United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charleston, WV, Employer
__________________________________________

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Appearances:
Stephen Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1414
Issued: December 12, 2014

Case Submitted on the Record

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

JURISDICTION
On June 11, 2014 appellant, through counsel, filed a timely appeal from the April 15,
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.
ISSUE
The issue on appeal is whether OWCP properly terminated appellant’s compensation and
medical benefits effective June 17, 2013.
FACTUAL HISTORY
On December 29, 2011 appellant, then a 61-year-old distribution clerk, filed a traumatic
injury claim alleging that she fell on an icy employing establishment parking lot on her way into

1

5 U.S.C. § 8101 et seq.

work and sustained an injury to her left knee and elbow.2 She stopped work on that date. On
January 19, 2012 OWCP accepted appellant’s claim for contusion of the left knee and elbow.
In a February 9, 2012 report, Dr. Jamal Bazzi, an orthopedic surgeon, noted that appellant
reported trauma to the left hip and left knee on December 29, 2011 while working for the
employing establishment. He related that she slipped and fell in the employing establishment
parking lot and had not worked since the accident. Dr. Bazzi noted complaints of pain over the
lateral and anterior aspects of the left hip and the lateral aspect and anterior aspect of the knee.
He advised that appellant’s hip and knee pain were exacerbated with walking, standing, and
bending the knee. Dr. Bazzi examined appellant and diagnosed left hip osteoarthritis, left hip
trochanteric bursitis, and left knee mild osteoarthritis. February 9, 2012 bilateral knee x-rays
revealed no acute fracture or dislocation and some osteoarthritic changes.
On February 27, 2012 appellant filed a CA-7 claim for wage loss for the period
February 12 to 24, 2012. She was paid compensation benefits.3
In a report dated June 4, 2012, Dr. John H. Phillips, an orthopedic surgeon, noted
appellant’s history of injury and treatment and noted a low energy fall several months prior.
Appellant had persistent pain in her knees and hip, which was not resolving despite appropriate
nonoperative measures. Dr. Phillips recommended a magnetic resonance imaging (MRI) scan of
the left knee.
An October 17, 2012 MRI scan of the left hip, read by Dr. Eric J. Fish, an osteopath and
diagnostic radiologist, revealed bilateral degenerative changes without an indication of acute
fracture, subluxation, or significant joint effusion. There was no abnormal signal change within
the overlying soft tissues to suggest a fluid collection or edema.
In an October 22, 2012 report, Dr. Phillips noted that appellant was seen for left hip and
trochanteric pain in the past. He indicated that she returned for follow up and the MRI scan of
her right and left hips was obtained and a trochanteric injection was administered. Dr. Phillips
noted that it was possible that appellant was increasingly symptomatic from hip arthritis, but he
wanted to ensure that there was not another injury that they were masking. In a November 19,
2012 report, he advised that she had hip pain, which was related to the original injury of
December 29, 2011.
OWCP referred appellant and a statement of accepted facts to Dr. Kirpal Sidhu, a Boardcertified orthopedic surgeon, for a second opinion as to whether she could return to work. In a
November 13, 2012 report, Dr. Sidhu noted appellant’s history of injury and treatment.
Appellant reported pain in her left thigh, knee, and hip since her December 29, 2011 work injury.
On examination, Dr. Sidhu provided findings which included a slightly pigmented scar of old
abrasions over the left knee. He indicated that there was no gross swelling, redness, or increased
warmth of the knees. The left elbow had no swelling or tenderness and full range of motions.
Dr. Sidhu diagnosed left thigh pain, possible lumbar radiculopathy, and bilateral moderately
2

The regular work hours of appellant were from 6:00 a.m. to 5:00 p.m. The fall occurred at 5:55 a.m.

3

Additional CA-7 claims for compensation were submitted through June 14, 2013.

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severe osteoarthritis of both hips. He opined that appellant’s left elbow and left knee contusions
had resolved. Dr. Sidhu also found significant spondylosis in the lower lumbar region, L4-5, on
x-rays. He stated that appellant’s left thigh pain seemed in the L2 or L3 distribution, which
could be from the upper lumbar region. Dr. Sidhu advised that the left thigh pain could also be
due to severe left hip osteoarthritis and partly due to lumbar spondylosis. He stated that,
although the osteoarthritis and lumbar spondylosis were preexisting conditions, the lumbar
spondylosis with radicular pain was likely aggravated by the work injury. Dr. Sidhu stated that
the aggravation would typically resolve within 6 to 12 weeks unless there was a disc herniation.
He recommend a lumber MRI scan to determine if the symptoms were related to the work injury
or just part of appellant’s degenerative disc disease.
In a December 21, 2012 report, Dr. Sean M. Ladson, a Board-certified diagnostic
radiologist, to whom appellant was referred by Dr. Sidhu, noted lumbar spine MRI scan findings.
He listed an impression of severe spinal canal stenosis at L5-S1 and, to a lesser extent, L4-5 due
to disc osteophyte complexes with disc protrusions. Appellant had severe bilateral neural
foramina narrowing at L5-S1, worse on the left, as well as degenerative changes and various
levels of neuroforaminal compromise.
In an undated addendum, received by OWCP on January 16, 2013, Dr. Sidhu reviewed
Dr. Ladson’s findings, noting that the MRI scan revealed degenerative changes at multiple
levels. Based on this, he opined that appellant’s current condition was “a natural consequence
and progression of degenerative disc disease. With a widespread disease the work relation is
hard to prove. Appellant’s symptoms are consistent with osteoarthritis of hip joint and also
partly the result of L3-4 left foraminal stenosis.” Dr. Sidhu noted that other disc protrusions at
multiple levels were asymptomatic. He concluded that appellant’s degenerative disc disease was
preexisting. In an accompanying January 13, 2012 work capacity evaluation, Dr. Sidhu
reiterated that her left knee and elbow contusions had resolved while her osteoarthritis of both
hips and lumbar spondylosis were not work related. He indicated that appellant could work
within restrictions, but these restrictions were related only to the preexisting conditions.
In a February 8, 2013 report, Dr. Phillips noted that he had reviewed the second opinion
report of Dr. Sidhu. He stated that he did not disagree with the diagnoses, specifically that the
contusion of the left elbow and left knee were resolved. Dr. Phillips also agreed with the
remainder of the report.
On April 12, 2013 OWCP proposed to terminate appellant’s compensation, based on the
opinion of Dr. Sidhu, which established that the residuals of the work injury had ceased.
Appellant was given 30 days to submit additional evidence or argument.
In an April 15, 2013 telephone memorandum, OWCP noted that appellant inquired in
response to the notice and was advised that her treating physician agreed with the proposal.
OWCP received an April 8, 2013 report from Dr. Larry Hartman, a Board-certified
neurosurgeon, who noted appellant’s history and findings. Review of a lumbar MRI scan
revealed very generalized degenerative disease of the entire lumbar spine. Dr. Hartman stated
that “every part” of appellant’s examination and imaging studies suggested “a different potential
etiology.” He stated that he “did not have a clear picture of what we are dealing with, now some

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16 months after the initial injury.” Dr. Hartman noted possible causes of appellant’s symptoms
and requested x-rays of the hips and pelvis. An April 9, 2013 report from Dr. Thomas R.
Roatsey, an osteopath, noted a date of injury of December 29, 2011, her status and work
restrictions. The report diagnosed left hip pain, low back pain with radiculopathy, and left knee
pain.
In an April 10, 2013 report, Dr. Phillips noted that appellant had hip osteoarthritis as
evidenced by x-ray and trochanteric bursitis evidenced by clinical examination. He advised that
she was primarily symptomatic from anterior thigh pain that extended to her groin region.
Dr. Phillips explained that this was somewhat of an atypical presentation for osteoarthritis given
that appellant had multiple potential pain generators between her lumbar spine, trochanteric
bursa, and degenerative hip joint. He recommended an intra-articular steroid injection and
opined that it was an important step to carry out before considering total hip arthroplasty or other
similar surgery. Dr. Phillips explained that, if her hip was not a significant pain generator, total
hip arthroplasty would not relieve her pain.
In a letter dated May 9, 2013, appellant’s counsel argued that the medical evidence
supported that appellant’s preexisting condition was aggravated by the fall on
December 29, 2011. In a May 22, 2013 report, Dr. Phillips repeated his request for an injection.
In a June 17, 2013 decision, OWCP terminated appellant’s compensation benefits
effective June 17, 2013. It found that the weight of medical evidence rested with Dr. Sidhu and
supported that she no longer had residuals of the accepted work-related conditions.
On July 17, 2013 appellant’s counsel requested a hearing, which was scheduled for
January 28, 2014. However, the request was changed to a request for an examination of the
written record on January 27, 2014. He contacted OWCP via telephone and noted that he
believed a referee evaluation was warranted.
In a letter dated February 25, 2014, appellant’s counsel argued that appellant’s
termination should be reversed because OWCP failed to consider his May 9, 2013 letter. He
indicated that it showed how her preexisting condition was aggravated by the fall of
December 29, 2011. Counsel also argued that OWCP failed to consider Dr. Hartman’s April 8,
2013 report, which discussed appellant’s condition as secondary to a herniated disc caused by the
fall. He argued that the decision should be reversed, as an unresolved conflict remained, and
OWCP had not met its burden to terminate.
In a February 7, 2013 treatment record, Dr. Roatsey noted follow-up treatment for left hip
pain and stated that, on his review of MRI scan results, it was his opinion that appellant’s fall at
work exacerbated her condition because she did not have “hip/leg/back pain before the fall.”
The May 15, 2013 treatment records diagnosed left hip and knee pain and reiterated
Dr. Roatsey’s opinion that “all these are work related because [appellant] was having no
problems before her accident at work.” He advised that, while appellant may have had
preexisting problems, these were “fine” until her injury and, but for the injury, she would still be
working and “not have any problems with them.”

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By decision dated April 15, 2014, an OWCP hearing representative affirmed the June 17,
2013 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employing
establishment.5
ANALYSIS
In this case, OWCP accepted that appellant sustained a contusion of the left knee and
elbow when she fell in the employing establishment parking lot on the way into work. There
was no dispute that this was in the performance of duty. Appellant submitted claims for wageloss compensation. On October 26, 2012 OWCP referred her for a second opinion examination
with Dr. Sidhu, a Board-certified orthopedic surgeon, to determine whether there were any
residuals of her accepted conditions and whether she could return to work.
In a November 13, 2012 report, Dr. Sidhu examined appellant and provided findings,
which included that the left knee had a slightly pigmented scar of old abrasions over the left
knee. There was no swelling or increased warmth of the knee. The left elbow had no swelling
or tenderness and had full range of motion. Dr. Sidhu concluded that the accepted left knee and
elbow contusions had resolved. He found that appellant had moderately severe osteoarthritis in
both hips and significant spondylosis at L4-5 based on x-rays. Dr. Sidhu explained that these
conditions preexisted the employing establishment injury. He noted possible causes of
appellant’s left thigh pain, including her hip osteoarthritis, and lumbar spondylosis. Dr. Sidhu
opined that the preexisting degenerative spine condition was likely exacerbated by the 2011
work injury, but would have typically resolved within 6 to 12 weeks of the December 29, 2011
incident unless there was a disc herniation. Although he advised that his clinical examination did
not indicate a herniation, he recommended a lumbar MRI scan to determine if the symptoms
were due to the work injury or just part of appellant’s degenerative disc disease. An MRI scan
was performed on December 21, 2012. After reviewing the MRI scan findings, Dr. Sidhu, in an
addendum to his report, stated that there were degenerative changes at multiple levels. He
advised that appellant’s current condition was “a natural consequence and progression of
degenerative disc disease.” Dr. Sidhu explained that “if it was a single level disc protrusion
without osteophytes, then work relation could be considered. With a widespread disease, the
work relation is hard to prove. Appellant’s symptoms are consistent with osteoarthritis of hip
joint and also partly the result of L3-4 left foraminal stenosis.” Dr. Sidhu concluded that her
degenerative disc disease was preexisting and, in an accompanying January 13, 2012 work
capacity evaluation, reiterated that her left knee and elbow contusions had resolved while her
current osteoarthritis of both hips and lumbar spondylosis were disabling and required work
4

Curtis Hall, 45 ECAB 316 (1994).

5

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

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restrictions. He found no basis on which to attribute any ongoing condition to appellant’s
December 29, 2011 work injury.
The Board finds that Dr. Sidhu’s opinion is well rationalized and represents the weight of
the medical evidence regarding appellant’s accepted conditions. Dr. Sidhu explained why he
determined that her current condition was not aggravated by her work injury after obtaining a
lumbar MRI scan. The Board also notes that there are no current reports from a treating
physician to contradict these findings. In fact, the treating physician, Dr. Phillips, on February 8,
2013, concurred with Dr. Sidhu’s findings. While Dr. Phillips submitted subsequent reports, he
did not clearly support an ongoing work-related condition due to the accepted work injuries.
Records from Dr. Roatsey do not sufficiently support continuation of benefits based on
the accepted contusions of the left elbow and knee. Dr. Roatsey’s February 7, 2013 treatment
record opines that appellant’s fall at work exacerbated her condition because she did not have
“hip/leg/back pain before the fall.” His May 15, 2013 treatment record diagnoses left hip and
knee pain and reiterates his opinion that “all these are work related because [appellant] was
having no problems before her accident at work.” Dr. Roatsey advised that, while appellant may
have had preexisting problems, these were “fine” until her injury and, but for the injury, she
would still be working and “not have any problems with them.” The Board has held that the
mere fact that a condition manifests itself during a period of employment does not raise an
inference that there is a causal relationship between the two.6 These reports provide insufficient
reasoning to create a conflict with, or overcome, the opinion of Dr. Sidhu.
Appellant also provided an April 8, 2013 report from Dr. Hartman, who reviewed her
history and found that the etiology of her condition was not clear. Dr. Hartman did not provide
an opinion on causal relationship, but instead, recommended further testing.
Because appellant no longer has residuals or disability related to her accepted
employment conditions, OWCP properly terminated entitlement to wage-loss compensation and
medical benefits effective June 17, 2013.
Accordingly, its decision to terminate her
compensation and medical benefits shall be affirmed.
On appeal, appellant’s counsel argued that the decision ignored the report of
Dr. Hartman. However, the Board notes that the report of Dr. Hartman does not support
continuing work-related conditions. It clearly stated that he “did not have a clear picture of what
we are dealing with, now some 16 months after the initial injury.” Counsel also argued that
Dr. Hartman provided a May 15, 2013 treatment note, in which he opined that the symptoms
were work related. The Board notes that, while the record contains a May 15, 2013 treatment
note from Dr. Roatsey, noted above, there is no such treatment record from Dr. Hartman. As
explained, the evidence supports that appellant no longer has residuals or disability related to her
accepted employment conditions. She may submit new evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

6

Roy L. Humphrey, 57 ECAB 238 (2005).

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CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s benefits
effective June 17, 2013.
ORDER
IT IS HEREBY ORDERED THAT the April 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2014
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
MUNITIONS COMMAND, CONUS EAST
DIVISION, DETACHMENT EARLE,
Colts Neck, NJ, Employer
__________________________________________

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

Docket No. 09-262
Issued: August 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 4, 2008 appellant filed a timely appeal from a May 5, 2008 merit decision
of the Office of Workers’ Compensation Programs denying his claim for fact of injury and an
October 21, 2008 decision of an Office hearing representative finding that he abandoned his oral
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUES
The issues are: (1) whether appellant established that he sustained an injury on
January 30, 2008 in the performance of duty, as alleged; and (2) whether the Office properly
determined that appellant abandoned his request for an oral hearing before an Office hearing
representative. On appeal, appellant contends that he notified the Office that he would not be
able to attend the scheduled oral hearing and enclosed a copy of the alleged notification.

FACTUAL HISTORY
On March 26, 2008 appellant, then a 51-year-old traffic management specialist, filed a
traumatic injury claim alleging that on January 30, 2008 he experienced pain and stiffness in his
upper back and both shoulders. In an April 7, 2008 statement, he stated that, at the time of the
injury, he was inspecting semitrailer loads in a holding yard. He was on the ground with the rear
door open when heavy winds blew the door closed and pinned him between the open door and
the trailer.
On March 28, 2008 the Office notified appellant of the deficiencies in his claim and
requested that he provide additional information.
In forms dated January 30 through February 26, 2008, appellant’s supervisors reported
that high winds caused a rear door to hit appellant in the back and threw him into a trailer.
Several employing establishment medical officers indicated that appellant was qualified for light
duty and provided work restrictions. In a March 10, 2008 form, a medical officer indicated that
appellant could return to full duty as of March 10, 2008 and stated that appellant would see his
doctor for possible physical therapy.
Appellant also submitted an April 7, 2008 prescription note from Dr. Martin Riss, an
osteopath, for a magnetic resonance imaging (MRI) scan of the right shoulder.
By decision dated May 5, 2008, the Office denied the claim on the grounds that appellant
did not submit any evidence containing a firm medical diagnosis that could be connected to the
January 30, 2008 employment incident.
On May 12, 2008 appellant filed a request for an oral hearing before an Office hearing
representative.
In a June 17, 2008 letter, the Office confirmed receipt of the request for an oral hearing.
By letter dated August 12, 2008, the Office notified appellant, at his address of record, that his
hearing was scheduled for September 17, 2008.
By decision dated October 21, 2008, an Office hearing representative found that appellant
abandoned his request for a hearing. The hearing representative stated that appellant was given
30 days’ notice of the scheduled hearing, that he did not appear at the scheduled hearing and that
there was no evidence that he attempted to contact the Office either prior or subsequent to the
scheduled hearing.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,

1

5 U.S.C. §§ 8101-8193.

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probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
ANALYSIS -- ISSUE 1
The Office accepted that on January 30, 2008 appellant was hit by a semitrailer door due
to high winds. The issue is whether appellant established that he sustained an injury causally
related to this employment incident.
In support of his claim, appellant submitted forms dated January 30 through February 26,
2008 signed by the employing establishment medical officers indicating that appellant was
qualified for light duty and a form dated March 10, 2008 indicating that he could return to full
duty. He also submitted an April 7, 2008 prescription note from Dr. Riss ordering a right
shoulder MRI scan.
The Board finds that none of this evidence is sufficient to meet appellant’s burden of
proof. Because medical officers are not included in the definition of a physician under the Act,
and because there is no evidence of record to establish that the medical officers are actually
physicians, the forms signed by the medical officers are of diminished probative value.8 Further,
2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

Under section 8101(2), the definition of physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2). See D.L., Docket No. 07-367 (issued May 15, 2007) (where the Board held that a medical
services officer is not included in the definition of a physician under the Act).

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the April 7, 2008 prescription note of Dr. Riss does not contain a diagnosis or address the cause
of appellant’s condition. Thus, this note is also of diminished probative value.9
Because appellant did not submit sufficient medical evidence to support his claim, the
Board finds that he failed to establish that the January 30, 2008 work event caused an injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Federal Employees’ Compensation Act provides that a claimant
not satisfied with a decision on her claim is entitled, upon timely request, to a hearing before a
representative of the Office.10
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual provides as follows:
“e. Abandonment of Hearing Requests:
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
Under these circumstances, H&R (Branch of Hearings and Review) will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the DO (district Office).”11
ANALYSIS -- ISSUE 2
On May 16, 2008 appellant filed a request for an oral hearing before an Office hearing
representative. By letter dated August 12, 2008, the Office notified him that his oral hearing was
scheduled for September 17, 2008. This notice was sent to appellant’s last address of record and
was not returned as undeliverable. Thus, under the mailbox rule, the presumption is that he
received proper notification of his hearing.12 The record shows that appellant did not request a
postponement of the hearing and failed to provide an explanation for his failure to attend within

9

See Robert Broome, 55 ECAB 339 (2004).

10

5 U.S.C. § 1824(b).

11

Federal (FECA) Procedure Manual, Chapter 2 -- Claims, Abandonment of Hearing Request, Chapter
2.1601.6(e) (January 1999).
12

Under the mailbox rule, a letter properly address and mailed in the due course of business, such as in course of
the Office’s daily activities, is presumed to have arrived at the mailing address in due course. See James A. Gray,
54 ECAB 277 (2002); Charles R. Hibbs, 43 ECAB 699 (1992).

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10 days of the scheduled date of the hearing. As the circumstances of this case meet the criteria
for abandonment, the Board finds that he abandoned his request for a hearing.13
The Board notes appellant’s contention on appeal that he notified the Office that he could
not attend the scheduled oral hearing. No such correspondence is contained in the record.
Although appellant submitted a copy of the alleged notification with his appeal, the notice
constitutes new evidence not previously before the Office and, thus, cannot be considered by this
Board on appeal.14
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury in the
performance of duty on January 30, 2008, as alleged. The Board also finds that the Office
properly determined that appellant abandoned his request for an oral hearing before an Office
hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the October 21 and May 5, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 13, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

See G.J., 58 ECAB ___ (Docket No. 07-1028, issued August 16, 2007).

14

See 20 C.F.R. § 501.2(c); Mary A. Ceglia, 55 ECAB 626 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 09-1377
Issued: February 24, 2010

Case Submitted on the Record

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

JURISDICTION
On May 5, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ September 12, 2008 and April 3, 2009 merit decisions denying his traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the claim.
ISSUE
The issue is whether appellant sustained a traumatic injury to his right shoulder and neck
on July 13, 2008.
FACTUAL HISTORY
On July 15, 2008 appellant, a 45-year-old transportation security screener, filed a
traumatic injury claim alleging that he sustained injuries to his right upper arm, shoulder and
neck when he lifted a bag onto a conveyor belt on July 13, 2008. Coworker David Cubbage

stated, “I was in the search work station and saw [appellant] lift the bag and he told me [he] felt
pain.”
Appellant submitted a July 15, 2008 disability slip from Dr. James S. Forage, a Boardcertified neurological surgeon, indicating that he was unable to work from July 14 through
August 30, 2008. He also submitted a July 23, 2008 report of a magnetic resonance imaging
(MRI) scan of the right shoulder.
On July 30, 2008 the Office informed appellant that the evidence and information
submitted was insufficient to establish that he had experienced the incident as alleged, or that he
had a diagnosed condition that resulted from the incident. Appellant was advised to submit
medical evidence which provided a diagnosis and a rationalized opinion explaining how the
alleged incident caused the diagnosed condition.
The record contains a July 13, 2008 emergency room report from Dr. Mathew
Vanderwoude, a treating physician, who provided a history of injury reflecting that appellant
experienced a sudden onset of sharp-shooting pain down the right arm into the neck, with limited
range of motion and weakness when he lifted a piece of luggage in the course of his duties as a
baggage handler. Examination revealed some right-sided paraspinal tenderness and spasm
within the cervical spine. Dr. Vanderwoude observed that appellant had a small left upper
extremity, secondary to a congenital anomaly. An MRI scan of the cervical spine showed
scoliosis and multilevel degenerative disc disease, resulting in compression of the right side of
the cord at the C3-4 level, mild marrow edema in the C4-5 vertebra, likely due to degenerative
disc disease, rather than subtle compression fractures. Dr. Vanderwoude diagnosed cervical
radiculopathy with multilevel degenerative disc disease and compression of the right side of the
cord at the C3-4 level.
Appellant submitted a July 30, 2008 report from Dr. Drake Rothstein, Board-certified in
the field of emergency medicine. Dr. Rothstein diagnosed soft tissue injury of the right upper
extremity. He noted that appellant worked as a baggage handler and was experiencing
intractable pain in his right shoulder. Examination of the right upper extremity revealed pain
with extension above 90 degrees and pain with external rotation. Dr. Rothstein indicated that an
MRI scan of the neck showed some cord edema in the C3-4 area. He recommended that
appellant remain “off work.”
Appellant submitted an August 12, 2008 report from Dr. Patrick S. McNulty, a Boardcertified orthopedic surgeon, who related that appellant had sustained a work injury on July 13,
2008, when he lifted a heavy bag onto a belt in his capacity as a security screener. Appellant
stated that he had noted an acute onset of pain at the time of the injury, and had been
experiencing right upper extremity weakness, numbness and “pins and needles” ever since.
Dr. McNulty indicated that appellant had “no significant symptoms similar to this previously.”
He noted that appellant suffered from Poland syndrome, a congenital deformity involving
absence of ribs, radius, pectoralis muscle and a nonformed clavicle. Dr. McNulty underwent
brain surgery in 2000, as well as multiple surgeries for his Poland syndrome condition. Physical
examination revealed hypoplasia of his left forearm, with significantly shortened left upper
extremity. Dr. McNulty found: significant weakness (approximately 3-4/5) with right shoulder

2

abduction, external rotation, elbow flexion, and supination; decreased light touch about the right
thumb; positive Spurling’s recreating paresthesias into the right thumb and index finger; negative
clonus, Babinski and Hoffman’s; and no hyperreflexia in the upper or lower extremities. X-rays
of the cervical spine show left-sided thoracic curvature, with secondary left-sided cervical
scoliosis and a right-sided upper thoracic scoliosis. An MRI scan of the cervical spine showed
right focal disc bulge causing moderately severe right canal stenosis, as well as foraminal
narrowing. The MRI scan also revealed disc osteophyte complex abutting the cord at C4-5,
causing relative stenosis, mild, consistent with concentric disc osteophyte complex at C5-6, with
no significant neurologic compression. Dr. McNulty stated that appellant had significant
neurologic dysfunction with right upper extremity weakness and numbness that “is of significant
dysfunction to this patient because of his congenital left upper extremity limited function due to
Poland’s syndrome involving a shortened left upper extremity.” He recommended urgent,
expedient surgical intervention to relieve symptomatic stenosis C3-4, C4-5. In an accompanying
work capacity evaluation, Dr. McNulty indicated that appellant was unable to perform the duties
of his usual position.
The employing establishment controverted appellant’s claim. In support of its
contention, it submitted a July 11, 2008 report from Dr. Forage, which reflected that he treated
appellant on that date for neck and shoulder pain, which radiated down his right arm and
forearm, and produced numbness in the thumb and index finger of the right hand. In an
August 25, 2008 “Physician Review Report,” Dr. Marianne Cloerman, an employing
establishment physician, opined that appellant’s condition was not work related, but rather was
preexisting, as evidenced by the fact that he was treated by Dr. Forage on July 11, 2008 for
numbness and weakness in the right hand and forearm.
On July 15, 2008 Dr. Forage noted that appellant had been treated in a hospital
emergency room due to severe pain. He found severe weakness in abduction of the right arm
and in the biceps. An MRI scan of the cervical spine showed right-sided disc herniation at L3-4
and right-sided foraminal stenosis at the C3-4 and C4-5 levels. In an August 5, 2008 report,
Dr. Forage noted continued severe deltoid and bicep weakness, and recommended C3-4 and C56 anterior cervical discectomy and fusion.
By decision dated September 12, 2008, the Office denied appellant’s claim on the
grounds that the medical evidence failed to establish that his claimed condition was causally
related to the established work-related event. On September 17, 2008 appellant requested an oral
hearing.
At a January 15, 2009 telephonic hearing, appellant testified that he had sought treatment
by Dr. Forage on July 11, 2008 for numbness in his right hand. He stated, however, that his visit
to Dr. Forage on July 13, 2008 pertained to his work injury on that date and the severe pain he
experienced in his shoulder when he lifted a bag onto the conveyor belt.
Subsequent to the hearing, appellant submitted a January 12, 2009 report from
Dr. Alexander Imas, a Board-certified physiatrist, who stated that appellant’s pain was a result of
his employment.

3

In a report dated December 23, 2008, Dr. Forage noted complaints of severe, agonizing
pain in the neck, radiating to the arm and the hand. He opined that appellant was temporarily
totally disabled as a result of his work-related injury from July 2008 until February 2009.
In a narrative report dated February 10, 2009, Dr. Forage stated that appellant saw him
initially on July 11, 2008 for a brain-related issue and was complaining of very mild symptoms
in the shoulder and neck. He related that appellant was at work lifting bags when he had severe
exacerbation of his pain two days after the July 11, 2008 visit. “The pain was sudden, severe and
unrelenting,” and was quite different from his previous symptoms. Dr. Forage indicated that
there were new findings of severe abduction weakness in the right arm and weakness in the
biceps. He opined that appellant’s symptoms and his need for surgery were directly related to
the lifting of the bags on July 13, 2008.
By decision dated April 3, 2009, the hearing representative affirmed the September 12,
2008 decision. The representative found that the evidence was sufficient to establish that the
July 13, 2008 incident occurred as alleged. However, the medical evidence was not sufficiently
rationalized to establish that his condition was causally related to the established event.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee, resulting from personal injury sustained while in the
performance of duty.1 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components which must be considered in conjunction with one another. The first is whether
the employee actually experienced the incident that is alleged to have occurred at the time, place,

1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
3

Robert Broome, 55 ECAB 339 (2004).

4

and in the manner alleged. The second is whether the employment incident caused a personal
injury, and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether
appellant sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his claim. The claimant has the burden of establishing by the weight of
reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.10 However, it is well established that proceedings under the Act are not
4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

20 C.F.R. § 10.303(a).

9

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

10

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

5

adversarial in nature and, while the claimant has the burden of establishing entitlement to
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.11
The Office accepted that the July 13, 2008 lifting incident occurred as alleged, but
found that the medical evidence of record was insufficient to establish that his condition was
causally related to the established event. The Board finds, however, that the medical evidence
of record supports that appellant sustained a work-related injury on July 13, 2008.
Dr. Forage provided an accurate factual and medical history. He diagnosed right-sided
disc herniation at L3-4 and right-sided foraminal stenosis at the C3-4 and C4-5 levels. Noting
that appellant had previously experienced very mild symptoms in the shoulder and neck, he
indicated that appellant was at work lifting bags when he had severe exacerbation of his pain on
July 13, 2008. Dr. Forage stated that “the pain was sudden, severe and unrelenting,” and was
quite different from his previous symptoms. He also indicated that there were new findings of
severe abduction weakness in the right arm and weakness in the biceps. Dr. Forage opined that
appellant’s symptoms and his need for surgery were directly related to the lifting of the bags on
July 13, 2008.
The remaining medical evidence of record also supports appellant’s claim.
Dr. Vanderwoude provided emergency room treatment on July 13, 2008. Dr. Vanderwoude
provided a history of injury reflecting that appellant experienced a sudden onset of sharp
shooting pain down the right arm into the neck, with limited range of motion and weakness when
he lifted a piece of luggage in the course of his duties as a baggage handler. He diagnosed
cervical radiculopathy with multilevel degenerative disc disease and compression of the right
side of the cord at the C3-4 level. An MRI scan of the cervical spine reportedly showed scoliosis
and multilevel degenerative disc disease, resulting in compression of the right side of the cord at
the C3-4 level, mild marrow edema in the C4-5 vertebra, likely due to degenerative disc disease,
rather than subtle compression fractures. However, Dr. Vanderwoude’s description of the
July 13, 2008 work incident and appellant’s concomitant onset of pain, supports appellant’s
claim that the incident exacerbated his condition.
Reports from Dr. Rothstein and Dr. McNulty also contained histories of injury reflecting
that appellant began experiencing intractable pain in his right shoulder after lifting a bag onto a
conveyor belt on July 13, 2008. Dr. Rothstein diagnosed a soft tissue injury and some cord
edema in the C3-4 area by MRI scan. Dr. McNulty provided detailed examination findings. He
stated that appellant had a right focal disc bulge causing moderately severe right canal stenosis,
as well as foraminal narrowing. An MRI scan also revealed disc osteophyte complex abutting
the cord at C4-5, causing relative stenosis. Dr. McNulty recommended urgent, expedient
surgical intervention to relieve symptomatic stenosis. Although neither physician explains how
appellant’s current condition is causally related to the July 13, 2008 incident, their reports
strongly suggest that appellant’s condition was at least aggravated by the accepted incident.

11

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 10; Dorothy L. Sidwell, 36
ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

6

The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that he sustained an employmentrelated upper extremity injury and are not contradicted by any substantial medical or factual
evidence of record. While the reports are not sufficient to meet his burden of proof to
establish his claim, they raise an uncontroverted inference between appellant’s claimed
condition and the accepted employment incident, and are sufficient to require the Office to
further develop the medical evidence and the case record.12 On remand the Office shall obtain
a rationalized opinion from a qualified physician as to whether appellant’s current condition is
causally related to the accepted incident, and shall issue an appropriate decision in order to
protect his rights of appeal.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained a traumatic injury in the performance of duty on July 13, 2008.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2009 September 12, 2008 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further development consistent with this decision.
Issued: February 24, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See Virginia Richard, supra note 10; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tinley Park, IL, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1528
Issued: November 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 6, 2015 appellant, through counsel, filed a timely appeal of a May 18, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from April 28, 2014, the most recent OWCP merit decision, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel argues that OWCP should have granted a review of the merits. He
further contends that OWCP may not have given appellant’s request for reconsideration a review
at all.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 30, 2009 appellant, a 41-year-old letter carrier, filed a traumatic injury claim
(Form CA-1), alleging that she sustained an injury on October 1, 2008 as a result of being struck
on the left side of her postal vehicle during a motor vehicle accident while delivering mail in the
performance of duty. OWCP accepted the claim for displacement of cervical intervertebral disc
without myelopathy and appellant received compensation benefits.
OWCP referred appellant to Dr. Steven Mather, an orthopedic surgeon, for an impartial
medical examination to determine the nature and extent of her employment-related condition
following the identification of a conflict in the medical record of this case. In his August 1, 2012
report, Dr. Mather found that appellant had “no findings on examination, nor any neck
complaints after her motor vehicle accident by her treating physicians in November 2008, to
validate the neck injury was from the October motor vehicle accident.” He concluded that
appellant had no employment-related conditions or residuals.
In a December 17, 2012 letter, OWCP proposed to rescind the acceptance of appellant’s
cervical condition and terminate her compensation benefits after finding that her cervical
condition was not employment related. It afforded her 30 days to submit additional evidence or
argument if she was in disagreement with the proposed action.
In a brief dated January 17, 2013, appellant’s attorney argued that Dr. Mather’s opinion
was insufficiently based on the statement of accepted facts (SOAF) and lacked sufficient
probative value to rescind appellant’s accepted cervical condition and terminate her
compensation benefits.
By decision dated March 5, 2013, OWCP rescinded the acceptance of appellant’s cervical
condition and terminated her compensation benefits finding that her cervical condition was not
employment related, relying upon Dr. Mather’s August 1, 2012 report.
On March 5, 2014 appellant, through counsel, requested reconsideration and submitted
additional medical evidence, including a January 27, 2014 report from Dr. Nadia Siddiqui, her
internist.
By decision dated April 28, 2014, OWCP denied modification of its March 5, 2013
termination decision. It explained that the weight of the medical evidence continued to rest with
Dr. Mather as he was an appropriate specialist to evaluate the claimed conditions, that he
reviewed appellant’s file, and that he conducted a thorough physical examination, and that he
provided an unequivocal and well-reasoned medical opinion resolving the conflict in medical
opinion based on accurate and consistent factual and medical history.
On April 27, 2015 appellant, through counsel, requested reconsideration of the merits of
her claim. Counsel submitted a brief dated April 26, 2015 arguing: (1) Dr. Mather had not
based his opinion on the SOAF; (2) OWCP had not given Dr. Mather the correct standard for
determining whether appellant’s diagnosis was related to her work injury; and (3) Dr. Mather
never answered the questions that OWCP presented to him.

2

By decision dated May 18, 2015, OWCP denied appellant’s request for reconsideration of
the merits finding that she did not submit pertinent new and relevant evidence and did not show
that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.2 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).3
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.5 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.6
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record7 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8
ANALYSIS
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
2

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

See A.L., Docket No. 08-1730 (issued March 16, 2009).

8

Id.

3

considered by OWCP. In support of her April 27, 2015 reconsideration request, appellant’s
counsel submitted a brief dated April 26, 2015 arguing that: (1) Dr. Mather had not based his
opinion off of the SOAF; (2) OWCP had not given Dr. Mather the correct standard in
determining whether appellant’s diagnosis was related to her work injury; and (3) Dr. Mather
never answered the questions that OWCP presented to him.
The Board finds that submission of these arguments does not require reopening
appellant’s case for merit review as they are substantially similar to the arguments counsel
presented in his January 17, 2013 brief and were addressed by OWCP in its merit decisions dated
March 5, 2013 and April 28, 2014, which found that Dr. Mather was an appropriate specialist,
reviewed the entire case file, completed a thorough physical examination, and provided a wellreasoned and unequivocal medical opinion based on a complete, accurate, and consistent history
of appellant’s case. Therefore, this evidence is repetitive or duplicative of arguments previously
considered and reviewed by OWCP, it does not constitute relevant and pertinent new evidence
and is insufficient to require OWCP to reopen the claim for consideration of the merits.9
Appellant did not submit any new medical evidence in support of her request.
On appeal counsel argues that OWCP should have granted a review of the merits. The
Board finds that as appellant did not meet any of the necessary requirements, she is not entitled
to further merit review.10 Counsel further contends on appeal that OWCP may not have given
appellant’s request for reconsideration a review at all. The Board finds that counsel’s argument
is not substantiated as OWCP noted considering counsel’s brief.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

See supra note 7.

10

See L.H., 59 ECAB 253 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 13-1227
Issued: October 22, 2013

Case Submitted on the Record

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

JURISDICTION
On April 24, 2013 appellant filed a timely appeal from the March 8, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
disability on or after December 1, 2011 due to her accepted July 25, 2011 work injury.
FACTUAL HISTORY
On July 25, 2011 appellant, then a 33-year-old food inspector, filed a traumatic injury
claim alleging injury on July 25, 2011 when she pulled on a chair. She requested that she receive
1

5 U.S.C. §§ 8101-8193.

continuation of pay (COP) which she was paid starting July 25, 2011. Appellant stopped work
on July 25, 2011. On August 25, 2011 OWCP accepted that she sustained a work-related sprain
of her lumbar region.
In a July 27, 2011 form report, Dr. Harold Weems, an attending Board-certified
orthopedic surgeon, provided various work restrictions. He advised that appellant could not lift
more than 15 pounds and that she should not engage in bending, stooping or squatting.
On August 30, 2011 the employing establishment offered appellant an alternative-duty
assignment. The description of the assignment stated that she would perform the full duties of
her food inspector position, except that an inspector’s helper would hang all carcasses presented
for inspection. Appellant did not accept the position and she remained off work.
In an August 31, 2011 disability slip, Dr. Hasmukh Patel, an attending Board-certified
internist, advised that appellant should be off work until she had a magnetic resonance imaging
(MRI) scan.
On September 8, 2011 appellant filed a claim for compensation (Form CA-7) for
disability compensation from July 25 to September 8, 2011. She later filed CA-7 forms claiming
disability from September 9 through mid-December 2011.
In a September 13, 2011 letter, OWCP requested that appellant submit additional factual
and medical evidence within 30 days in support of her September 8, 2011 disability claim. It
noted that the employing establishment had offered her an alternative-duty assignment on
August 30, 2011 and included language from section 8106(c)(2) of FECA regarding the
termination of compensation for refusing suitable work.
Appellant submitted a September 5, 2011 report from Dr. James M. Arthur, an attending
Board-certified neurosurgeon, who stated that she was under his care for a bulging disc at L5-S1
and that she was to remain off work until October 12, 2011. In a September 26, 2011 note,
Dr. Patel indicated that appellant had low back pain caused by central disc protrusion and that
she would be off work until she was seen by Dr. Arthur. A September 28, 2011 report from
Dr. Arthur stated that appellant would be off work until October 5, 2011 and an October 18,
2011 note from Dr. Arthur indicated that she was able to perform limited-duty work beginning
November 20, 2011.
In a December 29, 2011 decision, OWCP denied appellant’s claim for wage-loss
compensation beginning August 31, 2011. It noted that COP was authorized through
August 30, 2011. In the basis for decision portion of an accompanying memorandum, it briefly
discussed some of the medical evidence submitted by appellant and noted that it did not provide
medical rationale regarding the relationship of the claimed disability to the July 25, 2011 work
injury. The decision stated, “COP and wage[-]loss compensation benefits beginning August 31,
2011 and continuing are denied because you refused suitable work.”
In brief notes dated in early December 2012, appellant’s attending physicians, including
Dr. Patel, noted that she complained of low back pain.

2

In a January 11, 2012 report, Dr. Arthur stated that, according to appellant’s history and
medical reports, she had no previous back-related problems or complaints prior to July 25, 2011.
While under his care, appellant had several epidural injections and was prescribed medication.
He reported that any “excess activities” aggravated her condition. Dr. Arthur noted that she
remained under his care and was scheduled to have an epidural injection in March 2012.
In a September 7, 2012 decision,2 the Board set aside OWCP’s December 29, 2011
decision. The Board found that OWCP did not make adequate factual findings in its
December 29, 2011 decision. In one portion of the decision, OWCP suggested that it denied her
claim because she did not submit sufficient medical evidence to establish work-related disability
after August 30, 2011, but in other portions of the decision it denied appellant’s claim for
disability compensation after August 30, 2011 because she had refused suitable work. The
Board remanded the case to OWCP for further development, to include issuance of a merit
decision containing adequate factual findings regarding appellant’s claim on whether she was
entitled to disability compensation after August 30, 2011 due to her July 25, 2011 work injury.
On remand, OWCP referred appellant to Dr. Robert Holladay, IV, a Board-certified
orthopedic surgeon, for examination and further evaluation of her medical condition.3
In an October 11, 2012 report, Dr. Holladay reported his findings on examination and
stated that, by clinical examination, there was no medical abnormal neurological finding as a
result of the July 25, 2011 lumbar sprain. He noted that lumbar strains/sprains usually healed in
a three-month time frame. Dr. Holladay stated, “There is no plausible, credible medical
explain[ation] of low back pain.” He advised that appellant “long ago has been physically
capable” of returning to her regular work without restrictions and noted. “As I have stated
above, the claimant has ongoing clinical complaints which cannot be explained on a medical
basis considering the fact that there was no acute structural injury to the spine at the time of the
event of [July 25, 2011].”
OWCP asked Dr. Holladay for a supplemental report advising when appellant was able to
return to regular duty as indicated in his October 11, 2012 report.
In a February 25, 2013 report, Dr. Holladay stated that he had reviewed his prior report
and noted:
“It is my opinion, [appellant] was not able physically to return to alternative work
until December 1, 2011….
The clinical records note her complaints,
exam[ination] findings and she was undergoing testing during the time frame
from August 31, 2011 until December 1, 2011. It is my opinion she was not able
to return to modified work or full work on December 1, 2011.”
2

Docket No. 12-940 (issued September 7, 2012).

3

OWCP asked Dr. Holladay to indicate whether appellant was able to perform the duties of the light-duty
position she was offered on August 31, 2011. Appellant continued to file CA-7 forms claiming that she was entitled
to disability compensation for the periods in 2012.

3

In a March 8, 2013 decision, OWCP determined that appellant did not establish that she
sustained disability on or after December 1, 2011 due to her July 25, 2011 work injury. It found
that Dr. Holladay’s opinion constituted the weight of the medical evidence and stated:
“The claim for lost wages beginning December 1, 2011 is denied. The second
opinion physician opined that you were no longer disabled as of that date.
Accordingly, only the compensation claim for leave without pay prior to
December 1, 2011 will be processed. Note that although you claimed the use of
leave without pay beginning July 25, 2011, your [COP] period did not end until
September 8, 2011. Your agency is responsible for any compensation during that
period.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5
Whether a particular employment injury causes disability for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of
reliable, probative and substantial medical evidence.6
ANALYSIS
OWCP accepted that appellant sustained a work-related lumbar strain on July 25, 2011.
She received COP for the period July 25 to September 8, 2011 and filed claims for disability
commencing September 9, 2011. In a March 8, 2013 decision, OWCP found that appellant was
entitled to disability compensation for the period September 9 to November 30, 2011 but that she

4

J.F., Docket No. 09-1061 (issued November 17, 2009).

5

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6

W.D., Docket No. 09-658 (issued October 22, 2009).

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had not met her burden of proof to establish that she sustained disability on or after December 1,
2011 due to her July 25, 2011 work injury.7
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained disability on or after December 1, 2011 due to her July 25, 2011 work injury.
Appellant submitted a limited number of brief medical reports in support of her claim. In
notes dated in early December 2012, appellant’s attending physicians, including Dr. Patel,
indicated that she continued to complain of low back pain. However, the physicians did not
address whether she sustained work-related disability on or after December 1, 2011. In a
January 11, 2012 report, Dr. Arthur, an attending Board-certified neurosurgeon, stated that,
according to the medical history, appellant had no previous back-related problems or complaints
prior to July 25, 2011, the date of her work injury. He noted that appellant reported that any
“excess activities” aggravated her condition. The submission of this report does not establish
appellant’s claim. Dr. Arthur did not provide a clear opinion on whether appellant had disability
on or after December 1, 2011 due to her July 25, 2011 injury.
The record contains medical evidence showing that appellant did not have work-related
disability on or after December 1, 2011. In reports dated October 11, 2012 and February 25,
2013, Dr. Holladay, a Board-certified orthopedic surgeon serving as an OWCP referral
physician, determined that on December 1, 2011 appellant could return to her regular work on a
full-time basis without restrictions. He noted appellant’s July 25, 2011 lumbar sprain had
resolved and indicated that she had ongoing clinical complaints which could not be explained on
a medical basis considering the fact that there was no acute structural injury to the spine due to
July 25, 2011 work incident.
For these reasons, appellant has not established work-related disability on or after
December 1, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained disability on or after December 1, 2011 due to her July 25, 2011 work injury.

7

The Board notes that it was appellant’s burden of proof to establish entitlement to disability compensation on or
after December 1, 2011 as she filed CA-7 forms and had not received OWCP compensation prior to the time that
OWCP accepted her claim for the short period September 9 to November 30, 2011. See generally Federal (FECA)
Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4 (August 1994).

5

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL TEXAS HEALTH CARE SYSTEM,
Waco, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-0576
Issued: July 19, 2016

Case Submitted on the Record

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

On February 1, 2016 appellant filed a timely appeal of a November 19, 2015 decision of
the Office of Workers’ Compensation Programs (OWCP), which declined to review her claim
for a schedule award. The Board docketed the appeal as No. 16-0576.
The Board has duly considered the matter and finds that this case is not in posture for a
decision. On July 21, 2011 OWCP accepted appellant’s claim for a fracture of the right ankle,
right shoulder conditions, and internal derangement of the right knee. It accepted the additional
condition of tear of the left medial meniscus on October 14, 2011. By decision dated
September 25, 2014, OWCP granted appellant a schedule award for 30 percent permanent
impairment of the left leg, 5 percent of the right leg, and 1 percent of the right arm.
Following this decision, appellant submitted additional medical evidence regarding the
extent of her permanent impairment. On December 17, 2014 and March 2, 2015 she requested
reconsideration of the September 25, 2014 decision. By decision dated May 29, 2015, OWCP
refused to reopen appellant’s claim for consideration of the merits. On September 30, 2015
appellant again requested reconsideration of the September 25, 2014 decision. She submitted
additional medical evidence. By decision dated November 16, 2015, OWCP expanded
appellant’s claim to include complete rotator cuff tear of the right shoulder and joint

derangement of the left ankle. However, by decision dated November 19, 2015, it declined to
reopen appellant’s schedule award claim finding that her request for reconsideration was
untimely and did not establish clear evidence of error.
The Board finds that, in accordance with relevant case law and regulations, the case
should be remanded for adjudication of appellant’s schedule award claim. A claimant may seek
an increased schedule award if the evidence establishes that he or she sustained increased
impairment at a later date causally related to the accepted employment injury.1
As appellant requested reconsideration of her schedule award decision and submitted new
medical evidence in support of the claim, OWCP was incorrect in failing to adjudicate and
process the claim. The Board will therefore remand the case for an appropriate decision which
will address the medical evidence submitted in support of the employee’s claim of increased
permanent impairment. Following such further development as OWCP deems necessary, it shall
issue an appropriate decision on the merits.
IT IS HEREBY ORDERED THAT the case record is remanded to the Office of
Workers’ Compensation Programs for further proceedings consistent with this order of the
Board.
Issued: July 19, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

1

See S.B., Docket No. 15-1499 (issued October 16, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.7(b) (January 2010).

2


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

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

Docket No. 07-38
Issued: September 26, 2007

Case Submitted on the Record

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

JURISDICTION
On October 2, 2006 appellant filed a timely appeal from an August 17, 2006 merit
decision of the Office of Workers’ Compensation Programs which affirmed the denial of her
claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office’s August 17, 2006 decision was properly issued;
and (2) whether appellant met her burden of proof to establish that she sustained a recurrence of
disability on and after December 18, 2004 causally related to her accepted employment injury of
December 22, 1994.
FACTUAL HISTORY
On January 9, 1995 appellant, then a 36-year-old manual clerk, filed an occupational
injury claim (Form CA-2) alleging that she developed low back pain due to moving containers
and lifting bags weighing up to 70 pounds. On February 14, 1996 the Office accepted her claim

for a subluxation L5-S1. Appellant stopped work on December 23, 1994 and returned to work
on January 9, 1995.
In a Form CA-2a received by the Office on February 25, 2005, appellant claimed a
recurrence of her December 22, 1994 employment injury on or about December 18, 2004. She
advised that her back pain never completely stopped and that it had intensified. Appellant
stopped work on December 18, 2004 and has not returned. She filed CA-7 forms for wage-loss
compensation from December 18, 2004 onwards.
In an attending physician’s report (Form CA-20) received by the Office on March 21,
2005, Dr. John M. Stamatos, a Board-certified anesthesiologist, advised that appellant had a
lumbar herniated nucleus pulposus with radiculopathy.
In an April 4, 2005 letter, the Office advised appellant of the factual and medical
evidence required for claiming a recurrence of her employment-related condition.
In a May 3, 2005 report, a nurse for Dr. Stamatos noted appellant’s subjective complaints
of pain and outlined a treatment plan.
By decision dated June 24, 2005, the Office denied appellant’s recurrence of disability
claim on the basis that the medical evidence failed to establish that her medical condition was
causally related to the accepted employment injury.
In a letter dated June 6, 2006, appellant’s attorney requested reconsideration based on
medical evidence not previously submitted and advanced legal arguments.1 New evidence, not
previously considered, consists of a May 5, 2006 report from Dr. Stamatos and a May 31, 2005
report from a nurse.
By decision dated August 17, 2006, the Office denied modification of its June 24, 2005
decision. The record does not reflect that a copy of the August 17, 2006 decision was mailed to
appellant’s attorney.

1

The letter also contains a June 7, 2006 statement from appellant authorizing the attorney to represent her in
support of her claim.

2

LEGAL PRECEDENT -- ISSUE 1
Section 10.127 of the regulation directs the Office to mail a copy of any decision it may
issue to claimant’s last known address. If the claimant has a designated representative, then a
copy of the decision must also be mailed to the representative.2
A properly appointed representative who is recognized by the Office may make a request
or give direction to the Office regarding the claims process, including a hearing. This authority
includes presenting or eliciting evidence, making arguments on facts or the law and obtaining
information from the case file, to the same extent as the claimant. Any notice requirement
contained in the regulation or the Federal Employees’ Compensation Act3 is fully satisfied if
served on the representative and has the same force and effect as if it had been sent to the
claimant.4
A decision under the Act is not deemed to have been properly issued unless both
appellant and the authorized representative have been sent copies of the decision.5
ANALYSIS -- ISSUE 1
The record establishes that appellant had an authorized representative. The representative
first wrote to the Office on June 6, 2006 when he filed a request for reconsideration of the denial
of appellant’s recurrence claim. To establish his authority to act on appellant’s behalf, he filed
an appointment of representation, which appellant signed on June 7, 2006. When it issued its
August 17, 2006 decision denying modification of appellant’s recurrence claim, the Office did
not mail a copy of the August 17, 2006 decision to appellant’s representative as required.
The Board has held that a decision under the Act is not deemed to have been properly
issued unless both appellant and the authorized representative have been sent copies of the
decision.6 Since the record establishes that the Office’s August 17, 2006 decision was not sent to
the authorized representative on that date, the Board finds that the decision was not properly
2

20 C.F.R. § 10.127 (if the employee has a designated representative before the Office, a copy of the decision
will also be mailed to the representative). See Travis L. Chambers, 55 ECAB 138 (2003) (holding that section
10.127 requires that a copy of an Office decision be sent to the authorized representative and that any other
interpretation of the language of the regulation would be inconsistent with the clear language of its initial
provisions). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Fees for Representative’s Services,
Chapter 2.1200.2(b)(2) (February 2005) (copies of all correspondence and decisions should be sent to both the
claimant and the authorized representative); Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of
Claims, Chapter 2.800.3(c)(1) (April 1993) (the Office must provide information about procedures involved in
establishing a claim, including detailed instructions for developing the required evidence to all interested parties (the
claimant, the employing establishment and the representative, if any).
3

5 U.S.C. § 8101 et seq.

4

20 C.F.R. § 10.700(c). See also Sara K. Pearce, 51 ECAB 517 (2000).

5

See Travis L. Chambers, supra note 2.

6

Id.

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issued. Therefore, the case must be remanded to the Office, so that the decision may be properly
issued.
CONCLUSION
The Board finds that the Office’s August 17, 2006 decision was not properly issued. The
case will be remanded to the Office for further action in conformance with this decision in order
to protect appellant’s appeal rights.7
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: September 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7

In light of the Board’s resolution of the procedural issue, the case is not in posture for the Board to render a
decision on the second issue.

4


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
M.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Saint Cloud, MN, Employer
________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1778
Issued: April 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On August 22, 2012 appellant sought appeal from an August 3, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her request for an oral
hearing. The Board assigned Docket No. 12-1778.
The Board has duly considered the matter and finds the case is not in posture for a
decision and must be remanded to OWCP. On December 8, 2011 appellant filed a traumatic
injury claim alleging a work-related injury on that date. On January 17, 2012 she notified
OWCP of her address in Saint Joseph, MN. By decision dated January 26, 2012, OWCP denied
appellant’s claim. OWCP mailed the decision to Saint Cloud, MN. The decision was returned to
OWCP as being unable to forward on February 6, 2012. On June 14, 2012 appellant requested
an oral hearing, again noting her address in St. Joseph, MN. By decision dated August 3, 2012,
OWCP found that she was not entitled to a hearing as her request for a hearing was not made
within 30 days of the issuance of its January 26, 2012 decision.1
OWCP regulations provide that “A copy of the decision shall be mailed to the
employee’s last known address.”2 Under the mailbox rule, it is presumed, in the absence of
evidence to the contrary, that a notice mailed to an individual in the ordinary course of
1

OWCP also mailed this decision to an incorrect Saint Cloud, MN, address.

2

20 C.F.R. § 10.127.

business was received by that individual. This presumption arises when it appears from the
record that the notice was properly addressed and duly mailed.3 However, as a rebuttable
presumption, receipt will not be assumed when there is evidence of nondelivery.4 Also, it is
axiomatic that the presumption of receipt does not apply where a notice is sent to an incorrect
address.5 OWCP mailed the January 26, 2012 decision to an incorrect address in Saint Cloud,
MN and not to appellant’s correct home address in St. Joseph, MN. The decision was also
returned to OWCP by the postal service as undeliverable. Thus, the Board finds that OWCP
did not properly issue its January 26, 2012 decision.6 For this reason, the case will be
remanded to OWCP for proper issuance of de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the August 3, 2012 nonmerit decision of the Office
of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this order of the Board.
Issued: April 12, 2013
Washington, DC

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

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

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

3

See Michelle Lagana, 52 ECAB 187 (2000).

4

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009).

5

See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).

6

See Tammy J. Kenow, 44 ECAB 619 (1993).

2