concluded that appellant’s injury began on
June 22, 2012, that the condition had not fully resolved when she returned to work on January 7,
2013, and that her condition had been aggravated by her employment duties.
By decision dated December 10, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim.

3

The Board notes that OWCP File No. xxxxxx654 has not been combined with the current claim.

3

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A right to reconsideration within one year also accompanies any subsequent merit decision on the
issues.7
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.8 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Counsel requested reconsideration, summarized the medical evidence of record, and
concluded that causal relationship had been established. The underlying issue on appeal was
whether appellant’s diagnosed conditions were caused or aggravated by factors of her
employment. This is a medical issue which must be determined by rationalized medical
evidence.10 Appellant’s request for reconsideration did not show that OWCP erroneously applied
or interpreted a specific point of law, or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based on the
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4(b).
7

C.H., Docket No. 19-0669 (issued October 9, 2019); F.N., Docket No. 18-1543 (issued March 6, 2019); Robert F.
Stone, 57 ECAB 292 (2005).
8

20 C.F.R. § 10.606(b)(3); see C.H., id.; T.M., Docket No. 19-0535 (issued July 25, 2019); J.B., Docket No. 181531 (issued April 11, 2019).
9

Id. at 10.608.

10
See J.B., Docket No. 18-1531 (issued April 11, 2019); E.D., Docket No. 18-0138 (issued May 14, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). Appellant did,
however, submit relevant and pertinent new evidence not previously considered.11
In support of her request for reconsideration, appellant submitted a new medical report
from Dr. Rhodes. In her report dated July 9, 2018, although similar to her previous March 20,
2017 report, Dr. Rhodes provided additional rationale explaining the mechanism by which the
diagnosed conditions had been caused or aggravated by appellant’s employment duties.
Dr. Rhodes’ new report directly addressed the basis upon which OWCP denied appellant’s claim
as it provided additional explanation as to the cause of the diagnosed conditions and discussed the
relationship to appellant’s federal employment.12
The Board thus finds that OWCP improperly refused to reopen appellant’s case for further
review of the merits, as the evidence she submitted, in support of her reconsideration request, is
relevant and pertinent new evidence not previously considered.13 Reopening a claim for merit
review does not require a claimant to submit all evidence that may be necessary to discharge his
or her burden of proof.14
As appellant has submitted relevant and pertinent new evidence not previously considered
by OWCP, she is entitled to a review of the merits of her claim under section 10.606(b)(3) of
OWCP’s regulations.15 The case will be remanded to OWCP to conduct a merit review of the
claim. Following this and such other development as deemed necessary, it shall issue an
appropriate merit decision on the claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

R.T., Docket No. 18-1263 (issued February 7, 2019); K.S., Docket No. 18-1022 (issued October 24, 2018).

12

Id.; M.C., Docket No. 17-1983 (issued August 17, 2018).

13

Supra note 8.

14

Supra note 11.

15

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated December 10, 2018 is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 23, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
D.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
Washington, DC, Employer
__________________________________________

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

Docket No. 13-1713
Issued: November 20, 2013

Case Submitted on the Record

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

JURISDICTION
On July 9, 2013 appellant filed a timely appeal of a January 10, 2013 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Because over 180 days elapsed
between the most recent merit decision of December 14, 2011 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of appellant’s case, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 28, 2010 appellant, then a 47-year-old customs officer, filed an occupational
disease claim alleging that on June 23, 2007 he developed an autoimmune response initiated by
1

5 U.S.C. § 8101 et seq.

food illness and subsequent bowel infection which occurred while he was on temporary duty in
Chonburi, Thailand. In a letter dated July 7, 2010, OWCP requested additional factual and
medical evidence in support of his claim. By decision dated September 21, 2010, it denied
appellant’s claim on the grounds that he failed to provide any supportive factual or medical
evidence regarding his alleged occupational disease.
Appellant requested reconsideration on September 20, 2011 and alleged that he was on
official government travel from June 19 through 26, 2007. He stated on June 23, 2007 he
became ill with a food illness while in Pattaya, Thailand. Appellant developed symptoms of
Reiter’s syndrome on July 11, 2011.
In support of his claim, appellant submitted medical evidence. On July 22, 2007
Dr. Janice Blanchard, a physician Board-certified in emergency medicine, examined appellant
and diagnosed Reiters’ syndrome and urethritis. Dr. Victoria K. Shanmugam, a Board-certified
rheumatologist of professorial rank, in a report of July 23, 2007, diagnosed polyarticular
inflammatory arthritis most likely secondary to either his chlamydia infection or the recent
diarrheal illness. In a report dated August 17, 2007, Dr. Shanmugam found persisting
inflammatory arthritis of the left ankle and pain in the bilateral knees. She found persisting
synovitis following an episode of reactive arthritis.
In a decision dated December 14, 2011, OWCP found that appellant had submitted
sufficient medical evidence to establish diagnosed conditions including reactive arthritis
secondary to chlamydia, persistent synovitis, Reiter’s syndrome and urethritis. However, it
denied appellant’s claim on the grounds that there was no medical opinion evidence which
established the causal relationship between appellant’s diagnosed conditions and his
employment.
Appellant requested reconsideration of the December 14, 2012 decision on
December 24, 2012. He submitted an article from a medical publication regarding Reiter’s
syndrome as well as an article from Wikipedia discussing reactive arthritis. Appellant also
submitted a copy of his calendar indicating his travel in June 2007.
By decision dated January 10, 2013, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found that appellant had not submitted relevant new evidence
requiring review of the merits of his claim.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or

2

5 U.S.C. §§ 8101-8193, 8128(a).

2

includes relevant and pertinent new evidence not previously considered by OWCP.3 Section
10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.4
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have validity.5
ANALYSIS
Appellant filed a claim for occupational disease on June 28, 2010. By decision dated
December 14, 2011, OWCP denied the merits of his claim. Appellant requested reconsideration
on December 14, 2012.
As noted above, the Board does not have jurisdiction over the December 14, 2011 OWCP
merit decision denying his occupational disease claim. The issue presented on appeal is whether
appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3) requiring OWCP to reopen the
case of review of the merits of his claim. In support of his December 14, 2012 request for
reconsideration, appellant did not identify or show that OWCP erroneously applied or interpreted
a specific point of law. Additionally, he did not advance a new and relevant legal argument.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not meet this requirement of 20 C.F.R. § 10.606(b)(3) as he
submitted no new medical evidence. Appellant submitted excerpts of medical publications. The
Board has held that excerpts of publications medical or otherwise are of no evidentiary value in
establishing a claim as they are of general application and are not determinative as to whether
specific conditions or disability were the result of the employment. This material has probative
value only to the extent that it is interpreted and cited by a physician rendering an opinion on the
causal relationship between a condition and specified employment injury.6 As appellant did not
submit a physician’s opinion interpreting the medical publications, he failed to submit pertinent
new and relevant medical evidence.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
3

20 C.F.R. § 10.606.

4

Id. at § 10.608.

5

M.E. 58 ECAB 694 (2007).

6

Harlan L. Soeten, 38 ECAB 566, 567 (1987).

3

relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that as appellant has not met any of the criteria to warrant a merit
review, OWCP properly declined to reopen his claim for consideration of the merits on
January 10, 2013.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4