United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, BULK MAIL
)
CENTER, Dallas, TX, Employer
)
___________________________________________ )
P.C., Appellant

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

Docket No. 06-1954
Issued: March 6, 2007

Case Submitted on the Record

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

JURISDICTION
On August 22, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 16, 2006, which denied modification of the
Office’s May 9, 2005 decision. She also filed a timely appeal of an Office decision dated
August 9, 2006 denying her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that
modification of the wage-earning capacity determination was warranted; and (2) whether the
Office properly refused to reopen appellant’s case for further review of the merits pursuant to
5 U.S.C. § 8128(a).

FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a January 24, 2005
decision, the Board set aside and remanded the Office’s February 13, 2004 decision. The Board
found that appellant’s claim for compensation raised the issue of whether a modification of the
December 13, 2002 wage-earning capacity decision was warranted. The facts and the history
contained in the prior appeal are incorporated by reference. The facts and the history germane to
the present issue have been reiterated.
Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon, in reports dated January 23,
2003, advised that appellant was unable to work from January 18 to 23, 2003 but could return on
January 24, 2003. He prescribed restrictions that included avoiding overhead activity and above
the shoulder activity. Dr. Ogunro also advised that appellant had shooting pains in the elbow and
was dropping things. He diagnosed carpal tunnel syndrome, cubital tunnel syndrome bilaterally,
status post release and indicated that appellant appeared to have tendinitis in the right shoulder.
In a January 28, 2003 report, Dr. Ogunro advised that appellant was performing modified duty.
He submitted additional disability certificates dated March 6, 7 and 27, 2003, which indicated
that appellant was unable to work and needed retraining. On April 25, 2003 Dr. Ogunro noted
appellant’s symptoms and opined that appellant’s shoulder pain evolved from her bilateral arm
tendinitis, which evolved into carpal tunnel syndrome and cubital tunnel syndrome bilaterally.
He attributed appellant’s findings of tendinitis in the elbow and shoulders to her employment and
advised reassigning appellant. On June 4, 2003 Dr. Ogunro opined that appellant was taken off
work because she was unable to perform her modified duties. He continued to support that
appellant could not perform her modified duties in reports dated June 4 and August 27, 2003.
However, on October 22, 2003, Dr. Ogunro advised that appellant had a normal examination and
could return to work.
In a November 6, 2003 fitness-for-duty report, Dr. Arthur L. Sarris, a Board-certified
orthopedic surgeon, opined that there was no reason why appellant could not return to her
modified duties.
In a November 26, 2003 report, Dr. Ogunro diagnosed tendinitis of both shoulders and
indicated that appellant was not at work because of “confusion” over requirements. He
recommended a second opinion examination.
Following the Board’s remand, the Office, in a decision dated May 9, 2005, denied
modification of appellant’s December 13, 2002 wage-earning capacity decision. The Office
determined that the medical evidence was not sufficient to establish that the accepted conditions
had changed and that the evidence of file was not sufficient to establish that the original loss of
wage-earning capacity decision was in error.

1

Docket No. 04-1487 (issued January 24, 2005).

2

On May 3, 2006 appellant requested reconsideration and submitted additional evidence.2
The additional evidence included a Form CA-7 claim for compensation for the period May 1 to
10, 2006, a copy of her offer of limited duty dated March 3, 2006, which appellant rejected and a
March 7, 2006 offer of limited duty which she accepted. She submitted medical reports dating
from January 26, 2005 to April 15, 2006 from Dr. Ogunro. On August 15, 2005 Dr. Ogunro
noted that appellant presented for an impairment rating and that she had complaints of occasional
numbness in the hands with activity. He conducted an examination and noted that it revealed
negative Tinel’s sign over the transverse carpal ligament and negative Tinel’s sign over the
cubital tunnel. Dr. Ogunro determined that the Phalanx test and elbow flexion tests were
negative and recommended that appellant continue with her present work capacity.
In an October 25, 2005 duty status report, Dr. Ogunro advised that appellant could not
perform regular duty; however, he prescribed light-duty restrictions for eight hours per day that
included no lifting over two pounds and keyboarding for only two hours.
In a report dated February 2, 2006, Dr. Ogunro noted that appellant presented for a
“follow-up evaluation of bilateral hand numbness and swelling and right index that feels
jammed. These symptoms reoccurred (sic) since she resumed work last October 2005.”
Dr. Ogunro diagnosed bilateral carpal tunnel syndrome and bilateral endoscopic release and
recommended that appellant continue using Ibuprofen and splinting, especially at night.
In reports dated February 28, 2006, Dr. Ogunro noted that appellant may continue using
“Ibuprofen and splinting which seems to be helping with symptoms.” He noted that appellant’s
work hours were temporarily reduced for one month from eight hours a day to six hours a day for
five days a week to alleviate her symptoms.
In reports dated March 9 and 28, 2006, Dr. Ogunro opined that appellant was unable to
return to work and that she should continue on her current restrictions and minimize overhead
motions. On April 12, 2006 he diagnosed bilateral carpal tunnel syndrome and bilateral carpal
tunnel release and opined that appellant could return to limited duty for eight hours a day with
“noted restrictions.” In an April 21, 2006 duty status report, Dr. Ogunro restricted appellant to
intermittent lifting and twisting of no more than two pounds and keyboarding for no more than
two hours per day.
An April 26, 2006 magnetic resonance imaging (MRI) scan of the right shoulder, read by
Dr. Timothy Ponder, a Board-certified diagnostic radiologist, revealed a normal right shoulder.
By decision dated June 16, 2006, the Office denied modification of the May 9, 2005
decision.

2

On June 10, 2005 appellant requested a hearing. By decision dated June 27, 2005, the Office denied appellant’s
request for an oral hearing on the grounds that the request was untimely. The Board does not have jurisdiction over
the June 27, 2005 decision as it was issued more than one year prior to the filing of the present appeal. See
20 C.F.R. § 501.3(d).

3

By letter dated July 22, 2006, appellant requested reconsideration. She alleged that the
medical evidence clearly established that her on-the-job injury caused her to develop tendinitis in
her right shoulder. Appellant noted that she was including a copy of a report from Dr. Ogunro
which showed that she was taken off work to allow her shoulders to rest. However, no report
accompanied her request.
By decision dated August 9, 2006, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that her request neither raised
substantial legal questions nor included new and relevant evidence and, thus, it was insufficient
to warrant review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that actual earnings in employment
or earnings in a selected position, represents a claimant’s ability to earn wages. Compensation
payments are based on the wage-earning capacity determination and it remains undisturbed until
properly modified.3
The Office’s procedure manual provides that, “[i]f a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance the CE [claims examiner] will
need to evaluate the request according to the customary criteria for modifying a formal loss of
wage-earning capacity.”4
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.5 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.6
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a recurrence on January 22, 2003 while replacing
labels on containers, as her shoulder started hurting.7 As noted, the Board found that appellant’s
recurrence of disability claim raised the issue of whether her December 13, 2002 wage-earning
capacity decision should be modified. The Board finds that the evidence does not establish that
3

See Sharon C. Clement, 55 ECAB 552 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
5

Sue A. Sedgwick, 45 ECAB 211 (1993).

6

Id.

7

Appellant alleged that commencing on February 12, 2003, her job was no longer available, and that her
condition had worsened. However, in a March 6, 2003 memorandum, the employing establishment confirmed that
the work provided to appellant was within her restrictions and that she refused to return to the position.

4

the Office’s December 13, 2002 wage-earning capacity determination was, in fact, erroneous nor
does the evidence show that appellant’s wage-earning capacity determination should be modified
because she has been retrained or otherwise vocationally rehabilitated.
On December 13, 2002 the Office found that appellant’s actual earnings in her limitedduty position as a bulk mail distributor, with weekly earnings of $867.32, fairly and reasonably
represented her wage-earning capacity effective August 15, 2001. In determining that the
position was medically suitable, the Office found that appellant had demonstrated the ability to
perform the job for two months or more and the position was considered suitable to her partially
disabled condition. Appellant has not submitted any evidence to establish that the Office’s
original determination was erroneous.
With regard to whether appellant established a material change in her injury-related
condition, she submitted numerous medical reports. However, the medical evidence is
insufficient to establish a material change in the nature and extent of her injury-related condition.
Dr. Ogunro did not provide an opinion that appellant’s injury-related condition had materially
worsened such that she was unable to perform the duties of her limited-duty job. On January 23,
2003 Dr. Ogunro provided findings upon examination and recommended that appellant avoid
overhead activity; however, he did not opine that appellant’s injury-related condition had
materially worsened such that she could no longer perform the duties of her limited-duty position
as a bulk mail distributor. On January 28, 2003 Dr. Ogunro indicated that appellant could
perform modified duty. In a March 6, 2003 report, Dr. Ogunro stated that appellant was unable
to work but did not explain why she could not work. His report did not address any material
worsening in appellant’s work-related conditions. In subsequent disability slips, Dr. Ogunro did
not address whether appellant had experienced any material worsening in her work-related
conditions.
On April 25, 2003 Dr. Ogunro noted that appellant should be retrained into another type
of work. As noted, he did not explain why appellant could not perform her limited-duty position
or how her disability due to a material change of her condition was employment related. In a
June 4, 2003 report, Dr. Ogunro opined that appellant could not perform her modified job but did
not provide any rationale to support his opinion. He did not advise that there was a material
worsening in the work-related conditions. On October 22, 2003 Dr. Ogunro recommended that
appellant return to her “normal activities.” He repeated his opinion that appellant continue in her
present capacity in his August 15, 2005 report. In reports dated November 26, 2004 through
January 26, 2005, Dr. Ogunro did not address her ability to work. In reports dated December 10,
2003 and October 25, 2005, he opined that appellant could not do regular duty and prescribed
light-duty restrictions. However, Dr. Ogunro did not explain why appellant could not perform
the duties of the bulk mail distributor position that was determined to be medically suitable for
appellant. He did not advise that her condition had materially worsened such that she could not
perform this position.
In reports dated February 2 and 28, 2006, Dr. Ogunro noted that appellant had bilateral
hand numbness and swelling and a jammed right index. He advised that these symptoms
recurred since she resumed work in October 2005. Dr. Ogunro diagnosed bilateral carpal tunnel
syndrome and bilateral endoscopic release. As noted, he did not provide any opinion that
appellant’s condition had materially worsened such that she could no longer perform the limited-

5

duty position. In reports dated March 9 and 28, 2006, Dr. Ogunro opined that appellant was
unable to work but that she should continue on her current restrictions and minimize overhead
motions. However, he did not provide any findings on examination or explain how her injuryrelated condition had materially worsened such that she could no longer perform the limited-duty
position. On April 12, 2006 Dr. Ogunro opined that appellant could return to limited duty for
eight hours a day with “noted restrictions.” He completed a duty status report on April 21, 2006
which included restrictions of intermittent lifting and twisting of no more than two pounds and
keyboarding for no more than two hours per day. Dr. Ogunro’s report did not provide any
opinion that appellant could not perform the limited-duty position which was the basis of the loss
of wage-earning capacity decision.
The medical evidence submitted by appellant does not adequately explain that she had a
material worsening of her injury-related condition. Consequently, the medical evidence is
insufficient to establish that appellant was unable to perform the duties of the limited-duty job
that provided the basis for the December 13, 2002 loss of wage-earning capacity decision.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Federal Employees’ Compensation Act,8 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”9
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.10
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on July 22, 2006. The underlying issue on
reconsideration was whether she met her burden of proof to establish that modification of the
wage-earning capacity decision was warranted. However, appellant did not provide any relevant
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b).

10

20 C.F.R. § 10.608(b).

6

or pertinent new evidence to the issue of whether modification of the wage-earning capacity
decision was warranted.
In her July 22, 2006 request for reconsideration, appellant alleged that her on-the-job
injury caused her to develop tendinitis in her right shoulder and that she was including a report
from her physician to show that she was taken off work due to her shoulder condition. However,
no report accompanied her request. As the issue of whether appellant had a material worsening
of an injury-related condition is medical in nature, her arguments are not relevant. The
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case.11
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion, noted above, for reopening a claim for merit review. Furthermore, appellant also
has not shown that the Office erroneously applied or interpreted a specific point of law, or
advanced a relevant new argument not previously submitted. Therefore, the Office properly
denied her request for reconsideration.
CONCLUSION
The Board finds that the evidence is insufficient to warrant modification of the
December 13, 2002 wage-earning capacity decision. The Board also finds that the Office
properly refused to reopen appellant’s case for further review of the merits of her claim under
5 U.S.C. § 8128(a).

11

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

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 9 and June 16, 2006 are affirmed.
Issued: March 6, 2007
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, BUSTLETON
STATION, Philadelphia, PA, Employer
__________________________________________
Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 18-1760
Issued: November 25, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 21, 2018 appellant, through counsel, filed a timely appeal from an April 27,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of
the Appellate Boards docketed the appeal as No. 18-1760.
On April 15, 2002 appellant, then a 41-year old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that he tripped and twisted his left knee while in the performance of duty.

1

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

The Board notes that following the April 27, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

By decision dated July 29, 2002, OWCP accepted appellant’s claim for a left knee sprain. On
November 3, 2003 appellant underwent nonwork-related left knee surgery.
On September 3, 2011 he returned to part-time, limited-duty work as a modified city letter
carrier working three hours per day. In a letter dated November 28, 2011, appellant advised
OWCP that he could no longer perform the modified, limited-duty position and had been out of
work since September 27, 2011. Subsequently, appellant filed a claim for compensation (Form
CA-7) for the periods October 8, 2011 to February 27, 2012 and January 12, 2013 and continuing.
By decisions from January 31, 2013 through April 27, 2018, OWCP denied appellant’s claim for
wage-loss compensation.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,3 the Board held that when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
On November 20, 2017, prior to the issuance of OWCP’s April 27, 2018 decision,
appellant submitted a medical report dated October 25, 2017 from Dr. Walter W. Dearolf, III, a
Board-certified orthopedic surgeon. In his report, Dr. Dearolf noted that appellant reported having
more difficulty with his left knee and had been experiencing episodes with his knee buckling. He
opined that appellant was limited to performing sedentary or light-duty work and was restricted
from delivering mail.
In its April 27, 2018 decision, OWCP’s hearing representative affirmed the September 29,
2017 decision finding that the medical evidence of record failed to establish appellant’s claim for
compensation for the periods October 8, 2011 to February 27, 2012, and January 12, 2013 and
continuing. He found that the weight of the evidence rested with Dr. Menachem Mueller, a Boardcertified orthopedic surgeon and OWCP’s impartial medical examiner, who opined that the
modified city letter carrier position was appropriate for the period October 8, 2011 to February 27,
2012 and that there was no basis for any limitations on or after January 12, 2013.
The Board finds that in the April 27, 2018 decision, the hearing representative did not
reference or consider the October 25, 2017 report from Dr. Dearolf despite having received it prior
to the issuance of his decision. As the hearing representative did consider the relevant medical
report from Dr. Dearolf, OWCP failed to follow its own procedures by properly discussing the
relevant medical reports of record.4

3

41 ECAB 548 (1990). See also R.D., Docket No.17-1818 (issued April 3, 2018).

4

All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).

2

As the Board’s decisions are final with regard to the subject matter appealed,5 it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision.6 As
OWCP’s hearing representative did not review the above-noted evidence in the April 27, 2018
decision, the Board finds that this case is not in posture for decision.7 On remand, OWCP shall
review all evidence of record and, following any further development as it deems necessary, it
shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the April 27, 2018 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: November 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

20 C.F.R. § 501.6(d).

6

See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 2.

7

See V.C., Docket No. 16-0694 (issued August 19, 2016).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1165
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, 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 over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of
Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before
OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first
time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for
the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

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

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

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

8

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

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

5

Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1789
Issued: June 10, 2010

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 July 8, 2009 appellant filed a timely appeal of a February 17, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim for an increased schedule award
and an April 28, 2009 decision denying his request for reconsideration without a merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has more than two percent permanent impairment
of the left lower extremity for which he received a schedule award; and (2) whether the Office
properly denied appellant’s request for reconsideration without a merit review.
FACTUAL HISTORY
On January 14, 2004 appellant, then a 35-year-old letter carrier, injured his low back and
left leg after slipping on ice while delivering mail. He stopped work on January 15, 2004 and

returned to part-time light duty on March 1, 2004. The Office accepted appellant’s claim for
lumbar strain.
In reports dated January 26 and February 9, 2004, Dr. Robert Brown, Board-certified in
family medicine, diagnosed lower back strain, sciatica and herniated L5-S1 disc.
In reports dated February 10 and 24, 2004, Dr. S. Marshall Cushman, a Board-certified
neurosurgeon, diagnosed herniated discs at L4 and L5 with radiculopathy. He also noted pain in
appellant’s lower back shooting down his leg and left foot numbness. Dr. Cushman
recommended surgery. On March 12 and April 2, 2004 he noted resolving symptomology
regarding appellant’s herniated lumbar discs. Dr. Cushman found that appellant’s gait, muscle
strength and back mobility were normal. In a June 25, 2004 treatment note, a nurse indicated
that appellant had left S1 radiculopathy, secondary to left lateral disc herniation at L5 and S1 and
recommended left L5 microsurgical discectomy. On a July 12, 2004 an Office medical adviser
stated that appellant’s lumbar condition was temporally related to his work injury and he
recommended L5-S1 discectomy.
On July 16, 2008 appellant underwent a repeat discectomy at L5-S1 for a recurrent
herniated disc. Dr. James Hollowell, a Board-certified neurosurgeon, performed the surgery
using a microsurgical technique. The Office authorized the surgery.1
On September 10, 2008 appellant filed a schedule award claim.
In September 30, 2008 letters, the Office advised appellant and Dr. Hollowell of the
medical evidence needed to establish a schedule award claim. It requested that he provide an
opinion on permanent impairment pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
In a September 10, 2008 report, Dr. Hollowell, a Board-certified neurosurgeon,
determined that appellant had reached maximum medical improvement that day. He noted that
appellant’s S1 nerve root had been affected. Dr. Hollowell also noted low back pain with no
atrophy or weakness as well as decreased sensation at the sole of the foot. He found six percent
permanent impairment.
On November 15, 2008 an Office medical adviser reviewed Dr. Hollowell’s report and
noted that the claim was not ready for an impairment determination as there was an insufficient
description of clinical findings as to appellant’s impairment. The medical adviser stated that
additional information was needed in order to note impairment under the A.M.A., Guides.
On December 10, 2008 the Office advised appellant that the medical evidence was
insufficient to support a schedule award. It requested that he obtain another report from his
physician.

1

Appellant reinjured his herniated disc condition in February 2008. The Office adjudicated this under claim File
No. xxxxxx017 and accepted the claim for aggravated herniated disc at L5-S1. On June 8, 2008 it combined the two
claims.

2

In a December 17, 2008 report, a physician’s assistant in Dr. Hollowell’s office found
normal causal gait and full motor strength. She noted that appellant could not elicit a left
Achilles jerk. The physician’s assistant also noted that the postoperative symptoms were largely
consistent with decompression of the S1 root but that dermatomes were not exact and there could
be overlapping sensory changes. She found no atrophy or complaint of low back pain. The
physician’s assistant also found loss of ankle reflex and residual numbness involving the plantar
aspect of the left foot consistent with prior surgery and S1 root compression. She determined
that, based on state guidelines, appellant had five percent impairment for repeat surgery and one
percent impairment for residual sensory loss.
In a report dated February 4, 2009, the Office medical adviser reviewed the
December 17, 2008 report and disagreed with the impairment finding. The medical adviser
found that examination noted decreased sensation on the plantar aspect of the left foot in the S1
distribution without evidence of any weakness or loss of motion. The description of impairment
was not based on the A.M.A., Guides and the Federal Employees’ Compensation Act did not
award impairment to the spine or back. The Office medical adviser determined that appellant
had two percent left lower extremity permanent for sensory loss pursuant to the A.M.A., Guides.
He noted that the S1 nerve root was affected, for which a five percent maximum impairment for
sensory loss was allowed under Table 15-18. The Office medical adviser found that appellant
had a Grade 3, 40 percent, sensory deficit under Table 15-15. He multiplied the 40 percent
deficit by the 5 percent maximum impairment value for the S1 nerve root to total at 2 percent
sensory impairment of the leg.2 The Office medical adviser determined that appellant reached
maximum medical improvement on December 17, 2008.
In a February 17, 2009 decision, the Office granted appellant a schedule award for two
percent impairment for the left lower extremity. It paid him compensation for 5.76 weeks from
December 17, 2008 to January 26, 2009.
On March 11, 2009 appellant requested reconsideration. He submitted an article on
schedule awards and a guide on how to evaluate disability under Wisconsin workers’
compensation law. Appellant also submitted a March 31, 2009 report from Dr. Hollowell
containing diagnostic test results of his blood and urine.
In a decision dated April 28, 2009, the Office denied appellant’s reconsideration request
without further merit review finding that the evidence submitted did not address the issue of his
impairment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act3 and its implementing regulations 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. The Act, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
2

A.M.A., Guides 424 (5th ed. 2001).

3

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

3

used in making such determination is a matter which rests in the sounds discretion of the Office.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set
of tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by the Office for evaluating schedule losses and the Board has concurred in
such adoption.4
Neither, the Act nor Office regulations provide for a schedule award for loss of use of the
back or to the body as a whole. The schedule award provisions of the Act include the extremities
and a claimant may be entitled to a schedule award for permanent impairment to a lower
extremity even though the cause of such impairment originates in the spine.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar strain, an aggravated herniated disc
at L5-S1 and authorized two surgical discectomies. Appellant subsequently received a schedule
award for two percent permanent impairment of the left leg based on the evaluation by an Office
medical adviser of reports from Dr. Hollowell and a physician’s assistant from the physician’s
office. The Board finds that the Office medical adviser properly determined appellant’s
impairment rating.
In a September 10, 2008 report, Dr. Hollowell found six percent impairment of
appellant’s left leg. He noted that appellant’s S1 nerve root had been affected which caused low
back pain with no atrophy or weakness. Dr. Hollowell noted decreased sensation to the sole of
appellant’s left foot. However, he did not address how he applied the A.M.A., Guides to rate six
percent impairment. Dr. Hollowell did not cite to any of the tables or figures used in rating
appellant’s impairment. As he failed to provide an adequate explanation of how he made rated
impairment under the A.M.A., Guides, his opinion is of reduced probative value.6
After the Office requested additional information, appellant submitted a December 17,
2008 report from a physician’s assistant from Dr. Hollowell’s office. The physician’s assistant
noted examination findings and determined that, based on state guidelines, appellant had five
percent impairment for repeat surgery and one percent impairment for residual sensory loss. The
Board has noted that a physician’s assistant is not a physician as defined under the statute.
Therefore, a report from such individual does not constitute competent medical evidence unless
it is reviewed by a qualified physician.7 The opinion of the physician’s assistant on appellant’s
permanent impairment does not constitute competent medical evidence, as there is no evidence
Dr. Hollowell reviewed the report and approved the findings.
4

See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

5

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008).

6

See Tommy R. Martin, 56 ECAB 273 (2005) (where the Board found that a physician’s impairment calculation
not sufficiently supported by the A.M.A., Guides is of diminished probative value).
7

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 the Act). George H. Clark, 56 ECAB 162 (2004).
See also 5 U.S.C. § 8101(2).

4

On February 4, 2008 the Office medical adviser reviewed the medical evidence of record
to rate appellant’s permanent impairment.8 He disagreed that appellant had six percent
impairment as this estimate was not based on the A.M.A., Guides. The medical adviser found
that appellant had two percent impairment to the left leg. Based on findings of decreased
sensation in the left foot in the S1 nerve root distribution, he referenced Table 15-18 on page 424
of the A.M.A., Guides which provides a five percent maximum impairment value for S1 sensory
loss. Under Table 15-15 on page 424 of the A.M.A., Guides, the Office medical adviser
determined that appellant had a Grade 3 sensory deficit of 40 percent. In accordance with the
procedure outlined in Table 15-15(b) on page 424 of the A.M.A., Guides, he properly multiplied
the 40 percent deficit by the 5 percent maximum impairment value for S1 sensory loss to total
2 percent impairment of the left lower extremity. The Office medical adviser did not note any
other basis on which to rate additional impairment. The Board finds that the Office medical
adviser applied the A.M.A., Guides and properly evaluated appellant’s impairment.9 There is no
medical evidence, consistent with the A.M.A., Guides, to establish that appellant has more than
two percent impairment of the left leg.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.10 Section 10.608(b) of Office
regulations provide that, when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 2
Appellant’s reconsideration request did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law. Additionally, he did not advance a
relevant legal argument not previously considered by the Office.
Appellant submitted an article on schedule awards and a guide on how to evaluate
disability under Wisconsin workers’ compensation law. The Board notes that the underlying
8

While the physician’s assistant cannot render a medical opinion, a nonphysician may provide findings that a
physician, such as an Office medical adviser, may use if that physician determines that such findings are accurate.
See Jerre A. Rinehart, 45 ECAB 518, 521 (1994) (measurements by an occupational therapist may be used by in
rating impairment if deemed accurate by appellant’s physician or an Office medical adviser); Joshua A. Holmes,
42 ECAB 231, 236 (1990) (an Office medical adviser may review any audiogram in a case record if deemed
accurate).
9

J.Q., supra note 5 (when the examining physician does not provide an estimate of impairment conforming to the
A.M.A., Guides, the Office may rely on the impairment rating provided by an Office medical adviser).
10

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

11

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

5

issue concerns appellant’s claim for permanent impairment due to his federal employment. The
Office, as noted, evaluates impairment with reference to the A.M.A., Guides. The evidence does
not pertain to the standards adopted by the Office for evaluating permanent impairment.12 For
this reason, it did not warrant further review.
The March 31, 2009 diagnostic report from Dr. Hollowell is not relevant to the issue as it
does not address permanent impairment of the left leg but only listed test results. Evidence that
is not relevant to the particular issue involved does not warrant a reopening of a case for merit
review.13
On appeal, appellant asserts that the Office did not address the fact that he had back
surgery from which his foot numbness derived. He further asserts that the Office determined two
percent impairment for his foot only and ignored impairment of his back. As noted, the
impairment schedule does not list the back or spine as a member of the body under the Act, for
which schedule award compensation is allowed.14 The Office considered the medical evidence
and properly determined that appellant’s accepted back condition resulted in two percent
impairment of his left leg.
CONCLUSION
The Board finds that appellant does not have greater than two percent permanent
impairment of the left lower extremity for which he received a schedule award. The Board also
finds that the Office properly denied appellant’s reconsideration request without a merit review.

12

See supra note 4. See also S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (scientific studies,
like medical literature, have probative value only to the extent they are interpreted by a physician).
13

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (Evidence that does not address the
particular issue involved does not constitute a basis for reopening a case).
14

See Jesse Mendoza, 54 ECAB 802 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 28 and February 17, 2009 are affirmed.
Issued: June 10, 2010
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Pharr, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1679
Issued: May 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 2, 2018 appellant filed a timely appeal from a July 16, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the July 16, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury on May 8,
2018 in the performance of duty, as alleged.
FACTUAL HISTORY
On May 8, 2018 appellant, then a 53-year-old supervisory customs and border patrol
officer, filed a traumatic injury claim (Form CA-1) alleging that, on that date, he experienced back
pain and right leg tingling while walking to his supervisor’s office while in the performance of
duty. He did not stop work.
In a May 9, 2018 attending physician’s report (Form CA-20), Dr. Jorge E. Tijmes, a Boardcertified orthopedic surgeon, noted a May 8, 2018 date of injury and related that appellant
developed back pain after standing for more than four hours. He diagnosed lumbar strain and
checked a box marked “yes,” indicating that the diagnosed condition was caused or aggravated by
the employment activity. Dr. Tijmes explained that long periods of standing, walking, or sitting
can exacerbate back pain. In a separate encounter note dated May 9, 2018, he diagnosed lumbar
sprain.
A May 9, 2018 narrative report signed by Sofia C. Luna, a physician assistant, noted that
appellant was evaluated that day for low back pain complaints. Appellant related that, on May 8,
2018, he developed pain during his work shift when he was required to stand for more than six
hours. Physical examination findings were detailed and a lumbar spine x-ray interpretation
reviewed. Diagnoses included low back pain and back strain. Appellant was referred for physical
therapy.
In a May 30, 2018 report, Dr. Alex Flores, an examining chiropractor, diagnosed low back
pain and lumbar ligament sprain. Appellant related that his job was normally sedentary, but that
he had stood for approximately six hours on May 8, 2018. He took a break to sit down and, after
sitting for approximately two hours, he felt a sharp shooting pain and had difficulty standing up.
Physical examination findings were detailed.
In a development letter dated July 16, 2018, OWCP noted that when appellant’s claim was
first received it appeared to be a minor injury that resulted in minimal lost time from work and was
therefore administratively approved for a payment of a limited amount of medical expenses. It
informed him that evidence of record was insufficient to establish his claim. OWCP advised him
of the type of factual and medical evidence needed and provided a questionnaire for his
completion. It afforded appellant 30 days to submit the necessary evidence.
Dr. Tijmes, in a June 6, 2018 report, noted that appellant was seen again on June 1, 2018
for a May 8, 2018 injury. He noted physical examination findings and diagnosed lumbar sprain.
In a June 17, 2018 statement, appellant responded to OWCP’s development questionnaire.
He described the events on May 8, 2018, explaining that he was assigned to check documents at a
pre-pedestrian post for approximately four hours, supervise officers assigned to passengers for
about two hours, and then return to check documents at the pre-primary post. While supervising

2

officers, appellant developed lower back pain. He developed sudden sharp lower back pain while
walking to his supervisor’s office after being relieved at 2:00 p.m. from the pre-primary post.
Appellant related that correcting his posture to stand in an upright position was painful.
By decision dated July 16, 2018, OWCP denied appellant’s claim finding he had failed to
establish the factual portion of his claim. Specifically, it found that he failed to clearly identify
what aspect or factor of the act of supervising employees caused a lower back injury. OWCP
further found that the medical evidence of record was insufficiently rationalized to establish a
diagnosed medical condition causally related to the employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic 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 that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action. An employee has not met his or her burden of proof to establish the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a prima facie case has been established. However, an employee’s
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

3

statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.9
ANALYSIS
The Board finds that appellant has established that the May 8, 2018 incident occurred at
the time, place, and in the manner alleged.
In a June 13, 2018 development letter, OWCP requested that appellant respond to its
questionnaire and provide detailed information concerning the job activities he believed
contributed to his alleged lumbar condition. Appellant responded to OWCP’s request and
submitted his own supplemental statement, as well as medical evidence, which described that on
May 8, 2019 he stood for four hours checking documents at a pre-primary post, sat for two hours
while supervising officers, and then stood again for two hours at the pre-primary post. He
developed back pain while sitting, and then developed sharp back pain at the end of his shift as he
walked to his supervisor’s office, and also experienced back pain while correcting his posture to
stand in an upright position. Appellant’s history of the events of May 8, 2018 is consistent with
the history he provided his medical providers, who noted that appellant usually performed
sedentary duties, but developed back pain on May 8, 2018 after standing for six hours. As he has
identified the mechanism of injury, the Board finds that appellant has sufficiently described the
events of May 8, 2018. There are no such inconsistencies in the evidence as to cast serious doubt
upon the validity of the claim.10
The Board further finds, however, that appellant has not established that the accepted
employment incident of May 8, 2018 caused his lumbar sprain.
Appellant was treated by Dr. Tijmes on May 9 and June 1, 2018, and he diagnosed lumbar
sprain. While in his May 9, 2018 attending physician’s report (Form CA 20) he indicated by
checking a box marked “yes,” that appellant’s history of standing for four hours caused his lumbar
sprain, the Board has held that a physician’s opinion on causal relationship which consists of
checking “yes” to a form question, without explanation or rationale, is of diminished probative
value and is insufficient to establish a claim.11 While he added that long periods of standing,

8

See L.G., Docket No. 18-1050 (issued March 1, 2019).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

10

Supra note 7.

11

E.V., Docket No. 17-0037 (issued November 3, 2017).

4

walking or sitting can exacerbate back pain, this opinion is speculative and equivocal in nature.12
This report is therefore of diminished probative value regarding the issue of causal relationship.
In his additional reports dated May 9 and June 1, 2018, Dr. Tijmes diagnosed lumbar
sprain, but offered no opinion regarding causal relationship. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.13 These reports, therefore, are insufficient to
establish appellant’s claim.
In a May 9, 2018 report, Ms. Luna, a physician assistant, noted a diagnosis of back strain.
This report does not constitute competent medical evidence because a physician assistant is not
considered a “physician” as defined under FECA.14 Under FECA the term physician includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by the applicable state law.15
Consequently, the medical findings and/or opinions of a physician assistant will not suffice for
purposes of establishing entitlement to compensation benefits.16
Dr. Flores, a chiropractor, reported on May 30, 2018 that appellant was treated for lumbar
ligament strain. Section 8101(2) of FECA17 provides that the term physician, as used therein,
includes chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation, as demonstrated by x-ray
to exist and subject to regulation by the Secretary.18 Since Dr. Flores did not diagnose subluxation
based upon x-ray evidence, he is not a qualified physician under FECA.19 Thus, his report is of
no probative value and is insufficient to establish causal relationship.20
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish that his lumbar sprain was causally related to the accepted May 8, 2018
employment incident. Appellant, therefore, has not met his burden of proof.

12

See J.R., Docket No. 18-0206 (issued October 15, 2018).

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

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

15

5 U.S.C. § 8101(2).

16

S.C., Docket No. 18-1242 (issued March 13, 2019).

17

5 U.S.C. § 8101(2).

18

See 20 C.F.R. § 10.311; M.B., Docket No. 17-1378 (issued December 13, 2018).

19

R.H., Docket No. 18-1544 (issued March 4, 2019); Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).

20

T.C., Docket No. 18-1498 (issued February 13, 2019).

5

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 established that the May 8, 2018 employment incident
occurred at the time, place, and in the manner alleged. However, he has not met his burden of
proof to establish that his lumbar strain was causally related to the accepted May 8, 2018
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: May 6, 2019
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1677
Issued: March 12, 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 August 3, 2012 appellant filed a timely appeal of a July 26, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying his claim for a schedule award
due to facial disfigurement. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to a
schedule award for facial disfigurement.
FACTUAL HISTORY
On May 31, 2011 appellant, then a 58-year-old window clerk, filed a traumatic injury
alleging on that date that a board fell down from a window at the employing establishment
injuring his head and the left side of his face. He sought medical treatment and was diagnosed
1

5 U.S.C. § 8101 et seq.

with a facial laceration. Appellant requested a schedule award on July 23, 2011 for headaches,
nerves and post-traumatic stress disorder.
By decision dated July 28, 2011, OWCP accepted appellant’s claim for open wound of
the face without complications. It issued a letter noting that, as his claim had been accepted for
facial laceration, he could be entitled to a schedule award not to exceed $3,500.00 for serious
disfigurement of the face, head or neck if such disfigurement was likely to handicap an
individual in securing or maintaining employment. OWCP directed appellant to complete the
enclosed application for disfigurement award, Form CA-1094 and to attach to the application
two photographs which showed different views of the disfigurement. It requested that the
photographs be at least 4 by 5 inches in size and that his face, head or neck should comprise at
least 75 percent of the picture area. OWCP also provided appellant with a Form CA-1094
requesting information from an attending physician.
Appellant completed an application for a facial disfigurement award on August 3, 2011
and described his disfigurement as the head and lips. He stated that he experienced bad
headaches, dizziness and blurry vision. Appellant also stated that his condition made it difficult
to interact with people.
In a note dated June 28, 2011, Dr. J.F. Beaty, a Veterans Administration physician, stated
that appellant was experiencing cognitive difficulties related to his head injury. He
recommended time off from work from July 5 through 22, 2011. Dr. Beaty did not address facial
disfigurement.
In a form report dated May 31, 2011, an emergency medical technician (EMT) noted that
appellant was working on a window when a board from the top of the window, approximately
four to five feet up, fell and hit him on the head. Appellant reported dizziness and headache.
The EMT described a laceration of approximate 0.5 inches on his forehead and small abrasions
above his upper lip.
By decision dated March 28, 2012, OWCP denied appellant’s claim for a schedule award.
It noted that he failed to provide the requested photographs to support facial disfigurement or any
medical evidence to support his claimed disfigurement.
Appellant requested an oral hearing before an OWCP hearing representative on
April 9, 2012.
By decision dated July 26, 2012, an OWCP hearing representative affirmed the denial of
appellant’s claim, finding that there was no medical evidence of or photographs to support any
facial disfigurement warranting schedule award.
LEGAL PRECEDENT
If an injury causes serious disfigurement of the face, head or neck of a character likely to
handicap a claimant in securing or maintaining employment, a schedule award is payable under
FECA in the amount of up to $3,500.00.2 In an appeal involving a disfigurement, the question
2

5 U.S.C. § 8107(c)(21).

2

before the Board is whether the amount awarded by OWCP was based upon sound and
considered judgment and was “proper and equitable” under the circumstances as provided by 5
U.S.C. § 8107(c)(21).3 In determining what constitutes a “proper and equitable” award for
disfigurement, an evaluation must be made as to the likely economic effect of appellant’s
disfigurement in securing and maintaining employment.4 As the only limitation on OWCP’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deductions from established facts.5 The Board will not interfere with or set aside a
disfigurement determination of OWCP unless clearly in error.6
OWCP’s procedures provide the steps for OWCP to follow in evaluating disfigurement
cases. It will provide the claimant with notification of the right to apply for an award, with the
proper forms for both the claimant and his physician and with notification of the need for
photographs.8 After OWCP has collected the required evidence, the district medical director or
assistant medical director will examine the claimant and place a memorandum in the record
describing the disfigurement and stating whether maximum medical improvement has occurred.9
7

ANALYSIS
The Board finds that appellant has not established that he sustained facial disfigurement
so as to warrant a schedule award. Appellant’s claim was accepted for open wound of the face
without complications. According to OWCP’s procedures, a claimant seeking a schedule award
for facial disfigurement must complete the front of a Form CA-1094 while the attending
physician should complete the reverse of the form.10 With the CA-1094 form, the claimant must
submit two photographs taken within five days of the date of the application, each showing
different views of the disfigurement fairly and accurately portrayed. After the required evidence
is submitted, the case is referred to an OWCP district medical adviser for evaluation to include
personal examination of the claimant by OWCP officials. Appellant did not submit the required
documentation or the medical evidence requested. He has not met his burden of proof to
establish granting a schedule award for facial disfigurement.11

3

John F. Critz, 44 ECAB 788, 791-92 (1993).

4

Id.

5

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

6

D.B., Docket No. 11-1293, 11-1825 (issued April 9, 2012).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.8 (January 2010).
8

Id.

9

Id.

10

Supra note 7.

11

L.E., Docket No. 09-1431 (issued January 11, 2010).

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained permanent disfigurement to his face causally related to his accepted employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the July 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF THE NAVY, OFFICE OF
NAVAL INTELLIGENCE, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-303
Issued: May 7, 2012

Case Submitted on the Record

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

JURISDICTION
On November 17, 2010 appellant, through his attorney, filed a timely appeal of an
August 4, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability beginning
August 4, 2009 due to his accepted employment conditions.
On appeal appellant, through his attorney, contends that the medical evidence established
a recurrence of disability. In the alternative, appellant’s attorney argued that the evidence was
sufficient to require OWCP to further develop the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 20, 2005 appellant, then a 49-year-old intelligence specialist, filed a traumatic
injury claim alleging that on June 13, 2005 he tripped on a coat rack, stumbled and fell into a
wall, got caught on a metal wall plate and wrenched to stop and in twisting around to disengage
from metal object, twisted back again. He alleged that as a result of this incident he suffered
from a lumbar strain with left radiculopathy. OWCP accepted appellant’s claim for sprain of the
back, lumbar region; thoracic lumbar neuritis; derangement lateral meniscus of left knee;
unspecified left internal derangement; tear of the left medial meniscus; osteochondritis dissecans;
displacement of lumbar intervertebral disc without myelopathy; herniated nucleus pulposus L4-5
and L5-S1 with a disc bulge at L3-4; other specified arthropathy, left ankle and foot; cervicalgia;
and C6 radiculitis (right arm). Appellant underwent nerve blocks for lumbar radiculopathy with
physical therapy, two arthroscopic surgeries and, on February 13, 2007, a total left knee
replacement.
On October 17, 2007 appellant was offered a limited-duty position as an intelligence
specialist. He accepted the offer and returned to work on October 29, 2007. On August 5, 2008
appellant underwent an L3-4, L4-5 and L5-S1 discogram.
On August 3, 2009 OWCP accepted that appellant sustained a recurrence with a period of
disability from August 5 through October 3, 2008. Appellant returned to limited-duty work on
April 16, 2009.
On October 4, 2009 appellant filed a recurrence of disability claim as of August 4, 2009.
He stated that at the time he returned to work on April 16, 2009 he was on limited duty with
minimal time for sitting, standing, walking and allowance for breaks every 20 minutes,
ergonomic seating when possible. Appellant stated that approximately four weeks after
returning to work he experienced a flare-up of knee, lower back, foot and neck pain. He then
noted that on August 4, 2009 he experienced level 10 pain in his neck after hearing a popping
sound when he turned his head. Appellant noted that he has been seen by back, knee and foot
specialists starting in May 2009 and continuing through the current date.
In support of his claim, appellant submitted reports by Dr. Peter B. Bandera, his treating
Board-certified physiatrist. In an August 17, 2009 report, Dr. Bandera listed his impressions as
cervical/lumbar syndrome with strain/sprain with radiculopathy features; internal derangement of
left knee status post total knee replacement; lumbar disc displacement, cervicalgia; cervical
syndrome with strain/sprain/radiculopathy features and traumatic expression of cervical
degenerative joint disease/osteophytes. He noted that, due to appellant’s morbidities and severity
of his diagnoses, he is having trouble completing essential tasks and may need a vocational
downgrade. In a September 23, 2009 report, Dr. Bandera noted appellant had slight
improvement in his range of motion of the cervical spine extension which is still significantly
limited. He noted positive bilateral Spurlings’ maneuver/SR. Dr. Bandera opined that appellant
would optimally do better in a home-based environment in terms of productivity and task
completion; however, this is still problematic for him.

2

By decision dated February 5, 2010, OWCP denied appellant’s claim for a recurrence of
disability commencing August 4, 2009 as the factual and medical evidence did not establish that
the claimed recurrence resulted from the accepted work injury of June 13, 2005.
By letter dated February 9, 2010, appellant, through his attorney, requested an oral
hearing before an OWCP hearing representative.
In a January 13, 2010 report, Dr. Bandera stated that appellant was noting
pain/dysfunction relative to the neck, back, left knee and left foot. He noted that functionally
appellant is having increased problems with left foot status post incomplete fusion procedure.
Dr. Bandera noted that review of symptoms identified increased paresthesias/numbness and
tingling antalgic gait with cane. He stated that functionally, he was unsafe for transferring from
sitting to standing rapidly. Dr. Bandera concluded that appellant had multiple comorbidities and
continues at a high level of dysfunction. He noted that working at home was getting more
difficult and that he may have to return him to total disability status. In a January 27, 2010
report, Dr. Bandera noted that appellant continued with neck and back pain with a radiating
component and paresthesias lower extremities consistent with neuropathy, status post left total
knee. He noted that appellant ambulated with a cane and had disruption of basic activities of
daily living and that appellant was not working. Dr. Bandera noted that appellant’s
electrodiagnostic studies are consistent with bilateral L4-5 radiculopathy. He stated that in
addition, appellant has symmetric polyneuropathy. Dr. Bandera indicated that, when compared
to a prior study, there is expression of radiculopathy pattern with chronic/active features. In a
February 24, 2010 note, he indicated that appellant continues with pain/dysfunction related to
low back/left knee and has pronator abnormality in bilateral feet. Dr. Bandera also stated that an
electromyogram of January 27, 2010 is consistent with bilateral L4-5 radiculopathy. He noted
that the deterioration/worsening of appellant’s overall condition is directly related to his work
injury as the ongoing stresses cause further radicular pattern relative to the low back and
degeneration relative to the knee in terms of prolonged sitting/standing/desk activities. As such,
Dr. Bandera indicated that he has continued appellant’s out of work status beginning
August 4, 2009. He stated that his overall prognosis is poor due to multiple sites of injury. In a
March 3, 2010 report, Dr. Bandera listed his impression as bilateral C6 radiculopathy. He stated
that appellant has pain/dysfunction relative to the neck, back and left leg/knee/foot. Dr. Bandera
stated that there was a direct causal relationship between these diagnoses/current injuries and his
original work injury of June 2005. He noted that this was inclusive of cervical/lumbar
radiculopathy documented on EMG testing. In a May 3, 2010 report, Dr. Bandera stated that
appellant has ongoing decompression relative to his condition. He noted that appellant was
having difficulties performing specific activities or prolonged sitting for periods of greater than
10 to 15 minutes. Dr. Bandera stated that he assigned him no work status secondary to his scope
of injuries which included cervical/lumbar radiculopathy, left knee internal injury/degenerative
joint disease and left foot degenerative joint disease status post fracture. In a June 3, 2010 report,
he noted that appellant continued with a high level of disability/impairment. Dr. Bandera has
incurred work stoppage resulting from a work injury of the above-accepted diagnoses without
intervening cause with the original date of injury of June 13, 2005. He noted that appellant’s
worsening conditions culminated in August 4, 2009 with his inability to work and ongoing
disability status.

3

At the hearing held on May 18, 2010, appellant testified that he had a 30 percent Veterans
Administration disability rating based on both of his feet, but that he had no prior neck, back or
knee injuries. He stated that he returned to work in October 2007, but was out of work again in
August 2008. Appellant noted that he was permitted to return to work on April 16, 2009 with
restrictions that he was limited to four hours a day of sitting, standing, walking and driving with
15-minute breaks as needed. He stated that he stopped work on the current recurrence on
August 2, 2009. Appellant noted that he did not get a written job offer, but rather he called the
employing establishment and they told him he was released to work. He stated that even though
his doctor gave him a limited-duty restriction, he returned to his same job duties, except that it
required more driving. Appellant noted that he commutes two and one-half hours each way to
work. He stated that, about three weeks after he returned to work, he began to experience
problems, first with his left knee, but that these symptoms spread to his lower back and neck in
May 2009. Appellant testified that he infrequently took pain medication because he could not
drive with the medication. He testified that on August 4, 2009 he turned to talk to his supervisor
and he had an explosion of pain in his neck.
By decision dated August 5, 2010, the hearing representative affirmed OWCP’s
February 5, 2010 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or a new exposure to the work environment.2
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden the employee must show
a change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty job requirements.3 This burden includes the necessity of furnishing
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to the employment
injury and supports that conclusion with sound medical reasoning.4
ANALYSIS
OWCP accepted appellant’s claim for sprain of the back, lumbar region; thoracic lumbar
neuritis; derangement, lateral meniscus of left knee; unspecified left internal derangement; tear
of the left medial meniscus; osteochondritis dissecans; displacement of lumbar intervertebral disc
2

20 C.F.R. § 10.5(x).

3

Terry R. Hedman, 38 ECAB 222 (1986).

4

See Nicolas Bruso, 33 ECAB 1138 (1982).

4

without myelopathy; herniated nucleus pulposus L4-5 and L5-S1 with a disc bulge at L3-4; other
specified arthropathy, left ankle and foot; cervicalgia and C6 radiculitis (right arm). Appellant
sustained a recurrence of disability on August 5, 2008 and returned to limited-duty work on
April 16, 2009. He alleges that he sustained a recurrence of disability on August 4, 2009 when
he turned towards his supervisor and experienced level 10 pain in his neck. However, the
medical evidence is insufficient to meet appellant’s burden of proof to establish that he suffered
from a recurrence on August 4, 2009. There is no indication that he sought immediate medical
attention on August 4, 2009. On August 17, 2009 appellant saw Dr. Bandera, but he made no
mention of the event occurring on August 4, 2009 in this report. Dr. Bandera noted that
appellant had ongoing symptoms and may need a vocational downgrade. However, he never
stated in his report that appellant was unable to perform the duties of his job. In his
September 23, 2009 report, Dr. Bandera also made no mention of events occurring on
August 4, 2009. He noted that appellant would do better in a home-based environment, but did
not indicate that he was disabled. In his January 13, 2010 report, Dr. Bandera noted that
appellant continued to have a high level of dysfunction and indicated that he may have him
assume total disability status. He does not attribute this to the August 4, 2009 alleged
recurrence. Dr. Bandera’s first mention of the date August 4, 2009 is in his report of
February 24, 2010, over six months later, and at that point, he just noted that appellant had a
continued out of work status beginning August 4, 2009. In his March 3, 2010 report, he
indicated that there was a direct causal relationship between appellant’s condition at that time
and his employment, but this opinion does not address appellant’s condition in August 2009. In
his June 3, 2010 report, Dr. Bandera noted that appellant’s worsening conditions culminated in
an August 4, 2009 inability to work an ongoing disability status. This conclusion, however, is
unsupported by his reports more contemporaneous to the date of the alleged recurrence.
The Board accordingly finds that appellant did not meet his burden of proof in this case.
Appellant did not establish a change in the nature and extent of the injury-related condition or the
light-duty job and OWCP properly denied his claim.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability beginning
August 4, 2009 due to his accepted employment conditions.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 4, 2010 is affirmed.
Issued: May 7, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6