United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, White River Junction, VT, Employer
__________________________________________

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

Docket No. 18-0468
Issued: September 4, 2018

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 January 8, 2018 appellant filed a timely appeal from a December 21, 2017 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 to consider the merits of the case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 7, 2018.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the prior decision are incorporated herein by reference. The relevant facts are as follows.
On January 27, 1995 appellant, then a 42-year-old administrative assistant filed an
occupational disease claim (Form CA-2) alleging that on January 1, 1994 she initially became
aware of tendinitis or carpal tunnel syndrome in her right arm. She first attributed her condition
to her federal employment on January 23, 1995 and noted that the more time she spent using her
computer the more painful her right arm became. On March 3, 1995 OWCP accepted appellant’s
claim for right radial tenosynovitis. Appellant stopped work on September 29, 1996 and received
wage-loss compensation on the periodic rolls as of December 27, 1996. On February 12, 2002
OWCP expanded the acceptance of appellant’s claim to include right carpal tunnel syndrome and
right carpal tunnel release.
On March 1, 2002 appellant filed a recurrence (Form CA-2) claiming that on September 1,
2001 she experienced a worsening of her fibromyalgia. She alleged that her fibromyalgia was not
only related to her federal employment activities and conditions, but was caused by these activities
and conditions. By decision dated March 14, 2002, OWCP denied appellant’s claim for medical
benefits for her condition of fibromyalgia. After multiple requests for reconsideration, by decision
dated December 2, 2002, it denied modification of the March 14, 2002 decision. Appellant
appealed the December 2, 2002 OWCP decision to the Board. By decision dated March 10, 2004,3
the Board found a conflict of medical opinion evidence existed and remanded the claim for further
development of the medical evidence. After further development as directed by the Board on
March 10, 2004, by an August 13, 2004 decision, OWCP expanded acceptance of appellant’s
claim to include fibromyalgia.
On March 2, 2016 OWCP referred appellant for a second opinion examination with
Dr. Douglas P. Kirkpatrick, a Board-certified orthopedic surgeon. Dr. Kirkpatrick completed his
second opinion report on April 12, 2016. He noted that appellant’s date-of-injury position required
keyboarding and writing which resulted in right arm pain. On physical examination, appellant
reported pain in her right forearm with weakness as well as whole body pain. Dr. Kirkpatrick
noted no atrophy in any extremity. He found full range of motion in the extremities with slight
pain to palpation of the forearm muscles. Dr. Kirkpatrick found no physical evidence of carpal
tunnel syndrome or de Quervain’s tendinitis in appellant’s right wrist and concluded that she had
no residuals of these conditions. He further noted that, although her claim was accepted for
fibromyalgia, her complaints of fatigability and diffuse pain did not appear to be clear evidence of
this condition. Dr. Kirkpatrick found that appellant had some evidence of multiple tender and sore
areas which was indicative of fibromyalgia. He noted that her complaints of fibromyalgia were
largely subjective and not in keeping with “classic fibromyalgia” diagnosis as is her fatigability.
Dr. Kirkpatrick opined, “I find this difficult to discern whether she suffers residuals from
fibromyalgia in this setting, but certainly “the claimed disability seems in far excess as expected

2

Docket No. 03-0661 (issued March 10, 2004).

3

Id.

2

even with an active diagnosis of fibromyalgia.” He further opined that appellant could perform
full-time light-duty work.
Dr. Kirkpatrick completed a work capacity evaluation (OWCP-5c) and opined that
appellant could not return to her date-of-injury position. He found that she could push or pull 20
pounds for two hours and lift 30 pounds for two hours. Dr. Kirkpatrick determined that appellant
could perform repetitive movements of her wrists and elbows for two hours each, and could operate
a motor vehicle for one hour. He determined that she should not squat, kneel, or climb and that
she could walk or stand for two hours a day.
In reports dated June 6 and September 28, 2016, Dr. Julie Davis, a Board-certified family
practitioner and appellant’s attending physician, addressed Dr. Kirkpatrick’s findings and
conclusions that appellant could return to work. She disagreed and recommended a functional
capacity evaluation (FCE). Dr. Davis opined that appellant continued to experience symptoms of
her accepted conditions of carpal tunnel syndrome, bilateral arm tendinitis, and fibromyalgia. She
noted that appellant limited activities and utilized pain medication to control her symptoms.
On October 3, 2016 appellant underwent an FCE as recommended by Dr. Davis. On
December 7, 2016 Dr. Davis reviewed appellant’s date-of-injury job description and opined that
appellant could not fully perform these duties as she could not lift over eight pounds based on her
FCE. She further noted that appellant’s fine and medium dexterity were limited such that appellant
could not type or perform fine motor skills.
In a letter dated February 15, 2017, OWCP referred appellant, a statement of accepted facts
(SOAF), and a list of questions to Dr. Daniel O’Neill, a Board-certified orthopedic surgeon, for an
impartial medical examination to resolve the conflict of medical opinion evidence between
Drs. Davis and Kirkpatrick regarding appellant’s work capacity. The SOAF listed appellant’s
accepted work-related conditions including right radial tenosynovitis, right carpal tunnel
syndrome, and fibromyalgia.
In a report dated March 7, 2017, Dr. O’Neill reviewed the SOAF and appellant’s medical
history. He reported her continued symptoms of fibromyalgia and weakness in the right wrist and
noted that she last worked in 1996 as an administrative assistant. Appellant reported that she had
taken her pain medication on the day of examination. Dr. O’Neill performed a physical
examination and found that she was cooperative and made good efforts throughout. He noted
decreased sensation on the left hand compared to the right, but normal strength throughout.
Dr. O’Neill found mildly positive Tinel’s sign at the right carpal tunnel, but no neurological signs.
He reported that appellant’s maximum pain site was at the epicondyle of her right elbow, but that
she exhibited full range of motion, no loss of strength, and negative Tinel’s sign. Dr. O’Neill
diagnosed right upper extremity pain of uncertain etiology, probably related to fibromyalgia. He
opined that appellant’s only appropriate diagnosis was fibromyalgia, which was “clearly not”
associated with her work, but due to her physiology, that is, physically not capable of doing her
job. Dr. O’Neill explained that she “was simply not capable physiologically …” of performing
her date-of-injury position. He drew a parallel between appellant’s employment duties and his
own capacity to compete as a professional cyclist, noting that while he could perform many of the
actions, he did not have the physical capacity to ride at that speed and that distance. Dr. O’Neill
determined that after just a few years of working at the employing establishment that she was not

3

physically capable of doing that job. He opined that appellant had issues with tolerance and that
intolerance to a job did not equate with impairment. Dr. O’Neill determined that her only diagnosis
was fibromyalgia and that this condition was not work related. He concluded that appellant had
no objective findings and required no treatment due to her employment. Dr. O’Neill determined
that she could perform full-time, light-duty work limited only by her tolerance and that she had no
current disability.
In a letter dated June 27, 2017, OWCP requested that Dr. O’Neill clarify whether appellant
had any residuals of her accepted conditions. It also requested that he complete a work restriction
evaluation (Form OWCP-5c). Dr. O’Neill provided a supplemental report on July 5, 2017 and
opined that appellant could perform all the physical requirements of her date-of-injury position as
an administrative assistant. He opined that she did not have any residuals of the accepted
conditions or 1994 employment injury. Dr. O’Neill completed the Form OWCP-5c and indicated
that appellant was capable of performing her usual job without restrictions. He found that she
could perform work at the light strength level and indicated that she could lift up to 30 pounds and
push or pull 20 pounds for one hour each. Dr. O’Neill also indicated that appellant could reach
above the shoulder for two hours, twist for one hour, and bend or stoop for two hours. He restricted
the use of her wrists and elbows for repetitive movements to two hours a day. Dr. O’Neill found
that appellant could squat, kneel, and climb for one hour each.
On November 17, 2017 OWCP provided appellant with a notice of proposed termination.
It determined that Dr. O’Neill’s report resolved the conflict of medical opinion evidence between
the second opinion physician, Dr. Kirkpatrick, and appellant’s physician, Dr. Davis, and
determined that appellant had no disability or medical residuals of her accepted conditions. He
found that appellant could return to her date-of-injury position as an administrative assistant.
OWCP proposed to terminate her wage-loss compensation and medical benefits and afforded her
30 days to respond.
In a letter dated November 19, 2017, appellant responded to OWCP’s proposed termination
and contended that her accepted employment-related conditions continued, resulting in disability
for work and the need for further medical treatment. She asserted that her fibromyalgia should
have been assessed more thoroughly by a rheumatologist. In support of her contentions, appellant
provided documents from the National Fibromyalgia Association website.
By decision dated December 21, 2017, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective January 7, 2018. It found that Dr. O’Neill’s March 5,
2017 report was entitled to the special weight of the medical evidence and established that
appellant had no disability from work or medical residuals causally related to her 1994
occupational injury.
LEGAL PRECEDENT
Pursuant to FECA, once OWCP accepts a claim and pays compensation, it has the burden
of proof to justify termination or modification of an employee’s benefits.4 OWCP may not
4
See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.5 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.7 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition which require further
medical treatment.8
Section 8123(a) of FECA 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 (known as a referee physician or impartial medical specialist) who
shall make an examination.9 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.10
When there exists opposing 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.11
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits.
OWCP accepted appellant’s claim for right radial tenosynovitis, right carpal tunnel
syndrome, and fibromyalgia. On March 2, 2016 it referred her for a second opinion evaluation
with Dr. Kirkpatrick who, in his April 12, 2016 report, found that she had some evidence
fibromyalgia on physical examination, but that her complaints of fibromyalgia symptoms were
largely subjective. Dr. Kirkpatrick found that appellant could return to work in a light-work
capacity with restrictions, including lifting limited to 30 pounds for two hours a day. Appellant’s
attending physician, Dr. Davis, opined that appellant continued to experience symptoms of her
accepted conditions of carpal tunnel syndrome, bilateral arm tendinitis, and fibromyalgia. She
opined that appellant could not fully perform the duties of her date-of-injury position as she could
5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

See R.P., supra note 4; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See R.P., supra note 4; A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E.
Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
8
See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

5 U.S.C. § 8123(a); see R.P., supra note 4; R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 081675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
10

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

11

See R.P., supra note 4; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

not lift over eight pounds and as her fine and medium dexterity were limited such that appellant
could not type or perform fine motor skills. The Board finds that OWCP properly determined that
there was a conflict of medical opinion evidence between Dr. Kirkpatrick and Dr. Davis regarding
the extent of appellant’s ability to work.
OWCP then properly referred appellant for an impartial medical examination with
Dr. O’Neill to determine her disability status. In his March 7, 2017 report, Dr. O’Neill reviewed
the SOAF. He reported appellant’s continued symptoms of fibromyalgia and weakness in the right
wrist. Dr. O’Neill performed a physical examination and found that she was cooperative and made
good efforts throughout. He diagnosed right upper extremity pain of uncertain etiology, “probably
related to fibromyalgia.” Dr. O’Neill opined that appellant’s only appropriate diagnosis was
fibromyalgia, which was “clearly not” associated with her work, but due to her physical
incapability to perform her job. He determined that she could perform full-time, light-duty work
limited only by her tolerance and that she had no current disability.
In a letter dated June 27, 2017, OWCP requested that Dr. O’Neill clarify whether appellant
had any residuals of her accepted conditions. On July 5, 2017 Dr. O’Neill provided a supplemental
report and opined that she could perform all the physical requirements of her date-of-injury
position as an administrative assistant. He opined that appellant did not have any residuals of the
accepted conditions or 1994 employment injury.
The Board finds that OWCP improperly found that Dr. O’Neill’s report should be entitled
to the special weight afforded an impartial medical examiner. While Dr. O’Neill reviewed
appellant’s medical record in detail, he did not accept the facts as presented in the SOAF in
rendering his medical opinion. OWCP procedures and Board precedent dictate that when an
OWCP medical adviser, second opinion specialist, or referee physician renders a medical opinion
based on a SOAF 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.12
Dr. O’Neill indicated that he had reviewed the SOAF and medical reports of record and
ultimately concluded that appellant’s accepted condition of fibromyalgia was not due to the
accepted employment injury. Contrary to the SOAF, he opined that the mechanism of injury did
not cause the accepted conditions. The Board has explained that the report of an impartial medical
examiner who disregards a critical element of the SOAF and disagrees with the medical basis for
acceptance of a condition is defective and insufficient to resolve the existing conflict of medical
opinion evidence.13 Dr. O’Neill’s reports are of diminished probative value as his opinion did not
rely on the SOAF and it contradicted critical elements of the SOAF. The Board notes that it is the
function of a medical expert to give an opinion only on medical questions, not to find facts.14
Dr. O’Neill did not rely on the SOAF and as such his report is not based on an accurate history of
12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990). See also D.E., Docket No. 17-1794 (issued April 13, 2018); K.V., Docket No. 15-0960 (issued
March 9, 2016); Paul King, 54 ECAB 356 (2003).
13

Id.

14

Id.

6

injury. His report is therefore insufficient to meet OWCP’s burden of proof to terminate
appellant’s wage-loss compensation and medical benefits.15
Accordingly, OWCP improperly terminated appellant’s wage-loss compensation and
medical benefits effective January 7, 2018.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective January 7, 2018.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 4, 2018
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

15

Id.

7


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

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

Docket No. 09-333
Issued: August 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from the October 21, 2008 merit
decision of the Office of Workers’ Compensation Programs, which denied an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case.
ISSUE
The issue is whether appellant has more than 10 percent permanent impairment of either
upper extremity causally related to her accepted employment injuries.
FACTUAL HISTORY
On October 1, 1999 appellant, then a 35-year-old mail handler, filed a claim alleging that
she began to experience severe burning and pain in her hands from doing repetitive work in the

performance of duty. On November 30, 1999 the Office accepted this claim1 for right carpal
tunnel syndrome and bilateral tendinitis of the hands.
In December 1999 appellant filed a series of claims alleging traumatic injuries from
October 21 to November 18, 1999, injuries to her hands, wrists, elbows and both sides of her
neck. On January 18, 2000 the Office accepted the occupational disease claim2 for right carpal
tunnel syndrome and ulnar neuropathy, left elbow.
The Office consolidated the case records under the earlier claim. On November 9, 2000
it issued a schedule award for 10 percent impairment of the right upper extremity due to the
accepted right carpal tunnel syndrome and 10 percent impairment of the left upper extremity due
to the accepted ulnar neuropathy, left elbow.
On August 11, 2008 appellant filed a claim for an increased schedule award. She noted
that her injuries had advanced. On October 14, 2008 Dr. Richard A. Stappenbeck, a Boardcertified neurologist, reported 50 percent impairment of each upper extremity due to motor
deficits and 50 percent impairment of each upper extremity due to sensory deficits. He examined
appellant that day and found muscle strength and muscle tone slightly reduced and not equal
bilaterally. Grip strength was not equal bilaterally and she was not able to lift her left arm above
her head. The sensory examination was normal. Dr. Stappenbeck diagnosed carpal tunnel
syndrome in both wrists and tendinitis in the left arm.
In a decision dated October 21, 2008, the Office denied appellant’s claim for an increased
schedule award. It indicated that Dr. Stappenbeck’s report of unequal bilateral findings seemed
at odds with his assessment of an equal bilateral impairment. Further, the Office noted that he
did not explain how he applied the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001).3
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.5

1

OWCP No. xxxxxx207.

2

OWCP No. xxxxxx452.

3

When asked the date of maximum medical improvement, Dr. Stappenbeck wrote “no improvement.” The
Office took this to mean no change in the date of maximum medical improvement and proceeded to deny any merit
review of matter on the grounds there was no clear evidence of error in the November 9, 2000 schedule award.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

2

ANALYSIS
Appellant states that she is confused about the references to the different parts of her
limbs. She does not understand why the Office’s decision denies her additional problems,
including tendinitis in her right rotator cuff.
Appellant may receive a schedule award for permanent impairment to her upper
extremities caused by the medical conditions the Office expressly accepted: right carpal tunnel
syndrome, bilateral tendinitis of the hands and ulnar neuropathy, left elbow. She may not receive
a schedule award for left carpal tunnel syndrome, right rotator cuff tendinitis or any other
medical condition the Office has not accepted to be related to her federal employment, unless
impairment from such conditions preexisted her employment injuries in late 1999.6
To establish her entitlement to an increased schedule award, appellant must submit a
proper impairment evaluation demonstrating that she has more than 10 percent impairment of her
right upper extremity due to right carpal tunnel syndrome or more than 10 percent impairment of
her left upper extremity due to ulnar neuropathy, left elbow.
The physician evaluating appellant’s impairment must follow the fifth edition of the
A.M.A., Guides. According to Chapter 16.7d, page 507, titled “Tendinitis,” several syndromes
involving the upper extremity are variously attributed to tendinitis, fasciitis, or epicondylitis.
Although these conditions may be persistent for some time, they are not given a permanent
impairment rating unless there is some other factor that must be considered, such as a tendon
rupture or surgical release or excision of the epicondyle, which may cause a permanent weakness
of grip. For this reason, it would not appear that appellant would be entitled to any increased
schedule award based on the accepted bilateral tendinitis of her hands.
Every evaluation of impairment due to carpal tunnel syndrome starts with the three
scenarios listed on page 495 of the A.M.A., Guides. Each of these scenarios requires a
comparison of clinical findings with electromyography and nerve conduction studies.7 Based on
this comparison, the evaluating physician will select the appropriate scenario and evaluate
impairment accordingly.
Appellant’s right carpal tunnel syndrome and ulnar neuropathy, left elbow, are
entrapment or compression neuropathies. The A.M.A., Guides provides that the diagnosis of
6

It is well established that in determining the amount of a schedule award for a member of the body that
sustained an employment-related permanent impairment, preexisting impairments of the body are to be included.
Raymond E. Gwynn, 35 ECAB 247, 253 (1983).
7

If, after optimal recovery time following surgical decompression for carpal tunnel syndrome, an individual
continues to complain of pain, paresthesias or difficulties in performing certain activities, three possible scenarios
can be present: 1. Positive clinical findings of median nerve dysfunction and electrical conduction delay(s). The
impairment due to residual carpal tunnel syndrome is rated according to the sensory and motor deficits as described
in Chapter 16.5b. 2. Normal sensibility and opposition strength with abnormal sensory or motor latencies or
abnormal electromyogram testing of the thenar muscles. A residual carpal tunnel syndrome is still present, and an
impairment rating not to exceed five percent of the upper extremity may be justified. 3. Normal sensibility (twopoint discrimination and Semmes-Weinstein monofilament testing), opposition strength, and nerve conduction
studies. There is no objective basis for an impairment rating. A.M.A., Guides 495.

3

such conditions is made not only on believable symptoms but, more important, on the presence
of positive clinical findings and loss of function. Further, the diagnosis should be documented
by electromyography as well as sensory and motor nerve conduction studies.8 The sensory
deficits or pain, and/or the motor deficits and loss of power, are evaluated according to the
impairment determination method described in section 16.5b. Table 16-10, page 482, provides a
grading scheme and procedure for determining impairment of the upper extremity due to sensory
deficits or pain resulting from peripheral nerve disorders. Table 16-11, page 484, provides a
similar grading scheme and procedure for determining impairment due to motor and loss-ofpower deficits resulting from peripheral nerve disorders based on individual muscle rating.
In compression neuropathies, additional impairment values are not given for decreased
grip strength and in the absence of complex regional pain syndromes, additional impairment
values are not given for decreased motion.9
Appellant bears the burden to submit an impairment evaluation that comports with these
provisions of the A.M.A., Guides. The only evaluation she submitted was the October 14, 2008
evaluation by Dr. Stappenbeck, her neurologist, who simply reported 50 percent impairment of
each upper extremity due to motor deficits and 50 percent impairment of each upper extremity
due to sensory deficits.10 Dr. Stappenbeck made no reference to any table in the A.M.A., Guides
and otherwise gave no indication how he came about those percentages. For this reason, the
Board finds that his October 14, 2008 impairment ratings have little if any value in establishing
appellant’s claim for an increased schedule award.
Because Dr. Stappenbeck’s October 14, 2008 impairment evaluation does not show that
appellant has a greater permanent impairment of her upper extremities due to her accepted
conditions, the Board will affirm the Office’s October 21, 2008 decision denying an increased
schedule award.11
CONCLUSION
The Board finds that appellant has not met her burden to establish that she has more than
10 percent permanent impairment of either upper extremity causally related to her accepted
employment injuries.

8

Id. at 493.

9

Id. at 494.

10

Those figures combine for 75 percent total impairment of each upper extremity. Id. at 604 (Combined Values
Chart).
11

The Board does not believe that Dr. Stappenbeck’s “no improvement” comment raises any issue of maximum
medical improvement. As it does not appear that appellant was contesting the date of maximum medical
improvement in her November 9, 2000 schedule award, it was unnecessary for the Office to deny a merit review of
the matter in its October 21, 2008 decision.

4

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
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U.S. POSTAL SERVICE, POST OFFICE
)
Baton Rouge, LA, Employer
)
___________________________________________ )
T.M., Appellant

Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-09
Issued: May 17, 2007

Case Submitted on the Record

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

JURISDICTION
On October 4, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 8, 2006, which denied modification of her
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability commencing on November 17, 2003 causally related to a June 12, 2002
employment injury.
FACTUAL HISTORY
On June 12, 2002 appellant, then a 44-year-old rural mail carrier, sustained an injury to
her low back while lifting a tray of mail into a vehicle. She stopped work on the date of the

injury and received appropriate compensation.1 On July 2, 2002 the Office accepted her claim
for a lumbar strain.2
Appellant accepted a limited-duty assignment on September 25, 2002. The position
comported with restrictions set forth by her treating physician, Dr. Scott D. Nyboer, a Boardcertified physiatrist. Appellant answered “dutch doors” from “16:30 to 18:00,” telephones and
assisted customers and cased within her restrictions.
On October 11, 2002 Dr. Nyboer noted that appellant could work for eight hours daily
and adjusted her restrictions. Appellant could sit, walk or stand for up to four hours per day;
reach and reach above the shoulder for up to six hours per day; push, pull, lift, squat and kneel
for up to four hours per day, with a weight limit of 20 pounds for pushing and pulling and
25 pounds for lifting.
On November 14, 2003 the employing establishment offered appellant a new limitedduty assignment. The position comprised casing mail within her restrictions in the box section
for one hour, working return to writer mail and notifying certified mail for one hour, assisting
customers in the lobby and general lobby upkeep for one to eight hours. The physical
requirements included fine manipulation, writing and using a rubber stamp for one to two hours.
They also included lifting 10 to 15 pounds intermittently as needed for up to an hour, standing,
sitting, walking on an intermittent schedule per her restrictions from one to eight hours. On
November 15, 2003 appellant “refused to accept, reject, read or sign this new assignment.”
On December 2, 2003 appellant completed a Form CA-7 claiming a recurrence of
disability as of November 17, 2003. By letter dated December 31, 2003, the Office requested
that appellant submit additional factual and medical evidence in support of her claim.
In a January 10, 2004 statement, appellant noted that she had a severely ruptured disc due
to a prior work injury3 but that she had recovered and returned to full duty. She alleged that on
June 12, 2002, she reruptured the same disc. Appellant accepted a limited-duty assignment
within the guidelines set by her physician but stated that, in late October or early November of
2003, she was informed that the limited-duty job assignment would change. If she did not accept
a new limited-duty assignment, the employing establishment would have no other work for her.
Appellant agreed to consider a new assignment which was a lobby monitor position and attended
a training class. However, a week after training, she began working the new assignment and
experienced increased back discomfort and fatigue. Appellant attempted to curtail as much as
possible any obvious extra toll or strain to her back and began asking other coworkers for more
assistance. She alleged that she worked dual assignments for approximately three to four weeks,
but was unable to report to work on November 17, 2003. In a January 9, 2004 statement,

1

Appellant was paid compensation effective July 20, 2002 and placed on the periodic rolls effective
August 11, 2002.
2

The record reflects that appellant had a concurrent preexisting L5-S1 disc herniation documented by a magnetic
resonance image (MRI) scan of May 10,1999.
3

The record does not indicate that the Office accepted any prior back injury as employment related.

2

R.M. Jackson, a coworker, noted that appellant’s job changed because she began to wear office
attire and continued to work in the box section at the same time.
In a January 14, 2004 statement, R. Reynolds, a coworker, alleged that appellant’s job
responsibilities changed. She alleged that appellant worked exclusively in the box area and
assisted window clerks as needed. However, in November 2003, Ms. Reynolds noted that
appellant began working as the lobby stations monitor and overseeing the box section in addition
to her other duties.
In a February 6, 2004 report, Dr. Nyboer noted that appellant returned to restricted work
following her June 2002 injury and worked in that capacity until December 2, 2003, when she
was seen for increased pain in her low back and radiating to her left buttock. He advised that
appellant return to part-time work for no more than six hours per day, which would allow her
time to attend physical therapy.
In a statement dated March 2, 2004, Donald S. Moore, a supervisor of customer services,
noted that in October 2003, the employing establishment was preparing for the Christmas season
and needed a lobby monitor to assist customers. On or about October 28, 2003 he informed
appellant that she was a prime candidate for the position and that her off days would be Saturday
and Sunday. Appellant would not be working her current assignment or have the same off days.
On October 20, 2003 she alleged that she needed a couple of weeks to make child care
arrangements for her grand-child which he agreed to. Mr. Moore noted that appellant kept her
same schedule, but began the training sessions and began to perform some of the duties of a
lobby director. On November 15, 2003 he presented appellant with the new job offer but noted
that she would neither accept, reject, read or sign it. Appellant advised him that the hours would
not work for her. Mr. Moore informed appellant that “this was the job that they needed her to
perform, which was within her restrictions and that the times were indicative of our peak and
highest traffic times.” He alleged that appellant later called him to advise that she was on bed
rest and would not be in for a while. Mr. Moore noted that she did not provide medical
documentation and never informed him of a recurrence of a disability. He indicated that
appellant’s coworkers who had commented on her duties were not familiar with appellant’s
situation.
By decision dated March 12, 2004, the Office denied appellant’s claim for a recurrence of
disability beginning November 17, 2003. The Office determined that the medical evidence did
not support that she was totally disabled or that her condition had worsened or changed such that
she could not longer work.
On March 12, 2004 appellant accepted the limited-duty assignment.
On April 5, 2004 appellant requested a hearing. This was later changed to a request for a
review of the written record.
In reports dated March 2, 2004, Dr. Nyboer noted that appellant was currently being
treated for an exacerbation of an L5-S1 lumbar disc herniation which occurred in June 2002. He
stated that her current pain was an “exacerbation of her previous injury and is not a new injury.”

3

On July 12, 2004 Dr. Nyboer noted that appellant still had intermittent pain; however, she
had reached maximum medical improvement. In a September 3, 2004 report, he stated that
appellant returned to work and after two and a half weeks stopped because her back “went out.”
Dr. Nyboer diagnosed low back pain, lumbar radiculopathy and an S1 disc herniation. On
October 18, 2004 he diagnosed chronic low back pain, lumbar radiculopathy and L5-S1 disc
herniation. Dr. Nyboer recommended that appellant continue with her work restrictions.
In a November 11, 2004 report, Dr. Nyboer noted that in July 2003 appellant presented
with increased low back and left leg pain which she attributed to increased activities at work. In
October, appellant was seen in follow up and Dr. Nyboer recommended that she continue with
her light duty. In December 2003, she related that her pain was worsening which she attributed
to doing more at work in July 2003. Dr. Nyboer started appellant on medication and physical
therapy to help strengthen her back muscles and recommended placing her off work while she
was receiving physical therapy. He stated that she was “on temporary disability from
November 18, 2003 until February 6, 2004 due to her aggravation of her preexisting back
injury.” Dr. Nyboer opined that appellant’s reaggravation was causally related to her disc
herniation at L5-S1 from her original 1998 work injury and the subsequent aggravation that
occurred in June 2002. He opined that appellant’s symptoms improved in February and she
returned to part-time work.
In a November 19, 2004 statement, appellant’s representative submitted copies of her
medical records. Counsel contended that appellant’s claim was incorrectly listed as an accepted
lumbar strain instead of an aggravation of a prior work-related injury. He referenced a 1998
work-related accident and included the medical records pertaining to that claim. He noted that
the medical evidence supported that appellant’s disability commencing in November 2003 was
causally related to the original work-related injury. Counsel contended that appellant’s condition
was due to a change in the nature and extent of her light-duty assignment.
In a December 17, 2004 decision, the Office hearing representative found that appellant
had not established a recurrence of disability in November 2003. He modified the Office’s
March 12, 2004 decision to accept that her work exacerbated her preexisting L5-S1 disc
herniation in June 2002.4 The Office affirmed the March 12, 2004 decision as modified.
On December 5, 2005 appellant alleged that in November 2003, she was required to work
dual assignments as a lobby monitor and a box section clerk. This required an extensive amount
of walking, standing, lifting and bending in excess of five to six hours a day. She alleged that
she had to walk back and forth between the two work areas in excess of four to five hours a day,
while serving customers. Appellant alleged that her requests for assistance were regularly
ignored by her supervisors, whom attributed the extra work as necessary because of the holiday
period. During this time frame, her physician prescribed an ergonomic chair but that she had not
been provided with one.
On December 16, 2005 appellant’s representative requested reconsideration, contending
that the medical evidence supported a recurrence of disability beginning in October 2003. As the
4

The Office hearing representative also found that there was a record that appellant had an employment injury
in 1998.

4

limited assignment became more demanding, it did not meet the physical restrictions of her
medical provider. Appellant’s representative noted that she was not given an ergonomic chair as
prescribed by her physician. He contended that the physical requirements of the light-duty
positions exceeded the medical restrictions provided by her physician.
By decision dated August 8, 2006, the Office denied modification of the December 17,
2004 decision.
LEGAL PRECEDENT
The Office’s regulation defines the term recurrence of disability as follows:
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical limitations.5
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she 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 or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.7 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.8 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9

5

20 C.F.R. § 10.5(x).

6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
7

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

8

Duane B. Harris, 49 ECAB 170, 173 (1997).

9

Gary L. Fowler, 45 ECAB 365, 371 (1994).

5

ANALYSIS
The Office accepted appellant’s claim for lumbar strain and exacerbation of a preexiting
L5-S1 disc herniation. In support of her claim for a recurrence of disability commencing on
November 17, 2003 appellant submitted the reports of Dr. Nyboer. On February 6, 2004
Dr. Nyboer noted that appellant returned to restricted work until December 2, 2003 when she
was seen for increased pain in her low back and radiating to her left buttock. He recommended
that she return to work on a part-time basis of no more than six hours per day, which would
allow her time to attend physical therapy. However, Dr. Nyboer did not address her disability
beginning as of November 17, 2003 or how it was related to the accepted employment injury.
On March 2, 2004 he treated appellant for an exacerbation of a L5-S1 lumbar disc herniation.
Dr. Nyboer stated that her current pain was an “exacerbation of her previous injury and is not a
new injury.” However, he did not explain how appellant’s work-related condition had worsened
such that she was no longer able to perform her limited-duty work as of November 17, 2003.
In a November 11, 2004 report, Dr. Nyboer noted that in December 2003 appellant
related that her pain was worsening which was attributed to doing more at work in July 2003.
He stated that appellant was “on temporary disability from November 18, 2003 until February 6,
2004 due to her aggravation of her preexisting back injury.” Appellant’s reaggravation was
causally related to her disc herniation at L5-S1 from her original 1998 work injury and the
“subsequent aggravation that occurred in June 2002 was the reason [appellant] was placed on
light-duty status and continues with work restrictions.” Furthermore, she did not claim that her
recurrence occurred in July 2003 but rather in November 2003 when she was presented with a
new light duty-position. It is well established that medical reports must be based on a complete
and accurate factual and medical background and medical opinions based on an incomplete or
inaccurate history are of little probative value.10 Dr. Nyboer did not offer a rationalized medical
opinion as to how appellant’s employment caused or aggravated her condition such that she had
a recurrence of disability on November 17, 2003. He did not explain how appellant’s
work-related condition had worsened such that she could no longer perform her limited-duty
work. Other reports from Dr. Nyboer did not address the cause of the claimed recurrence of
disability.
The Board also notes that appellant has not shown a change in the nature and extent of
her light-duty job requirements. Appellant submitted a January 9, 2004 statement, from
Mr. Jackson who alleged that appellant’s job changed because she began to wear “office attire”
and worked in the box section at the same time. She submitted a January 10, 2004 statement, in
which she alleged that in late October or early November 2003, she was informed by her
supervisor that the limited-duty job assignment would change. Appellant alleged that a week
after she attended the training class for the lobby monitor position, she began working the new
assignment while still working the old assignment. She stated that she worked the dual
assignments for approximately three to four weeks but that her back pain increased and she was
unable to report to work on November 17, 2003. Appellant also provided a January 14, 2004
statement, from Mr. Reynolds, who noted that appellant worked exclusively in the box area and
assisted window clerks as needed until November 2003, when she began working as the lobby
10

Douglas M. McQuaid, 52 ECAB 382 (2001).

6

stations monitor and overseeing the box section in addition to her other duties. In a December 5,
2005 statement, appellant noted that new job entailed an extensive amount of walking, standing,
lifting and bending while serving customers. She also alleged that supervisors ignored her
complaints and requests for assistance. However, Mr. Moore, a supervisor, explained the context
of appellant’s reassignment noting that the employing establishment needed a lobby monitor to
assist customers and that the position did not exceed her physician’s work restrictions. He noted
advising appellant in October 2003 about the position and stated that she would not continue
working her current assignment or have the same off days. Appellant subsequently started the
training sessions and began to perform some of the duties of the lobby director. He advised that,
on November 15, 2003, when he presented appellant with the new job offer, she would “neither
accept, reject, read, nor sign the job offer.” Mr. Moore explained that after he informed
appellant that she must accept the offer or present documentation from her physician explaining
why the position was unacceptable, she informed him the hours would not work for her.
Appellant was advised that this was the job that they needed her to perform and was within her
physical restrictions. Subsequently she contacted him to advise that she “was on bed rest and
would not be in for a while.”
The Board finds that appellant has not shown that the nature and extent of her light-duty
position changed. The Board notes that appellant received a new light-duty position which was
consistent with the restrictions recommended by her physician, Dr. Nyboer. Although appellant
preferred the schedule of her former light-duty position, there is no evidence that the new lightduty position exceeded her work restrictions that were necessitated by her employment injury.
There also is no evidence that the employing establishment did not make appropriate light-duty
work available to appellant for the period in which she claims a recurrence of disability.
Appellant submitted statements from coworkers noting that her job changed but these statements
do not show that her new duties exceeded her work restrictions. While appellant stated that she
worked both positions, there is no evidence that they exceeded her light-duty restrictions.
Instead, the record indicates that during a brief transition period between the two positions,
before appellant stopped work, she adjusted her duties between the two positions while working
within her restrictions. Thus, appellant has not shown that the nature of her light-duty position
was changed.11
For these reasons, the Board finds that appellant did not meet her burden of proof to
establish that she sustained a recurrence of disability beginning November 17, 2003 causally
related to her June 12, 2002 employment injury.
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability commencing on November 17, 2003 causally related to an accepted June 12, 2002
employment injury.

11

The Board also notes that appellant made an argument that her prescription for an ergonomic chair was not
provided. However, the record does not contain a prescription nor a decision on that matter and that issue is not
presently before the Board.

7

ORDER
IT IS HEREBY ORDERED THAT the August 8, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LAKEHURST NAVAL BASE,
Lakehurst, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1710
Issued: June 3, 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 11, 2018 appellant, through counsel, filed a timely appeal from an April 10,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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.3
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that his left
hip conditions were causally related or consequential to his accepted February 23, 2015
employment injury; and (2) whether OWCP has abused its discretion by denying appellant’s
request for total left hip arthroplasty.
FACTUAL HISTORY
On February 24, 2015 appellant, then a 52-year-old material handler, filed a traumatic
injury claim (Form CA-1) alleging that on February 23, 2015 he injured his right knee when he
slipped on ice while in the performance of duty. He did not initially stop work.
On July 6, 2015 OWCP accepted the claim for chondromalacia of the right patella; fracture
of the posterior medial tibial plateau, right; and right knee contusion. In the acceptance letter, it
advised appellant that when his claim was first received it appeared to be a minor injury that
resulted in minimal or no lost time from work and a limited amount of medical expenses were
administratively approved and paid. OWCP noted that it had reopened his claim because the
medical bills had exceeded $1,500.00. It noted that, while treating physician Dr. Jason Wong, an
osteopath Board-certified in orthopedic surgery, had indicated additional left hip diagnoses, he had
not provided medical rationale explaining how the left hip conditions were caused or aggravated
by the February 23, 2015 employment injury and/or how they developed as a consequence of the
accepted conditions. OWCP informed appellant of the type of factual and medical evidence
necessary to establish causal relationship. It afforded his 30 days to submit the necessary evidence.
In a March 6, 2015 report, Dr. Wong reviewed a right knee magnetic resonance imaging
(MRI) scan and provided an impression chondromalacia of the patella, possible fracture of the
posterior medial corner of the tibial plateau, which was asymptomatic. He released appellant to
work without restrictions.
In a June 5, 2015 report, Dr. Wong reported that appellant had developed increased pain
and discomfort to the left lower extremity as he had been favoring the right leg and had been told
in the past that he had some stress fractures to the left leg. He noted that the x-rays of the left
femur and the left hip demonstrated no fractures or osseous abnormalities, but were reflective of
mild degenerative changes to the hip. For the left hip, Dr. Wong opined that appellant had some
arthrofibrosis and possible osteoarthritis with limited range of motion. Appellant also had pain in

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the April 10, 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.

2

the distal thigh, which he related might be due to a stress fracture given his history. Dr. Wong
requested authorization for a bone scan of the left knee, left hip, and left pelvis.
In response, appellant reported that he suffered stress fractures in both legs and feet while
in the Army in 1988. He advised that he had been favoring his right injured leg and first
experienced symptoms in his left leg approximately four to six weeks after the February 23, 2015
employment injury.
An October 1, 2015 bone scan of both femurs indicated mild uptake in the left femoral
neck, which might represent a stress-type injury. The previous computerized tomography (CT)
scan also suggested bilateral avascular necrosis (AVN) of the hips. The radiologist recommended
MRI scans of both hips.
In an October 23, 2015 report, Dr. Wong noted that appellant was status post fracture of
the tibial plateau in the posterior corner of the right knee, which was resolving with physical
therapy. He provided a history that appellant did not have any discomfort to the left hip until he
had to start favoring his right leg due to his knee. Dr. Wong opined that appellant’s left hip pain
may be a stress fracture due to favoring the right lower extremity. He recommended an MRI scan
of the left hip. On November 11, 2015 appellant underwent a left hip MRI scan, which was
positive for left femoral head superior AVN, small left hip joint effusion, and left hip mild-tomoderate osteoarthrosis. In a November 20, 2015 report, Dr. Wong indicated that the MRI scan
showed extensive AVN of the left hip. He explained that, due to the fact appellant had to be
nonweight bearing from the right knee injury, the increased pressure on the left side exacerbated
the pain and discomfort in his right hip or in his left hip. Dr. Wong opined that the osteoarthritis
was chronic, but that the AVN of the left hip may have occurred due to the injury or increased
pressure in the leg. He noted that appellant ultimately would need a total hip arthroplasty.
Dr. Wong concluded that the injury to the right leg contributed to the progression and exacerbation
of the left hip pain.
In a December 11, 2015 letter of medical necessity, Dr. Wong advised that appellant had a
diagnosis of AVN of the left hip and the surgical procedure requested was a left total hip
arthroplasty. He indicated that appellant was experiencing pain in his left hip with weight bearing
and the November 5, 2015 MRI scan was significant for evidence of a superior AVN. Dr. Wong
indicated that surgery was necessary as appellant had developed painful AVN of the left hip status
post a fall, which he believed was exacerbated by having to apply pressure onto the left hip due to
an injury to the right knee. Dr. Wong continued to report on appellant’s AVN of the left hip. A
repeat left hip MRI scan was performed on March 18, 2016. In a March 25, 2016 progress report,
Dr. Wong indicated that the MRI scan showed AVN to the femoral head with a bit of collapse. He
indicated that appellant had limited range of motion and pain with ambulation. Dr. Wong reported
that appellant would like to proceed with the total hip arthroplasty.
In a June 15, 2016 report, Dr. Wong noted that he initially saw appellant on February 26,
2015 for an evaluation of his right knee following the employment injury of February 23, 2015.
He summarized each of appellant’s examinations, reporting appellant’s assessments and
diagnostic test results. Dr. Wong concluded that appellant had a final diagnosis of AVN with
collapse of the femoral head and osteoarthritis of the left hip. He indicated that it was medically
necessary to proceed with total hip arthroplasty due to the limitation in ambulation and left hip

3

pain due to the avascular changes and the osteoarthritis. Dr. Wong opined within a reasonable
degree of medical probability that appellant’s work injury to his right knee significantly
contributed and/or solely contributed to the development and worsening of the left hip AVN. He
concluded that appellant developed AVN of the left hip due to his February 23, 2015 employment
injury.
On August 18, 2016 OWCP requested that its district medical adviser (DMA) review
appellant’s medical record and a statement of accepted facts (SOAF) to determine the medical
necessity of the requested surgery and consequential injury. In an August 22, 2016 report,
Dr. Arnold Berman, the DMA, reviewed the medical records and the SOAF, and opined that the
closed fracture of appellant’s right tibia was not competent to produce AVN and osteoarthritis of
the left hip. He explained that the causation of AVN was typically metabolic and nontraumatic
unless there was a specific major injury to the hip, which was not the situation in this case. The
DMA noted that if major trauma had occurred it would have required a major facture and taken
six to seven years for the AVN and degenerative changes to develop. He opined that it was
unreasonable to conclude that the knee injury would cause AVN and there was no medical
scientific basis to support such causation conclusion. The DMA noted that the x-ray and MRI scan
findings indicated that appellant had longstanding preexisting degenerative changes of the left hip.
He opined that the left hip replacement was required for a preexisting disease, but that it was not
indicated for any injury or condition associated with the February 23, 2015 employment injury as
the causation of AVN was typically associated with metabolic and other measures such as
cortisone or major trauma.
OWCP referred appellant for a second opinion examination with Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 7, 2016 report, Dr. Askin reviewed appellant’s
history of injury and the medical records and provided findings on examination. He noted that
appellant’s 2013 imaging studies revealed bilateral hip AVN predating the occurrence. Dr. Askin
disagreed with Dr. Wong that the AVN developed as a consequence of the accepted work-related
injury and opined that, in this case, the surgery would be addressing a preexisting condition.
OWCP found a conflict in medical opinion between Dr. Wong and Dr. Askin as to whether
appellant’s AVN with collapse of the left femoral head and osteoarthritis of the left hip was a
consequence of the accepted employment injury and whether the total left hip arthroplasty was
medically necessary and causally related to appellant’s accepted conditions. It referred appellant’s
claim to Dr. Ian B. Fries, a Board-certified orthopedic surgeon, for an impartial medical evaluation
and an opinion to resolve the conflict in medical opinion evidence.
In a March 10, 2017 report, Dr. Fries reviewed appellant’s history, including the SOAF,
and noted that appellant’s accepted conditions of right knee chondromalacia patella, posteromedial
tibial plateau fracture, and contusion had all healed without subjective or objective residuals. He
accurately described the February 23, 2015 employment injury and provided a detailed evaluation
of appellant’s medical records. Dr. Fries also described appellant’s orthopedic examination and
discussed diagnostic testing. He provided impressions of symptomatic AVN of the left hip,
asymptomatic AVN of right hip, and healed right knee injury. Dr. Fries confirmed that appellant
had clear indications for a left total hip replacement to address the symptomatic idiopathic AVN.
He opined that the fall had not caused necrosis, noting that the CT scan of May 12, 2013 was
reported to confirm bilateral AVN well prior to his fall. Dr. Fries explained that AVN could be

4

seen following a major hip fracture or hip dislocation, but not due to more minor trauma. He
further opined that, any aggravation of AVN was not supported by appellant’s history, since the
first mention of hip symptoms was more than three months after his fall. Dr. Fries concluded that
appellant had a longstanding left hip avascular arthrosis and osteoarthritis and that the left hip
pathology was not a consequence of the right knee injury or the injuries sustained in the fall. He
indicated that the medical evidence supported the medical necessity for a left hip arthroplasty, but
opined that there was no causal relationship to the accepted traumatic conditions affecting the right
knee.
By decision dated August 1, 2017, OWCP denied expansion of the acceptance of
appellant’s claim to include additional diagnoses of AVN with collapse of the femoral head of the
left hip and osteoarthritis of the left hip, finding that the evidence of record was insufficient to
establish that stated conditions were causally related to the accepted February 23, 2015
employment injury. It also denied his request for authorization of total left hip arthroplasty as the
evidence of record did not support that it was medically necessary to address the effects of his
employment injury. OWCP accorded special weight to the opinion of Dr. Fries, the impartial
medical examiner (IME).
On April 12, 2017 appellant underwent a left total hip arthroplasty performed by Dr. Wong.
On August 8, 2017 appellant, through counsel, requested a hearing before a hearing
representative with OWCP’s Branch of Hearings and Review. A hearing was held on
January 17, 2018. No additional evidence was received.
By decision dated April 10, 2018, an OWCP hearing representative affirmed the August 1,
2017 decision, finding that the medical evidence of record was insufficient to establish that
appellant’s left hip AVN and subsequent surgery were causally related to or a consequence of the
accepted February 23, 2015 employment injury. She determined that the special weight of medical
opinion evidence rested with Dr. Fries, the IME, who determined that appellant’s left hip
pathology was not a consequence of the accepted right knee injury and that there were no causal
relationship to the accepted traumatic conditions affecting the right knee. The hearing
representative concluded that, based on the medical evidence of record, OWCP’s denial of the
requested total left hip arthroplasty was reasonable.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.5

4

Supra note 2.

5

See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

5

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.6
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 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.9
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.10 Thus, a subsequent
injury, be it 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.11
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.12 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.13
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

6

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).
7

J.C., Docket No. 18-1722 (issued April 15, 2019); D.G., Docket No. 17-1748 (issued June 6, 2018).

8

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10
D.H., Docket No. 18-1159 (issued February 15, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
11

See Y.P., Docket No. 17-0859 (issued December 4, 2018). Susanne W. Underwood (Randall L. Underwood), 53
ECAB 139 (2001).
12

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

13

20 C.F.R. § 10.321.

6

such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that his left hip
conditions were causally related to or consequential to his accepted February 23, 2015
employment injury.
In his October 23, 2015 report appellant’s treating physician, Dr. Wong related that
appellant did not have discomfort in his left hip until he started favoring his right leg due to his
accepted right knee injury. In his June 15, 2016 report, he advised that appellant had a final
diagnosis of AVN with collapse of the femoral head and osteoarthritis of the left hip. Dr. Wong
opined that appellant’s employment injury to his right knee significantly contributed and/or solely
contributed to the development and worsening of the left hip AVN of the left hip and that appellant
developed AVN of the left hip due to his February 23, 2015 employment injury. Dr. Askin,
OWCP’s second opinion physician, disagreed with Dr. Wong that appellant’s left hip conditions
developed as a consequence of the accepted employment injury.
OWCP properly determined that there was a conflict in medical opinion between Dr. Wong
and Dr. Askin as to whether appellant’s AVN with collapse of the left femoral head and
osteoarthritis of the left hip were causally related to or consequential to his accepted employment
injury. It referred appellant, along with a SOAF, a list of specific questions, and the medical
record, to Dr. Fries for an impartial medical evaluation and an opinion to resolve these issues.15
The Board finds that the report of Dr. Fries is sufficient to carry the special weight of the
medial evidence. In a March 10, 2017 report, Dr. Fries reviewed appellant’s history, including the
SOAF, and noted that appellant’s accepted conditions of right knee chondromalacia patella,
posteromedial tibial plateau fracture, and contusion had all healed without subjective or objective
residuals. He described appellant’s orthopedic examination and discussed diagnostic testing.
Dr. Fries provided impressions of symptomatic AVN of the left hip, asymptomatic AVN of right
hip, and healed right knee injury. However, he opined that the work-related fall did not cause
AVN, noting that the May 12, 2013 CT scan was reported to confirm bilateral AVN well prior to
the fall. Dr. Fries explained that AVN could be seen following a major hip fracture or hip
dislocation, but not due to more minor trauma. He further opined that, any aggravation of AVN
was not supported by appellant’s history, since the first mention of hip symptoms was more than
three months after his fall. Dr. Fries concluded that appellant had a longstanding left hip avascular
arthrosis and osteoarthritis and that the left hip pathology was not a consequence of the right knee
injury or the injuries sustained in the fall. In situations where the case is referred to an impartial
medical specialist for the purpose of resolving a medical conflict, the opinion of such specialist, if

14

W.M., Docket No. 18-0957 (issued October 15, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).

15
A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

7

sufficiently well rationalized and based upon a proper factual background, must be given special
weight.16
On appeal, counsel asserts that Dr. Fries’ report cannot carry the special weight of the
evidence. He erroneously argues that Dr. Fries’ failed to provide a medical opinion as to
osteoarthritis. As noted, Dr. Fries had indicated that the osteoarthritis was not a consequence of
the right knee injury or the other employment-related injuries. Counsel also cited two Board
decisions in which OWCP decisions were remanded based on the selected specialist not reviewing
relevant medical evidence pertaining to a preexisting condition and where the IME was unable to
review the complete medical record. In this case, he indicated that Dr. Fries reported the AVN
was preexisting based on a 2013 CT scan, which he did not have in his possession. However, the
CT scan results were described and compared in the MRI scan report which Dr. Wong had
submitted. The hearing representative specifically found that there was no medical evidence to
refute the accuracy of those findings. Counsel additionally asserts that Dr. Fries failed to offer an
opinion as to the aggravation of preexisting conditions, that his opinions were generalizations, and
that he mischaracterized Dr. Wong’s findings as Dr. Wong had not stated that the left hip condition
was traumatic, but that his altered gait aggravated his left hip. Dr. Fries, however, explained why
AVN was not seen or due to minor trauma. He also opined that, an aggravation of AVN was not
supported by appellant’s history, since the first mention of hip symptoms was more than three
months after his fall.
The Board finds that Dr. Fries provided a well-rationalized opinion based on a complete
background, his review of the accepted facts, the medical record, and his examination findings.
Dr. Fries’ opinion that the left hip avascular arthrosis and osteoarthritis and left hip pathology were
not a consequence of the right knee injury or the injuries sustained in the fall affecting the right
knee is entitled to special weight and represents the weight of the evidence.17
Accordingly, the Board finds that appellant has not met his burden of proof to establish
expansion of the acceptance of his claim to include additional diagnoses of AVN with collapse of
the femoral head of the left hip and osteoarthritis of the left hip.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician, which OWCP considers likely to cure, give
relief, reduce the degree or the period of disability, or aid in lessening in the amount of monthly
compensation.18 In interpreting this section of FECA, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA to ensure that an employee recovers
from his or her injury to the fullest extent possible in the shortest amount of time.19 OWCP has
16

See W.M., Docket No. 17-0337 (issued August 8, 2017); Guiseppe Aversa, 55 ECAB 164 (2003).

17

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
18

Id. at § 8103; B.L., Docket No. 17-1813 (issued May 23, 2018).

19

I.T., Docket No. 17-1012 (issued July 24, 2018); W.T., Docket No. 08-0812 (issued April 3, 2009).

8

broad administrative discretion in choosing the means to achieve this goal. The only limitation on
OWCP’s authority is that of reasonableness.20
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. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.21
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.22 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.23 Therefore, in order to prove that the
surgical procedure is warranted, appellant must submit medical evidence to show that the
procedure was for a condition causally related to the employment injury and that the surgery was
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.24
ANALYSIS -- ISSUE 2
The Board further finds that OWCP has not abused its discretion by denying appellant’s
request for total left hip arthroplasty.
As previously discussed, OWCP properly determined that a conflict existed in the medical
opinion evidence as to whether his left hip conditions were causally related to the accepted
employment injury and necessitated total hip replacement. The Board finds that OWCP properly
accorded special weight to Dr. Fries’ medical opinion as an IME.25 Dr. Fries specifically found
that, while the medical evidence supported the medical necessity for a left hip arthroplasty, there
was no causal relationship between the diagnosed left hip conditions and the accepted conditions
affecting the right knee. As previously noted he explained that appellant had longstanding left hip
avascular arthrosis and osteoarthritis, which were not causally related to the minor trauma caused
by appellant’s accepted employment injury.
The only limitation on OWCP’s authority is approving or disapproving service under
FECA is one of reasonableness.26 In the instant case, OWCP received a letter of medical necessity
from Dr. Wong for a total left arthroplasty due to AVN of the left hip. It obtained an impartial
20

See N.M., Docket No. 18-1584 (issued March 15, 2019); Mira R. Adams, 48 ECAB 504 (1997).

21

J.T., Docket No. 16-0731 (issued May 11, 2017); L.W., 59 ECAB 471 (2008).

22

N.G., Docket No. 18-1340 (issued March 6, 2019); see also Debra S. King, 44 ECAB 203, 209 (1992).

23

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

24

See N.M., supra note 20; see also Cathy B. Millin, 51 ECAB 331, 333 (2000).

25

Supra note 14.

26

See W.M., supra note 16; Daniel J. Perea, 42 ECAB 214, 221 (1990).

9

medical examination through Dr. Fries who found that, while the total left hip arthroplasty was
warranted, it was not causally related to the accepted right knee injury. OWCP therefore had
sufficient evidence upon which it made its decision to deny surgery and did not abuse its
discretion.27
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left hip
conditions were causally related to or consequential to his accepted February 23, 2015
employment injury. The Board further finds that OWCP has not abused its discretion by denying
his request for total left hip arthroplasty.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 3, 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

27

Id.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY INSPECTION SERVICE, Vienna, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1190
Issued: February 4, 2011

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 March 16, 2010 appellant filed a timely appeal from an October 28, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied her request for
reconsideration. Because more than 180 days elapsed from the most recent merit decision dated
September 8, 2009 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
her case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1 The only decision properly before the
Board is the nonmerit October 28, 2009 decision denying her request for reconsideration.
ISSUE
The issue is whether the Office properly denied appellant’s October 2, 2009 request for
reconsideration under 5 U.S.C. § 8128(a).

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On April 23, 2007 appellant, then a 26-year-old food inspector, filed a claim for an
alleged back injury she sustained in the performance of duty on April 13, 2007. On June 20,
2007 the Office accepted her claim for lumbar sprain.
On June 15, 2009 the Office received appellant’s recurrence of disability claim.
Appellant alleged that on January 29, 2009 she sustained a recurrence of her accepted back
condition. She explained that she returned to work but experienced pain in her lower back and
left shoulder and could not sit or stand for longer than 20 minutes. Appellant stopped work on
May 13, 2009 and returned on June 5, 2009.
Appellant submitted medical notes dated May 20 and June 5, 2009 which excused her
from work from May 13 until June 1, 2009. In a June 5, 2009 letter, Dr. Eric N. Codner, a
chiropractor, reported that appellant complained of low back and left shoulder pain. He noted
that she had a guarded antalgic posture and reduced range of motion in the cervical spine with a
positive cervical compression and distraction on the left side. Appellant was diagnosed with
cervical disc displacement and cervical nerve root lesion. Dr. Codner stated that based on
appellant’s history her cervical condition resulted from her April 2007 work-related accident.
On June 22, 2009 the Office advised appellant that she needed to submit additional
evidence to support her claim. It informed her that Dr. Codner’s June 5, 2009 medical report did
not provide her diagnostic test results and the record did not have any evidence of prior
diagnostic testing of a cervical condition. The Office requested that appellant submit a detailed
statement from her attending physician explaining the causal relationship between her claimed
cervical condition to the original injury and a comprehensive medical report describing her
symptoms, examination and test results, treatment provided and the effect of the treatment.
On August 11, 2009 the Office received a letter dated July 2, 2009 from Dr. Paul Baxt, an
orthopedic surgeon, who noted appellant’s complaints of low back, left leg, and left shoulder
pain and mentioned her left shoulder work-related injury. Dr. Baxt observed significant loss of
range of motion in appellant’s cervical spine with forward flexion only at 15 degrees and
limitation to forward flexion of the low back at 40 degrees. He stated that, due to appellant’s
peripheral symptomatology and significantly positive peripheral findings, he needed to conduct
nerve conduction studies of the upper and lower extremities to make a diagnosis. Dr. Baxt also
submitted a nerve conduction study dated July 2, 2009.
On August 21, 2009 the Office informed appellant that a medical report from Dr. Baxt
should be submitted following diagnostic testing to explain the diagnosis of her condition. There
was no response.
In a September 8, 2009 decision, the Office denied appellant’s recurrence of disability
claim based on insufficient evidence establishing that her current medical condition resulted
from the accepted June 20, 2007 work injury.

2

On October 2, 2009 the Office received appellant’s request for reconsideration. In an
undated statement, appellant noted that her doctor’s office had failed to submit her medical
records but had since sent the records. She did not submit any medical evidence.
In an October 28, 2009 decision, the Office denied appellant’s request for reconsideration
on the grounds that she failed to submit relevant or pertinent evidence sufficient to warrant
further merit review of the case.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether to review an award for or against compensation.2
The Office’s regulations provide that it may review an award for or against compensation at any
time on its own motion or upon application. The employee shall exercise his right through a
request to the district Office.3
To require the Office to reopen a case for merit review pursuant to the Act, the claimant
must provide evidence or an argument that: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.4
A request for reconsideration must also be submitted within one year of the date of the
Office decision for which review is sought.5 A timely request for reconsideration may be
granted if the Office determines that the employee has presented evidence or provided an
argument that meets at least one of the requirements for reconsideration. If the Office chooses to
grant reconsideration, it reopens and reviews the case on its merits.6 If the request is timely but
fails to meet at least one of the requirements for reconsideration, the Office will deny the request
for reconsideration without reopening the case for review on the merits.7
ANALYSIS
The Board finds that the Office properly denied appellant’s October 2, 2009 request for
reconsideration because the request did not meet any of the requirements under 20 C.F.R.
2

5 U.S.C. § 8128(a); see also F.R., 61 ECAB __ (Docket No. 09-575, issued January 4, 2010); W.C., 59 ECAB
372 (2008).
3

20 C.F.R. § 10.605; see also R.B., 61 ECAB __ (Docket No. 09-1241, issued January 4, 2010); A.L., 60 ECAB
__ (Docket No. 08-1730, issued March 16, 2009).
4

Id. at § 10.606(b); see also L.G., 61 ECAB __ (Docket No. 09-1517, issued March 3, 2010); C.N., 60 ECAB __
(Docket No. 08-1569, issued December 9, 2008).
5

Id. at § 10.607(a).

6

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

7

Id. at § 10.608(b); E.R., 61 ECAB __ (Docket No. 09-1655, issued March 18, 2010); Y.S., 60 ECAB __ (Docket
No. 08-440, issued March 16, 2009).

3

§ 10.606(b). Appellant did not allege that the Office erroneously applied or interpreted a specific
point of law. She also failed to advance a relevant legal argument or to submit relevant and
pertinent evidence not previously considered by the Office.
On reconsideration, appellant contended that her doctor’s office had failed to submit her
medical records to the Office in time for the September 8, 2009 decision, but had since sent such
records. The Office had denied her recurrence of disability claim because Dr. Baxt did not
provide a report which substantiated a firm diagnosis of her condition. Appellant failed to
submit any new or relevant medical evidence pertaining to her claim; rather, she merely noted
that her physician’s office had sent such records. She failed to provide new relevant evidence or
advance a new legal argument as required under 20 C.F.R. § 10.606(b). As appellant’s request
for reconsideration did not meet any of the requirements warranting reconsideration, the Office’s
decision to deny reconsideration was proper.8
CONCLUSION
The Board finds that the Office did not abuse its discretion by denying appellant’s request
for reconsideration pursuant to 5 U.S.C. § 8128(a).9

8

S.J., 60 ECAB __ (Docket No. 08-2048, issued July 9, 2009); C.N., 60 ECAB __ (Docket No. 08-1569, issued
December 9, 2008).
9

The Board notes that appellant submitted additional evidence following the October 28, 2009 nonmerit decision.
Since the Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the nonmerit decision of the Office of Workers’
Compensation Programs dated October 28, 2009 is affirmed.
Issued: February 4, 2011
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

5