United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 09-227
Issued: August 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 30, 2008 appellant, through her attorney, filed a timely appeal from an Office
of Workers’ Compensation Programs’ January 25, 2008 merit decision and a July 30, 2008
hearing representative’s decision granting her a schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than three percent permanent impairment of each
lower extremity. On appeal, appellant’s attorney contends that the impartial medical examiner’s
opinion was outside the framework of the statement of accepted facts.
FACTUAL HISTORY
On April 1, 2005 appellant, then a 35-year-old legal instruments examiner, filed a claim
for an injury occurring on that date when she slipped and fell on ice while walking to her
building. The Office accepted her claim for bilateral post-traumatic chondromalacia of the

knees, lumbar and thoracic sprains, lumbar radiculopathy and thoracic or lumbosacral neuritis or
radiculitis.
On October 1, 2006 appellant filed a claim for a schedule award. On October 27, 2006
the Office requested that she submit a report from an attending physician evaluating the extent of
any permanent impairment of her lower extremities due to her work injury in accordance with
the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A., Guides).
Appellant, through her attorney, submitted a report dated June 20, 2006 from Dr. David
Weiss, an osteopath, Board-certified in family practice. For the right side, Dr. Weiss determined
that appellant had 13 percent impairment due to thigh atrophy1 and 3 percent impairment due to
pain, for a total right lower extremity impairment of 16 percent.2 For the left side, he found a
three percent impairment of the lower extremity due to pain.3
On July 7, 2007 the Office medical adviser concluded that appellant had three percent
impairment of each lower extremity due to pain. He advised that she reached maximum medical
improvement on June 20, 2006.
On August 20, 2007 the Office referred appellant, together with a statement of accepted
facts, to Dr. Roy Friedenthal, a Board-certified orthopedic surgeon, to resolve a conflict in
medical opinion between Dr. Weiss and the Office medical adviser regarding the extent of any
permanent impairment. In a report dated September 20, 2007, Dr. Friedenthal found no thigh
atrophy and no instability or effusion of the knees. He noted that x-rays were not available for
review. On examination, Dr. Friedenthal found intact cruciate ligaments, valgus symmetrical in
both knees, no effusion or atrophy and no loss of motion. He diagnosed status post minor knee
contusion by history, thoracolumbar strain, by history, degenerative disc disease of the lumbar
spine, chondromalacia patellae, possible early patellofemoral arthrosis by history and possible
de Quervain’s syndrome of the right wrist. Dr. Friedenthal related:
“Considering the body habitus of [appellant], she is at significant propensity
towards chondromalacia and patellofemoral arthrosis even in the absence of any
injury. In the absence of external signs of injury, in the absence of objective
evidence of patellofemoral damage, it is my considered opinion that no new
patellofemoral damage was sustained. [Appellant] may well have felt the
symptoms of any underlying and preexisting chondromalacia patella. This does
not imply new structural damage. At the time of my evaluation her findings are
actually extremely quiescent insofar as there was no pain or crepitus on initial
patellofemoral motion. There was no restriction of motion. There was no
evidence of instability and there was no muscle atrophy. There was no evidence

1

A.M.A., Guides 530, Table 17-6.

2

Id. at 574, Figure 18-1.

3

Id.

2

that her underlying condition was in any way altered by superimposed injury
reported.
“In summary, it is my considered opinion that [appellant] has fully recovered
from minor soft tissue injuries reportedly sustained. I find no indication for
ongoing treatment and no permanency is assigned referable to the reported injury.
[Appellant] does have underlying and preexisting degenerative processes, which
may be sources of symptomatology. These conditions have not been altered. At
the time of my evaluation they provide no measurable functional impairment.”
On November 26, 2007 an Office medical adviser reviewed Dr. Friedenthal’s findings.
He found that appellant had no impairment of either knee due to loss of range of motion,
instability, arthritis, weakness or atrophy. The Office medical adviser determined that she had
three percent impairment due to pain according to Figure 18-1 on page 574 of the A.M.A.,
Guides.
By decision dated January 25, 2008, the Office granted appellant a schedule award for
three percent impairment of each lower extremity. The period of the award ran for 17.28 weeks
from June 20 to October 18, 2006.
On January 31, 2008 appellant, through her attorney, requested an oral hearing. At the
hearing, held on May 13, 2008, counsel argued that the statement of accepted facts provided to
the impartial medical examiner erroneously indicated that the claim was accepted for
lumbosacral neuritis or radiculitis rather than radiculopathy. He argued that the Office medical
adviser should have utilized Dr. Weiss’ atrophy finding. Counsel also questioned whether
Dr. Friedenthal was appropriately selected using the Physician’s Directory System (PDS), noting
that some physicians were bypassed because they did not return the Office’s telephone call. He
noted that the Office medical adviser who created the conflict reviewed the report of the
impartial medical examiner.
By decision dated July 30, 2008, the hearing representative affirmed the March 5, 2008
decision. She noted that the Office medical adviser who created the conflict did not review the
impartial medical examiner’s report. The hearing representative determined that the Office
properly selected Dr. Friedenthal as the impartial medical specialist using the PDS.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,4 and its
implementing federal regulations,5 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

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claimants.6 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.7
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9
The Office procedure manual provides as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”10
ANALYSIS
The Office accepted that appellant sustained post-traumatic chondromalacia of both
knees, lumbar and thoracic sprains, lumbar radiculopathy and thoracic or lumbosacral neuritis or
radiculitis. On October 1, 2006 appellant filed a claim for a schedule award and submitted a
report from her attending physician, Dr. Weiss, who found that she had a 16 percent permanent
impairment of the right lower extremity. An Office medical adviser reviewed Dr. Weiss’ report
and concluded that appellant had three percent right lower extremity impairment. Due to the
disagreement between Dr. Weiss and the Office medical adviser, the Office found a conflict in
medical evidence regarding the extent of her permanent impairment and referred her to
Dr. Friedenthal for resolution of the conflict.
On appeal appellant’s attorney contends that Dr. Freidenthal’s opinion is outside the
statement of accepted facts. When there exists a conflict in medical opinion and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.11 To assure that the report of a medical specialist is based upon a
6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

5 U.S.C. § 8123(a).

9

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3)
(October 1990).
11

Darlene R. Kennedy, 57 ECAB 414 (2006).

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properly factual background, the Office provides information to the physician through the
preparation of a statement of accepted facts.12 The Office procedure manual provides:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”13
The Board finds that the opinion of Dr. Freidenthal is not entitled to special weight as his
opinion did not follow outside of the statement of accepted facts. He opined that appellant “may
have strained a muscle” at the time of her work injury and found that she had preexisting
chondromalacia patella due to her weight rather then her employment injury. The Office,
however, accepted post-traumatic chondromalacia of both knees due to appellant’s April 1, 2005
slip and fall.
Further, while Dr. Friedenthal found that appellant had no impairment resulting from her
chondromalacia, he did not apply the appropriate table for determining impairments due to
arthritis under the A.M.A., Guides in reaching his conclusion. He concluded that she had no
impairment based on a full range of motion and lack of crepitation and other clinical findings.
However, section 17.2h on page 544 of the A.M.A., Guides provides:
“For most individuals, roentgenographic grading is a more objective and valid
method for assigning impairment estimates than physical findings, such as range
of motion or joint crepitation. While there are some individuals with arthritis for
whom loss of motion is the principal impairment, most people are impaired more
by pain and sometimes weakness, but they still can maintain functional ranges of
motion, at least in the early stages of the process. Range-of-motion techniques
are therefore of limited value for estimating impairment secondary to arthritis in
many individuals. Crepitation is an inconstant finding that depends on such
factors as forces on joint surfaces and synovial fluid viscosity.”
Table 17-31 on page 544 of the A.M.A., Guides, entitled “Arthritis Impairments Based
on Roentgenographically Determined Cartilage Intervals” is the only table provided for
determining impairment resulting from an arthritic condition of the lower extremity.
Dr. Freidenthal’s opinion is insufficient to resolve the conflict in medical opinion. On
remand, the Office should obtain a thorough medical report addressing the impairment of
appellant’s lower extremities which includes measuring appellant’s cartilage level by x-ray.14

12

See Helen Casillas, 46 ECAB 1044, 1052 n.15 (1995).

13

See supra note 10.

14

See A.C., Docket No. 07-199 (issued April 16, 2007).

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 30 and January 25, 2008 are set aside and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: August 24, 2009
Washington, DC

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

David S. Gerson, 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.W., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Baltimore, MD,
Employer
__________________________________________

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

Docket No. 14-1242
Issued: March 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 5, 2014 appellant filed a timely appeal from an April 1, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Since more than 180 days elapsed
from the last merit decision of September 17, 2009 and the filing of this appeal and 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.3

1

Included with appellant’s appeal was a timely request for oral argument. On January 5, 2015 the Board issued
an Order Denying Request for Oral Argument in this case. Docket No. 14-1242 (issued January 5, 2015).
2
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5 U.S.C. §§ 8101-8193.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits as his request for reconsideration was not timely filed and failed to establish
clear evidence of error.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 42-year-old health insurance specialist, filed both
traumatic injury and occupational disease claims. On the traumatic injury claim form, he
indicated that the date of injury was 1994 and, on the occupational disease claim form, he alleged
that he developed a stress-related condition in 1994 and first realized that his condition was
caused or aggravated by his employment in 1994. Appellant attributed his condition to
harassment and discrimination by the employing establishment, a hostile work environment, and
reassignment to a position in which he had limited experience. He was terminated from the
employing establishment effective May 6, 1997. In a June 12, 2007 statement, the employing
establishment challenged the claim on the grounds that appellant did not file a timely notice of
injury within three years of the claimed injury. It noted that none of his former supervisors were
available to confirm or refute the claim.
By letter dated June 15, 2007, OWCP requested that appellant explain the delay to file
the claim, address the specific work factors being claimed and provide any documentary
evidence regarding any complaints, explain the development of his condition, and provide all
medical records, including a detailed medical report addressing causal relationship of the alleged
work factors, and his condition. On June 5, 2007 appellant filed a Form CA-7, claiming
wage-loss benefits. On July 30, 2007 he also submitted a nine-page statement along with various
records, which included notices of disciplinary action, an April 9, 1998 notice of approval for
disability retirement, an undated affidavit from Kermit Lee, and personnel records.
By decision dated August 31, 2007, OWCP denied the claim finding insufficient
evidence to establish that appellant filed a timely notice of injury.
On October 1, 2007 appellant requested an oral hearing before an OWCP hearing
representative. In a December 10, 2007 letter, he requested that subpoenas be sent for testimony
and documents. By letter dated July 8, 2008, the request was denied.
A hearing was held on July 29, 2008. Appellant argued that his disabling mental and
physical state and the subpoena denial put him at a disadvantage to present evidence and/or
arguments regarding his appeal. He testified that he continued to be subjected to employing
establishment retaliation. Appellant stated that he initially requested assistance about his rights
and mental disability in 1998 and argued the employing establishment was aware of his mental
condition and disability in 1998. He stated that he began experiencing problems in the
workplace during 1994. Appellant’s personnel file was updated for a handicap code in an
April 1994 SF-50, which he argued put the employing establishment on notice of his disability.
He also sought assistance through the Employee Assistance Program, which also demonstrated
his disability to the employing establishment. Appellant elaborated upon the specific work
factors claimed, which started in 1994. He stated that, although he was subjected to harassment,
and a retaliatory and threatening work environment, he continued performing his job duties and
had notified the employing establishment of an injury, explaining that the actions of the
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employing establishment and the employees had contributed to his condition at that time.
Appellant explained that, during 1996, his condition began to manifest itself as a result of
ongoing events in the workplace and provided details of those events.
Appellant testified that, during September 1996, he did not advise the employing
establishment of an injury as he did not consider that he was injured at that time. He stated,
however, that they knew of the work factors and hostility in the work environment. Appellant
referenced various e-mails and discussions with supervisors with regard to work-related events
and argued that this put the employing establishment on notice that the situations could have
caused or resulted in his condition. He argued that his delay to file the claim should be excused
under the equitable tolling rule as the employing establishment was inappropriate and showed
misconduct in its actions by not assisting him or providing him with information and allowed the
filing deadline to pass. Appellant indicated that he was not allowed to return to the employing
establishment’s premises after his March 4, 1996 removal and subsequent termination. When he
filed his claim for Office of Personnel Management (OPM) benefits in 1997 or 1998, he had
made the employing establishment aware that he wanted to file an injury claim at that time and
requested OPM information. Appellant submitted evidence in support of his arguments.
By decision dated December 1, 2008, OWCP’s hearing representative affirmed the
August 31, 2007 decision. She found that, at the time appellant was terminated in May 1997, it
was evident from his testimony, the record evidence and argument presented, that he was aware,
or by exercise of reasonable diligence should have been aware, of a causal relationship between
his employment and the claimed emotional condition to some degree; thus OWCP properly
determined that he did not file within three years of his last exposure to the alleged work factors,
May 6, 1997. The hearing representative further found that there was no evidence to establish
that the immediate supervisor had knowledge of an on-the-job injury or that written notification
was provided to advise of such. Further, none of the exceptions which would toll the relevant
time limitation provision were applicable.
On August 7, 2009 OWCP received a seven-page request for reconsideration from
appellant. In his statement, appellant alleged that the date of injury was March 3, 1997 and that
he reported the injury various individuals and union representatives. He noted that 1994 was the
date he filed his racial harassment and discrimination complaint. Appellant further argued that
he reported his injury to a Mr. Jones and a Mr. Moore on March 4, 1997 and told them he would
like to make a claim. He also stated that he had requested to file a claim to several individuals,
whom he listed, both before and after his 1997 termination. Appellant also argued that OWCP
erred in denying an excusable neglect waiver of the three-year time frame and listed several
federal laws and court proceedings in support of his contention. He also argued that the denial of
the subpoena for witnesses and production of discovery documents was error.
The new evidence submitted included: court proceedings from 2007 and 2008; Maryland
Office of Administrative Hearings certification form completed April 9, 2008 with a statement
from appellant attached; Merit Systems Protection Board (MSPB) decision dated August 6,
2008; a social security decision dated July 28, 2008; the Federal Register; and several Supreme
Court rulings.
By decision dated September 17, 2009, OWCP reviewed the merits of the claims but
denied modification of the prior decision.
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On February 9, 2010 OWCP received appellant’s request for reconsideration, which
included 109 pages of arguments and documents. Appellant argued that his Federal Employees’
Retirement System disability retirement application of December 10, 1997 showed that he
suffered from paranoia due to harassment and discrimination. He argued that a Mr. Jones and a
Mr. Moore and a Dr. McPhillips were notified of his injury and failed to help him complete the
claim form. Appellant argued that he was banned from the employing establishment’s buildings
and denied the right to file for benefits, including workers’ compensation. He argued that he was
intentionally given incorrect appeal rights to the MSPB and Equal Employment Opportunity
Commission by the employing establishment. Appellant also argued that in 1997 he was
diagnosed with paranoid delusional disorder and depression and his decision-making ability was
seriously limited.
By nonmerit decision dated February 24, 2010, OWCP denied reconsideration of the
prior decision, finding that the arguments were either previously considered and addressed or not
relevant to the issue of whether the claim was timely filed.
On April 2, 2010 OWCP received an 18-page reconsideration request from appellant, in
which he contended that his claim was timely filed. Evidence submitted included duplicate
copies of information previously of record.
By nonmerit decision dated July 1, 2010, OWCP denied reconsideration of the prior
decision, finding that the reconsideration request neither raised substantive legal questions nor
included new and relevant evidence or contentions not previously considered.
On July 19, 2010 OWCP received a July 16, 2010 letter from appellant requesting
reconsideration. Arguments and evidence previously considered were submitted. By nonmerit
decision dated September 13, 2010, OWCP again denied reconsideration of the prior decision,
finding that the reconsideration request neither raised substantive legal questions nor included
new and relevant evidence or contentions not previously considered.
On May 9, 2012 OWCP received appellant’s letter requesting reconsideration. Appellant
contended that his supervisor had timely knowledge of his condition; that his delusional disorder
prevented him from filing a timely claim; and that he was discriminated against by officials at
the employing establishment.
By nonmerit decision dated July 26, 2012, OWCP denied reconsideration of the prior
decision, finding that the reconsideration request neither raised substantive legal questions nor
included new and relevant evidence or contentions not previously considered.
On August 15, 2012 OWCP received appellant’s August 8, 2012 reconsideration request.
Appellant argued that he timely filed the claim. He stated that the date of injury was March 4,
1997, not January 1, 1994, and his immediate supervisors were reasonably put on notice of an
on-the-job injury. Appellant also argued that he was diagnosed with paranoia delusional disorder
from 1997 to 2008 and was incompetent. Evidence previously of record was resubmitted.
By nonmerit decision dated August 31, 2012, OWCP denied reconsideration of the prior
decision, finding that the reconsideration request neither raised substantive legal questions nor
included new and relevant evidence or contentions not previously considered.

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On June 20, 2013 OWCP received appellant’s June 20, 2013 reconsideration request.
Appellant continued to argue that the injury occurred in 1997 and that he qualified for tolling the
time for filing a claim provided by 5 U.S.C. § 8122 because of his psychiatric incompetence and
no representation. Evidence submitted included copies of 1997 to 1998 paperwork regarding
applying for benefits from OPM, MSPB paperwork from 2008, photocopies of pages from Title
5, copies of paperwork from 1997 regarding his request for documentation, copies of previously
received letters from him to his employing establishment, and medical records.
By decision dated June 27, 2013, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error.
On February 26, 2014 OWCP received appellant’s February 26, 2014 letter requesting
reconsideration. Appellant argued that it was inconsistent that the Secretary of the U.S.
Department of Labor approved his disability claim via The UnumProvident Settlement while
OWCP continued to deny his workers’ compensation claim. Two pages of frequently asked
questions about The UnumProvident Settlement were provided.
By decision dated April 1, 2014, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.6 OWCP regulations and procedures provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise, and explicit and must
4

20 C.F.R. § 10.607(a).

5

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d)
(October 2011). OWCP procedures further provide that 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 that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3(c).
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

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manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.13
ANALYSIS
In the last merit review of appellant’s case on September 17, 2009, he testified to
knowledge of his condition and its possible work relatedness at least by 1997, at the July 2008
hearing. As he did not file his claim until 2007, he was clearly outside the three-year limitation
period of 5 U.S.C. § 8122(b). Further, there was no evidence that appellant’s immediate
supervisor had knowledge of any injury within 30 days and that there were no exceptional
circumstances which would excuse his failure to comply with the applicable time limitation
provision.
Thus, 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.14 As appellant’s February 26,
2014 request for reconsideration was received by OWCP on February 26, 2014, more than one
year after the last merit decision of September 17, 2009, it was untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in denying his claim for compensation.15
Appellant argued that the denial of his claim was inconsistent as the Secretary of the
U.S. Department of Labor approved his disability claim via The UnumProvident Settlement
while OWCP continued to deny his workers’ compensation claim. In support of his contention,
two pages of frequently asked questions about The UnumProvident Settlement were provided.
The Board initially notes that there is no evidence that appellant’s disability claim was approved
under The UnumProvident Settlement. The evidence submitted, two pages of frequently asked
questions about The UnumProvident Settlement, is not evidence that appellant’s claim had been
approved and is informational in nature. Furthermore, even if appellant’s claim was approved
9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See Leona D. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Leon D. Faidley, Jr., supra note 5.

14

20 C.F.R. § 10.607(a).

15

See Robert F. Stone, 57 ECAB 292 (2005); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB
149 (2005).

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under The UnumProvident Settlement, this does not establish that he filed a timely claim for
FECA compensation, or that the employing establishment had timely notice of his injury. This
evidence and his argument is not relevant to the issue of whether he submitted his claim in a
timely manner and does not raise a substantial question as to the correctness of the last merit
decision. Therefore, appellant has not established clear evidence of error.
On appeal, appellant contends that the Federal Government placed barriers on his filing
for benefits, such as denying his request for information and denying his request for subpoena of
witnesses at his hearing. OWCP, however, previously considered these arguments in its prior
decisions. Furthermore, some of the arguments raised by appellant on appeal are outside the
jurisdiction of the Board.16 As noted, none of the evidence submitted on reconsideration raises a
substantial question concerning the correctness of OWCP’s decision.17
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits as his request was untimely filed and failed to establish clear evidence of
error.

16

To the extent that appellant asserts that he was denied due process by his employing establishment, the Board
notes that this argument would be related to a constitutional question. The Supreme Court has held that
constitutional questions are unsuited to resolution in administrative hearing procedures. See Johnson v. Robinson,
415 U.S. 361 (1974) and cases cited therein. See also Robert F. Stone, id.; Diana L. Smith, 56 ECAB 524 (2005).
17

A.S., Docket No. 11-356 (issued September 16, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the April 1, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, SHAW
AIR FORCE BASE, SC, Employer
__________________________________________

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

Docket No. 13-164
Issued: March 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2012 appellant filed a timely appeal of the September 7, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) which denied his claim for a
traumatic injury. He also appealed an October 3, 2012 decision of OWCP which denied merit
review. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty; and (2) whether OWCP properly denied
his request for reconsideration.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 26, 2012 appellant, then a 47-year-old high voltage electrician, filed a traumatic
injury claim alleging that on July 25, 2012 he slipped and fell, when loosening straps on a cherry
polar bucket cover injuring his tail bone. He stopped work on July 25, 2012 and returned to
work full-time limited duty on August 1, 2012.
Appellant submitted July 25, 2012 discharge instructions for contusion of the coccyx
from Tuomey Healthcare. Also submitted was a July 30, 2012 excuse slip from a physician’s
assistant who noted that appellant was treated and released to work on August 21, 2012.
On August 2, 2012 OWCP advised appellant of the type of evidence needed to establish
his claim. It particularly requested that he submit a physician’s reasoned opinion addressing the
relationship of his claimed condition and specific work factors.
On August 14, 2012 appellant was treated by Dr. Deborah L. Morris, a Board-certified
internist, for low back pain occurring after work injury on July 25, 2012. He reported working
on a bucket truck and falling landing on his coccyx and experiencing moderate low back pain.
Dr. Morris diagnosed back and neck pain and lumbago. She recommended physical therapy and
returned appellant to work with restrictions. In an August 28, 2012 report, Dr. Morris saw him
in follow-up for low back pain after the July 25, 2012 work injury. She diagnosed lumbago and
recommended continued physical therapy. Appellant submitted duty status reports from a
physician’s assistant dated August 14 and 28, 2012, who diagnosed low back pain and advised
that appellant could return to work part time with restrictions. Also submitted were discharge
instructions dated August 21, 2012 for back pain and neck pain from a nonspecific healthcare
provider who diagnosed lumbago.
In a decision dated September 7, 2012, OWCP denied appellant’s claim on the grounds
that the evidence submitted was insufficient to establish that a medical condition was diagnosed
in connection with the claimed event or work factors.
In a September 11, 2012 appeal request form, appellant requested reconsideration. In a
separate statement, he indicated that he slipped and fell on July 25, 2012 and was undergoing
medical treatment and physical therapy. Appellant submitted reports from Dr. Morris dated
August 14 and 28, 2012 and duty status reports from a physician’s assistant dated August 14 and
28, 2012, discharge instructions dated August 21, 2012 for back and neck pain, all previously of
record. Also submitted was an x-ray of the lumbosacral spine dated August 15, 2012 which
revealed disc disease. In a work status form dated August 15, 2012, prepared by a provider
whose signature is illegible, appellant was diagnosed with lumbago and returned to work with
restrictions. On August 23, 2012 he underwent physical therapy. On September 18, 2012
appellant was treated by Dr. Morris for low back pain from a July 25, 2012 work injury.
Dr. Morris referenced physical therapy notes which suggested his symptoms were exaggerated
which was hindering his improvement. She noted findings of numbness and radiation down the
leg, negative straight leg raises bilaterally with limited range of motion. Dr. Morris diagnosed
lumbago and referred appellant for pain management care. In a work status form dated
September 18, 2012, she diagnosed lumbago and returned appellant to work modified duty.
Appellant submitted a September 18, 2012 duty status form from a physician’s assistant who

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diagnosed lower lumbar pain and returned appellant to work modified duty. Similarly, a
September 18, 2012 work status form from a physician’s assistant diagnosed lumbago and
returned appellant to modified duty.
In a decision dated October 3, 2012, OWCP denied appellant’s reconsideration request on
the grounds that he neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
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. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.2
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.3 The second component of fact of
injury is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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 The weight of medical evidence is determined by its reliability, its probative

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

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value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
In the instant case, it is not disputed that appellant worked as a high voltage electrician
and that on July 25, 2012 he slipped and fell, when loosening straps on a cherry picker bucket
cover. However, he has not submitted sufficient medical evidence to establish that any
diagnosed medical conditions were causally related to the July 25, 2012 work incident. On
August 2, 2012 OWCP advised appellant of the type of medical evidence needed to establish his
claim. Appellant did not submit a rationalized medical report from a physician sufficiently
explaining how the July 25, 2012 incident caused or aggravated a diagnosed medical condition.
Appellant submitted an August 14, 2012 report from Dr. Morris, who treated him after a
work injury on July 25, 2012. He reported working on a bucket truck and falling landing on his
coccyx and experiencing moderate low back pain. Dr. Morris diagnosed back and neck pain and
lumbago and returned appellant to work with restrictions. Similarly, in an August 28, 2012
report, she saw him in follow-up for low back pain and diagnosed lumbago. However,
Dr. Morris’ reports are insufficient to establish the claim as she appears merely to be repeating
the history of injury as reported by appellant without providing her own opinion regarding
whether his condition was work related. To the extent that she is providing her own opinion,
Dr. Morris failed to provide a rationalized opinion regarding the causal relationship between
appellant’s condition and the factors of employment believed to have caused or contributed to
such condition.7
Appellant submitted a July 30, 2012 excuse slip and duty status reports dated August 14
and 28, 2012 from a physician’s assistant. However, this evidence is of no probative medical
value as the Board has held that physician’s assistants are not competent to render a medical
opinion under FECA.8 Appellant also submitted discharge instructions dated August 21, 2012
for back and neck pain prepared by a nonspecific health care provider who diagnosed lumbago.
However, there is no evidence that the document from the nonspecific healthcare provider is
from a physician. Likewise, medical documents not signed by a physician are not probative
medical evidence and do not establish appellant’s claim.9 Therefore, these reports are
insufficient to meet his burden of proof.

6

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Jimmie H. Duckett, supra note 6.

8

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
9

See id. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical
opinion, in general, can only be given by a qualified physician).

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The record contains no other medical evidence. Because appellant has not submitted
reasoned medical evidence explaining how and why neck and low back pain and lumbago is
employment related, he has not met his burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.10 Appellant failed to submit such evidence and OWCP,
therefore, properly denied his claim for compensation.
On appeal, appellant asserted that he submitted sufficient evidence to establish that he
sustained a work-related back injury. The Board notes that he failed to submit sufficient
evidence to establish that his neck and back pain and lumbago were causally related to the
accepted work-related incident.
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,11 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by the
(Office); or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”12
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
OWCP without review of the merits of the claim.13
10

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

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
OWCP’s most recent merit decision dated September 7, 2012 denied appellant’s claim
for compensation on the grounds that he failed to provide sufficient medical evidence to establish
that the diagnosed condition was causally related to established work duties. It denied
appellant’s reconsideration request, without a merit review and appellant appealed this decision
to the Board.
The issue presented is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his
reconsideration request, appellant did not show that OWCP erroneously applied or interpreted a
specific point of law. He did not identify a specific point of law or show that it was erroneously
applied or interpreted. Appellant did not advance a new and relevant legal argument.
Appellant asserted in his September 11, 2012 reconsideration request that he slipped and
fell on July 25, 2012 and was undergoing medical treatment and physical therapy. These
assertions do not show a legal error by OWCP or a new and relevant legal argument. It is not
disputed that appellant slipped and fell on July 25, 2012. The underlying issue in this case is
whether his diagnosed condition is causally related to the July 25, 2012 incident. That is a
medical issue which must be addressed by relevant medical evidence.14 A claimant may be
entitled to a merit review by submitting new and relevant evidence, but appellant did not submit
any new and relevant medical evidence in support of his claim.
Appellant submitted reports from Dr. Morris, dated August 14 and 28, 2012, duty status
reports from a physician’s assistant, dated August 14 and 28, 2012, and discharge instructions
dated August 21, 2012 for back and neck pain. However, these reports are duplicative of
evidence previously submitted and were considered by OWCP in its decision dated September 7,
2012 and found insufficient. Evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case.15 Therefore,
these reports are insufficient to require OWCP to reopen the claim for a merit review.
Appellant submitted a new September 18, 2012 report from Dr. Morris, who treated him
for low back pain after a July 25, 2012 work injury. Dr. Morris diagnosed lumbago and referred
him for pain management. In a work status form dated September 18, 2012, she diagnosed
lumbago and returned appellant to work modified duty. The Board notes that these reports are
similar to Dr. Morris’ prior August 14 and 28, 2012 reports which were previously considered by
OWCP in its September 7, 2012 decision. Therefore, this report is insufficient to require OWCP
to reopen the claim for a merit review.16
Appellant also provided an x-ray of the lumbosacral spine dated August 15, 2012 which
revealed disc disease. The Board notes that this report is not relevant because it does not address
14

See Bobbie F. Cowart, 55 ECAB 746 (2004).

15

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).
16

See id.

6

the particular issue involved, whether appellant’s diagnosed condition is causally related to his
work duties. Therefore, this new evidence is not relevant and is insufficient to warrant reopening
the case for a merit review.
Appellant submitted a September 18, 2012 duty status report and a work status form from
a physician’s assistant. Also submitted were physical therapy notes from August 23, 2012.
Additionally, an August 15, 2012 work status form from a provider whose signature is illegible
was provided. However, this evidence is of no probative medical value as the Board has held
that physician’s assistants and physical therapist are not competent to render a medical opinion
under FECA.17 The Board has also held that reports lacking proper identification do not
constitute probative medical evidence.18 Thus, this evidence is not relevant since the underlying
issue is medical in nature.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed conditions were causally related to his employment. The Board further finds that
OWCP properly denied his request for reconsideration.19

17

See supra notes 8 and 9.

18

C.B., Docket No. 09-2027 (issued May 12, 2010).

19

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the October 3 and September 7, 2012 Office of
Workers’ Compensation Programs’ decisions are affirmed.
Issued: March 28, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, OFFICE OF THE CHIEF,
Morrow, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1540
Issued: January 30, 2014

Case Submitted on the Record

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

On June 14, 2013 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) nonmerit decision dated January 17, 2013. The appeal was
docketed as No. 13-1540.
In a merit decision dated April 20, 2011, OWCP denied appellant’s traumatic injury claim.
By decision dated September 22, 2011, an OWCP hearing representative affirmed the April 20,
2011 decision. In a letter dated September 18, 2012, received by OWCP on September 24, 2012,
appellant requested reconsideration of the September 22, 2011 decision. By decision dated
January 17, 2013, OWCP denied her request for reconsideration without a merit review, finding
the request was untimely and that she had not established clear evidence of error. It stated in the
decision that appellant’s request was untimely because it was received more than one year after
the decision was issued; therefore, she was not entitled to a merit review of the September 22,
2011 decision.
The Board finds that OWCP improperly determined in this case that appellant failed to
file a timely application for review. In computing the time for requesting reconsideration, the
date of the event from which the designated period of time begins to run shall not be included
when computing the time period. However, the last day of the period so computed shall be

included unless it is a Saturday, a Sunday or a legal holiday.1 The time for requesting
reconsideration of OWCP’s September 22, 2011 decision began to run on September 23, 2011,
and thus would have expired on September 22, 2012, had this date not been a Saturday. The
next business day was Monday, September 24, 2012. As appellant’s request for reconsideration
was received on that date, it was timely. The case will thus be remanded to OWCP for
application of the standard for reviewing timely requests for reconsideration.2
Accordingly, the Board finds that appellant has filed a timely appeal of the September 22,
2011 merit decision. The case will be remanded for OWCP to further review her September 24,
2011 reconsideration request in accordance with its regulations and procedures.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 17, 2013 is set aside. The case is remanded to OWCP for
further proceedings consistent with this decision of the Board.

Issued: January 30, 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

1

Angel M. Lebron, Jr., 51 ECAB 488 (2000); John B. Montoya, 43 ECAB 1148 (1992).

2

See Debra McDavid, 57 ECAB 149 (2005).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Jamaica, NY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0249
Issued: June 22, 2017

Case Submitted on the Record

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

JURISDICTION
On November 14, 2016 appellant, through counsel, filed a timely appeal from a
September 16, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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 appellant met his burden of proof to establish additional lumbar
conditions as a consequence of the July 4, 2014 accepted employment injury.
On appeal counsel contends that OWCP denied compensation despite the facts of the
case.
FACTUAL HISTORY
On July 4, 2014 appellant, then a 59-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on that date he sustained a back injury as a
result of lifting oversized luggage off the floor onto a screening table at work.
In a July 4, 2014 hospital report, Dr. Jordana Haber, an emergency medicine specialist,
noted appellant’s chief complaint of back pain and a history of his medical, family, and social
background. She provided findings on examination and diagnosed backache.
In an August 4, 2014 prescription note, Dr. Diara S. Gross, a Board-certified physiatrist,
ordered a magnetic resonance imaging (MRI) scan to rule out a herniated nucleus pulposus. An
August 13, 2014 lumbar MRI scan report from Dr. Raymond Diamond, a Board-certified
radiologist, provided an impression of a T12-L1 posterior right-sided subligamentous disc
bulging, left facet hypertrophic change. His impression at L2-3 was posterior disc bulge, greater
on the left, with hypertrophic change. At L3-4, there was posterior broad-based disc bulging
extending centrally and to the right and left with right and left facet hypertrophic change with
trace left facet fluid. At L4-5 Dr. Diamond observed a posterior broad-based disc herniation
with flattening of the ventral thecal sac and extension into the right and left foramina with facet
hypertrophic change and foraminal narrowing, as well as a posterior broad-based disc herniation
with extension peripherally into the right and left foramina with facet hypertrophic change and
foraminal narrowing, abutment of the exiting L4 roots. At L5-S1, appellant had grade I to II
anterolisthesis posterior disc herniation extending to prominently narrowing the foramina with
impingement on the exiting L5 roots, suspected L5 spondylolysis, and facet hypertrophic
changes that were greater of the left.
Appellant also provided reports and progress notes beginning July 7, 2014 from
appellant’s physical therapists which detailed the findings of physical therapy sessions.
In a July 7, 2014 report, Dr. Stella Mansukhani, a physiatrist, noted that appellant
presented with chief complaints of low back pain and anxiety. She also noted a history of the
July 4, 2014 incident and appellant’s background. Dr. Mansukhani indicated that he had not
returned to work following the employment incident. She reported findings on physical and
musculoskeletal examination and assessed status post work-related injury on July 4, 2014,
lumbar spine sprain/strain, rule out herniated disc, and anxiety. Dr. Mansukhani related that, if
the above history was true and accurate as given by appellant, then there was a causal
relationship between his work-related injury on July 4, 2014 and his complaints.

2

By letter to appellant dated October 3, 2014, OWCP indicated that when appellant’s
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work, that the employing establishment did not controvert the claim, and that based on these
criteria, the payment of a limited amount of medical expenses was administratively approved.
However, the merits of the claim had not been formally considered. OWCP reopened appellant’s
claim because he had not returned to work in a full-time capacity. Appellant was afforded 30
days to submit evidence, including a physician’s opinion supported by a medical explanation as
to how the reported work incident caused or aggravated the claimed medical condition.
In discharge instructions dated July 4, 2014, Dr. Haber reiterated her diagnosis of
backache from her July 4, 2014 hospital report.
In disability certificates dated July 7 and August 6, 2014 and in an August 4, 2014 report
Dr. Mansukhani reiterated her diagnoses of lumbar sprain/strain, rule out herniated disc, and
status post work-related injury on July 4, 2014. She assessed clinically-improved anxiety.
Dr. Mansukhani advised that appellant was unable to work from July 7 to August 17, 2014, but
could return to work on August 18, 2014 with restrictions. On September 16, 2014 she reviewed
lumbar MRI scan results and provided examination findings. Dr. Mansukhani assessed lumbar
spine disc bulge and disc herniation. She indicated that appellant had returned to work with
restrictions.
On October 30, 2014 Dr. Demetrios Mikelis, a physiatrist, noted appellant’s complaint of
low back pain, a history of the July 4, 2014 incident, and a summary of his medical treatment.
He reported findings on musculoskeletal physical examination and reviewed the results of an
August 12, 2014 lumbar MRI scan. Dr. Mikelis diagnosed herniated lumbar intervertebral disc,
lumbar radiculopathy, and spondylolisthesis.
In narrative statements dated July 5 and September 3, 2014 and a memorandum dated
September 8, 2014, appellant noted that he had returned to work with restrictions on August 18,
2014, but his current work duties exceeded his restrictions.
By decision dated November 12, 2014, OWCP accepted that the July 4, 2014 incident
occurred as alleged, but it denied appellant’s claim finding that the medical evidence of record
did not establish that the diagnosed medical conditions were causally related to the accepted
employment incident.
By letter dated November 24, 2014, appellant, through counsel, requested a telephone
hearing with an OWCP hearing representative regarding the November 12, 2014 decision. The
hearing was held on June 3, 2015.
In a July 17, 2015 decision, OWCP’s hearing representative affirmed the November 12,
2014 decision, as modified, finding that the medical evidence of record was sufficient to
establish that appellant sustained a lumbar sprain due to the accepted July 4, 2014 employment
incident based on Dr. Mansukhani’s July 7, 2014 report. However, he found that the medical
evidence of record was not sufficiently rationalized to establish that the other diagnosed lumbar
conditions were causally related to the accepted work incident.

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In a December 10, 2014 report, received on October 20, 2015, Dr. Mansukhani advised
that there was a causal relationship between appellant’s low back pain and his July 4, 2014
employment incident.
On October 27, 2015 counsel requested reconsideration of the July 17, 2015 decision. He
submitted an appellate decision of the employing establishment (Office of Professional
Responsibility Appellate Board), dated August 5, 2015, which suspended appellant for 14 days
in lieu of his removal for acts unbecoming his job position, reinstated him as a transportation
security officer, and awarded him back pay, excluding the period for the suspension. Counsel
contended that the decision established that OWCP’s hearing representative’s decision was based
on incorrect information or information that was no longer valid.
In a letter dated November 2, 2015, OWCP advised appellant that, based on the July 17,
2015 decision, his claim was accepted for lumbar sprain.
In a November 11, 2015 interim note, Dr. Yolande Bernard, an emergency medicine
specialist and an associate of Dr. Mansukhani, noted a history of the July 4, 2014 employment
incident and appellant’s medical treatment. She indicated that he presented with a request for a
note to continue restricted work duty. Dr. Bernard denied his request since he had not been
treated for one year by her medical practice.
On December 17, 2015 Dr. David H. Delman, Board-certified in both emergency
medicine and internal medicine, reported appellant’s complaint of continued back pain which
radiated to his left leg with episodic numbness, tingling, pins and needles sensation, and
weakness. He also reported his vocational history and difficulties with activities of daily living
(ADLs). Dr. Delman provided findings on physical, musculoskeletal, and sensory examination.
He assessed status post work-related injury on July 4, 2014 and lumbar spine myofascial
derangement with multiple disc bulges and disc herniations, and possible L5 spondylolysis.
Dr. Delman advised that there was a direct causal relationship between appellant’s July 4, 2014
work-related injury and his complaints, injuries, and disabilities. He concluded that appellant
could continue performing limited-duty work.
In a January 7, 2016 report, Dr. Mikelis noted appellant’s complaint of ongoing back pain
radiating into his left lower extremity with numbness and tingling despite therapy. He provided
findings on musculoskeletal physical examination and reviewed the results of an August 12,
2014 lumbar MRI scan report. Dr. Mikelis reiterated the diagnoses of herniated lumbar
intervertebral disc, lumbar radiculopathy, and spondylolisthesis from his October 30, 2014
report, and noted appellant’s restrictions.
By letter dated May 4, 2016, counsel requested that the claim be expanded to include
herniated disc problems.
On July 27, 2016 Dr. Sebastian Lattuga, a Board-certified orthopedic surgeon, noted a
history of the accepted July 4, 2014 work incident and appellant’s back pain. He reported
findings on musculoskeletal examination, diagnosed herniated lumbar intervertebral disc, lumbar
radiculopathy, and spondylolisthesis, and listed appellant’s restrictions. In a letter dated July 27,
2016, Dr. Lattuga advised that appellant could return to limited-duty work with these restrictions.

4

By decision dated September 16, 2016, OWCP denied modification of the July 17, 2015
decision. It found that there was insufficient rationalized medical evidence to establish that
appellant’s diagnosed lumbar conditions were causally related to the accepted July 4, 2014
employment injury of lumbar sprain.
LEGAL PRECEDENT
Once the primary injury is causally connected with the employment, Larson notes that,
when the question is whether compensability should be extended to a subsequent injury or
aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of direct and natural results and of the claimant’s own
conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.3
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 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 employee.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 causal relationship.7
ANALYSIS
OWCP accepted that on July 4, 2014 appellant sustained an employment-related lumbar
sprain. By letter dated May 4, 2016, counsel requested that the claim be expanded to include
herniated disc conditions.

3

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); Melissa M. Frederickson,
50 ECAB 170 (1998).
4

Charles W. Downey, 54 ECAB 421 (2003).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

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

5

The Board finds that appellant has not met his burden of proof to establish other lumbar
conditions as a consequence of his accepted employment injury.
Dr. Mansukhani’s December 10, 2014 report found that there was a causal relationship
between appellant’s low back pain and the July 4, 2014 work injury. However, low back pain is
a symptom, not a specific medical diagnosis.8 Furthermore, Dr. Mansukhani’s opinion on causal
relationship is of limited probative value as it is not supported by rationale and is conclusory.9
He did not explain how appellant’s back condition, other than the accepted lumbar sprain, was
caused by the accepted July 4, 2014 employment injury. Dr. Mansukhani’s July 7 and August 6,
2014 disability certificates and August 4, 2014 report found that appellant had lumbar spine disc
bulge and disc herniation. He also found that appellant was disabled for work from July 7 to
August 17, 2014 and could return to limited-duty work with restrictions on August 18, 2014.
Dr. Mansukhani did not, however, offer an opinion stating that the diagnosed lumbar conditions
and resultant disability were a consequence of the accepted work injury. Medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.10 Additionally, the Board notes that appellant has not
filed a specific claim for compensation for disability as a result of his accepted lumbar sprain.
Dr. Delman’s December 17, 2015 report noted appellant’s complaints, listed findings,
and diagnosed an injury to the lumbar spine with myofascial derangement, multiple disc bulges
and disc herniations, and possible L5 spondylolysis. He opined that there was a direct causal
relationship between the July 4, 2014 work-related injury and appellant’s back pain complaints,
injuries, and disabilities. While Dr. Delman provided an opinion on causal relationship, it is of
limited probative value as he did not provide any rationale for his conclusory opinion.11
Dr. Haber’s July 4, 2014 hospital report and discharge instructions provided a diagnosis
of backache. However, he did not directly relate the diagnosed condition to the accepted July 4,
2014 employment injury, and thus his opinion is of diminished probative value and insufficient
to meet appellant’s burden of proof.12 Similarly, the reports from Drs. Diamond, Mikelis, and
Lattuga are of diminished probative medical value as none of these reports contained an opinion
on the causal relationship between the diagnosed lumbar conditions and the July 4, 2014
accepted lumbar sprain.13

8

See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

9

F.T., Docket No. 09-919 (issued December 7, 2009) (medical opinions not fortified by rationale are of
diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements
merely asserting causal relationship generally do not discharge a claimant’s burden of proof).
10

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
11

See cases supra note 9.

12

See cases supra note 10.

13

Id.

6

Neither Dr. Gross’ August 4, 2014 prescription for a lumbar MRI scan nor Dr. Bernard’s
November 11, 2015 note denying appellant’s request for a work restriction note provided a firm
diagnosis of a particular medical condition14 or an opinion on whether any diagnosed condition
was a consequence of the July 4, 2014 employment-related injury.15
Appellant submitted physical therapy reports and progress notes. However, the Board
has held that physical therapists are not considered physicians under FECA, and therefore, their
opinions do not constitute medical opinion evidence and have no weight or probative value on
medical matters.16
Appellant has the burden of proof to establish a claim for a consequential injury through
the submission of rationalized medical opinion evidence. He has not submitted evidence from a
physician who, based on an accurate factual history, found that he had additional lumbar
conditions as a consequence of his July 4, 2014 work injury and supports his or her opinion with
medical reasoning. Consequently, appellant has not met his burden of proof.
On appeal, counsel contends that OWCP denied compensation despite the facts of the
case. As found above, appellant did not submit sufficiently rationalized medical evidence to
establish that he sustained additional lumbar conditions that were caused, aggravated, or a
consequence of the accepted injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish
additional lumbar conditions as a consequence of the July 4, 2014 accepted employment injury.

14

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
15

See cases supra note 10.

16

5 U.S.C. § 8101(2); C.E., Docket No. 14-710 (issued August 11, 2014); Jane A. White, 34 ECAB 515 (1983).

7

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1733
Issued: December 20, 2013

Case Submitted on the Record

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

JURISDICTION
On July 16, 2013 appellant filed a timely appeal from the June 26, 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 OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation effective March 10, 2013 on the grounds that he refused an offer
of suitable work.
FACTUAL HISTORY
OWCP accepted that on July 30, 2001 appellant, then a 38-year-old carrier, sustained a
lumbar strain and herniated lumbar disc at L4-5 due to slipping down steps in the performance of

1

5 U.S.C. §§ 8101-8193.

duty. Appellant stopped work on August 1, 2001 and later began to receive disability
compensation on the periodic rolls.
In a February 26, 2004 report, Dr. Alan M. Crystal, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, stated that appellant did not have objective findings that
would prevent him from returning to his regular work as a carrier.
In a number of reports dated between 2004 and 2009, Dr. George V. DiGiacinto, an
attending Board-certified neurosurgeon, posited that appellant was totally disabled from all work
due to his accepted neck and back conditions.2 In an April 13, 2009 report, he indicated that his
finding that appellant was totally disabled was based on the fact that appellant could only walk a
block or two at a time while in pain the whole time.
In a December 6, 2010 work capacity evaluation form, Dr. DiGiacinto indicated that
appellant was permanently disabled from all work. He mentioned appellant’s cervical and
lumbar discs in support of this determination and also stated that appellant had “severe neck and
back pain.” In a December 14, 2011 form report, Dr. DiGiacinto indicated that appellant had
been totally disabled on a permanent basis since July 30, 2001 due to the C5-6 disc herniation he
sustained on that date.
Due to a lack of rationalized medical evidence regarding appellant’s ability to work,
OWCP referred appellant to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for an
examination and opinion on his ability to work.
In a May 23, 2012 report, Dr. Sultan discussed appellant’s medical history and reported
the findings of his examination. He noted that the accepted work conditions due to the July 30,
2001 work injury were still active and causing objective symptoms. Dr. Sultan stated that
appellant had low grade motion restriction in regard to the lumbar spine with nonradiating lower
back pain when tilting to the right. He indicated that appellant also had mild structural
thoracolumbar scoliosis, L4-5 disc herniation and preexisting multilevel lumbar degenerative
changes, but noted that his accepted conditions should not be expanded to include other medical
conditions as a result of the July 30, 2001 work injury. Dr. Sultan stated:
“There is an ongoing mild partial lower back disability secondary to the incident
of July 30, 2001. He is presently disabled as a mail carrier. It is now more than
10 years since the occurrence of July 30, 2001 and I do not anticipate that this
gentleman will return to his job as a mail carrier. He is able to return to work on a
part-time four [to] six hour-a-day basis with restrictions. These restrictions would
include lifting or carrying more than 10 [to] 15 pounds at a time using both hands
along with restrictions on bending, stooping, squatting or crawling. These
restrictions are permanent.”
OWCP requested clarification of Dr. Sultan’s report with respect to the recommended
work restrictions. In his supplemental report dated July 24, 2012, Dr. Sultan opined that

2

Dr. DiGiacinto indicated that appellant had pathologies at L4-5 and C5-6, but it should be noted that no cervical
disc condition has been accepted by OWCP.

2

appellant had an ongoing mild partial lower back disability secondary to the accident of July 31,
2001 and stated:
“[Appellant] demonstrated low grade motion restriction in regard to his lumbar
spine secondary to a disc herniation at the L4-5 level along with multilevel
preexisting lumbar spine degenerative changes. I was of the opinion that he may
resume part-time work activity four [to] six hours a day with restrictions on
pushing, pulling or lifting up to 15 pounds at a time along with avoiding any
squatting, kneeling or climbing so as not to trigger off disabling lower back
symptoms. The word ‘avoid’ means refraining from these activities all the time.”
In July 2012, appellant began to participate in an OWCP-sponsored vocational
rehabilitation program. Appellant’s efforts did not result in job placement.
On December 11, 2012 the employing establishment offered appellant a position as a
modified clerk for four hours per day based on the work limitations provided by Dr. Sultan. The
limited-duty job offer indicated that appellant would be required to stand intermittently, reach
and perform simple grasping and fine manipulation for up to four hours per day. The job offer
also indicated that appellant would not be required to twist, bend, stoop, squat, kneel, climb or
crawl. Appellant would not have to sit, walk or stand for more than six hours per day and he
would not be required to push, pull, or lift more than 15 pounds.
The modified clerk position was approved by appellant’s vocational rehabilitation
counselor. Appellant did not accept the modified clerk position offered by the employing
establishment.
In a December 31, 2012 letter, OWCP advised appellant of its determination that the
modified carrier position offered by the employing establishment was suitable. It informed
appellant that his entitlement to wage-loss and schedule award compensation would be
terminated if he did not accept the position or provide good cause for not doing so within 30 days
of the date of the letter.
On January 4, 2013 appellant refused the modified clerk position offered by the
employing establishment explaining that his retirement had been approved. He alleged that he
was unable to perform the physical duties of the job.
In a January 7, 2013 narrative report, Dr. DiGiacinto stated that appellant was seen in
follow up, but that there was no significant change in his condition. He indicated that appellant
continued to show marked limitations in range of motion in both the cervical and lumbar spine.
Appellant’s neurological examination was otherwise nonfocal and he had significant paraspinous
spasm in his neck and back. Dr. DiGiacinto stated that, given the duration of appellant’s
symptoms, he would be permanently totally disabled. In work capacity evaluation and attending
physician’s reports dated January 7, 2013, he indicated that appellant was totally disabled.
In a February 13, 2013 letter, OWCP advised appellant that his reasons for not accepting
the modified carrier position offered by the employing establishment were unjustified. It advised
him that his entitlement to wage-loss and schedule award compensation would be terminated if
he did not accept the position within 15 days of the date of the letter. Appellant did not accept
the modified clerk position.
3

In a March 5, 2013 decision, OWCP terminated appellant’s entitlement to wage-loss and
schedule award compensation effective March 10, 2013 on the grounds that he refused an offer
of suitable work.
In his reports dated April 1 and May 6, 2013, Dr. DiGiacinto continued to indicate that,
given the duration of appellant’s symptoms, he would be permanently totally disabled. He again
stated that appellant continued to show marked limitations in range of motion in both the cervical
and lumbar spine, that his neurological examination was otherwise nonfocal and that he had
significant paraspinous spasm in his neck and back.
By decision dated June 26, 2013, OWCP affirmed its March 5, 2013 decision terminating
appellant’s entitlement to wage-loss and schedule award compensation effective March 10, 2013.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”3 However, to justify such termination, OWCP must show that the work offered
was suitable.4 An employee who refuses or neglects to work after suitable work has been offered
to him has the burden of showing that such refusal to work was justified.5
ANALYSIS
OWCP accepted that on July 30, 2001 appellant sustained a lumbar strain and herniated
lumbar disc at L4-5 due to slipping down steps while handling a mail cart. Appellant stopped
work on August 1, 2001 and later began to receive disability compensation on the periodic rolls.
OWCP terminated appellant’s entitlement to wage-loss and schedule award compensation
effective March 10, 2013 on the grounds that he refused an offer of suitable work.
The evidence of record shows that appellant is capable of performing the modified clerk
position offered by the employing establishment and determined to be suitable by OWCP in
December 2012. The job offer required appellant to stand intermittently, reach and perform
simple grasping and fine manipulation for up to four hours per day. The job offer also indicated
that appellant would not be required to twist, bend, stoop, squat, kneel, climb or crawl.
Appellant would not have to sit, walk or stand for more than six hours per day and he would not
be required to push, pull or lift more than 15 pounds. The record does not reveal that the
modified clerk position was temporary or seasonal in nature.6

3

5 U.S.C. § 8106(c)(2).

4

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

5

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

6

See Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4b (July 1997).

4

The modified clerk position was approved by appellant’s vocational rehabilitation
counselor and OWCP properly relied on the opinion of appellant’s counselor in determining that
appellant is vocationally and educationally capable of performing the position.7
The Board finds that, in determining that appellant is physically capable of performing
the position, OWCP properly relied on the opinion of Dr. Sultan, a Board-certified orthopedic
surgeon who served as an OWCP referral physician. In a report dated May 23, 2012 and a
supplemental report of July 24, 2012, Dr. Sultan stated that appellant could resume part-time
work activity for four to six hours a day with restrictions on pushing, pulling or lifting up to 15
pounds at a time along with no engaging in squatting, stooping, bending, kneeling, climbing or
crawling. In his reports, Dr. Sultan extensively described appellant’s medical history and
reported the findings of his comprehensive examination of appellant. The Board finds that the
work restrictions provided by Dr. Sultan would allow appellant to perform the duties of the
modified clerk position offered by the employing establishment.
The Board notes that, therefore, OWCP has established that the modified clerk position
offered by the employing establishment is suitable. As noted above, once OWCP has established
that a particular position is suitable, an employee who refuses or neglects to work after suitable
work has been offered to him has the burden of showing that such refusal to work was justified.
The Board has carefully reviewed the evidence and argument submitted by appellant in support
of his refusal of the modified clerk position and notes that it is not sufficient to justify his refusal
of the position.
Appellant submitted several reports in which Dr. DiGiacinto, an attending Board-certified
neurosurgeon, indicated that he had been totally and permanently disabled since July 30, 2001
due to the effects of the July 30, 2001 injury. For example, in reports dated January 7, April 1
and May 6, 2013, Dr. DiGiacinto indicated that, given the duration of appellant’s symptoms, he
would be permanently totally disabled. He stated that appellant continued to show marked
limitations in range of motion in both the cervical and lumbar spine, that his neurological
examination was otherwise nonfocal and that he had significant paraspinous spasm in his neck
and back. These reports, as well as a brief form report dated January 7, 2013, are of limited
probative value because they do not contain sufficient medical rationale supporting their
opinions on total disability. Dr. DiGiacinto indicated that appellant had limited cervical and
lumbar spine motion, but he provided no specific findings of the extent of such limited motion.
He stated that appellant had paraspinous spasm in his neck and back, but did not describe the
course of these symptoms or explain how appellant’s medical condition would render him totally
disabled for more than 10 years.8
On appeal, appellant contends that he could not work as a modified clerk because he is
still sick. However, appellant’s own opinion on his ability to work would not be a substitute for
probative medical evidence. The Board notes that OWCP complied with its procedural
requirements prior to terminating appellant’s compensation, including providing appellant with

7

See Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8d (December 1993).
8

Appellant indicated that he could not work as a modified clerk because he was planning on retiring, but he did
not show that this was a valid reason for refusing the job.

5

an opportunity to accept the offered position after informing him that his reasons for initially
refusing the position were not valid.9
For these reasons, OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation effective March 10, 2013 on the grounds that he refused an offer
of suitable work.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation effective March 10, 2013 on the grounds that he refused an offer
of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9

See generally Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

6