United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS
VETERANS HEALTH ADMINISTRATION,
Chillicothe, OH, Employer
__________________________________________

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

Docket No. 10-1378
Issued: March 14, 2011

Case Submitted on the Record

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

JURISDICTION
On April 22, 2010 appellant, through his attorney, filed a timely appeal from a March 30,
2010 merit decision of the Office of Workers’ Compensation Programs that denied certain
conditions as causally related to his accepted employment injury. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his claim should
be accepted for aggravation of bilateral ulnar neuropathies causally related to his accepted
employment injury.
FACTUAL HISTORY
On September 30, 2008 appellant, then a 44-year-old housekeeping aide, sustained a back
injury while buffing floors and pushing a bed across the floor. He stopped work that day and

returned to modified work on October 12, 2008. The Office accepted the claim for lumbar and
thoracic sprain.1
An October 24, 2008 magnetic resonance image (MRI) scan showed an unremarkable
alignment of the thoracic spine. There was mild posterior spurring and diffuse disc bulge at
multiple thoracic levels spanning T6 through T12 but no dominant disc herniation or significant
central canal stenosis and no epidural mass or cyst. A November 18, 2008 electromyogram
(EMG) revealed severe acute chronic bilateral ulnar mononeuropathies at the elbow and no
evidence of radiculopathy, plexopathy or polyneuropathy.
In a November 5, 2008 report, Dr. Carl E. Otten, Board-certified in occupational
medicine and a treating physician, diagnosed cervical, thoracic and lumbar strains. He advised
that appellant’s left hand was continuously tingly since the date of injury. Appellant denies any
prior neck or left upper extremity problems. He had prior right elbow surgery in 2001 and an
EMG at that time. In December 2 and 16, 2008 reports, Dr. Otten requested that the Office
accept appellant’s claim for a bilateral ulnar neuropathy condition. He checked the box “yes” in
response to whether he believed appellant’s condition was caused or aggravated by his
employment. Dr. Otten advised that appellant could do sedentary work with no lifting over 15
pounds.
By letter dated January 8, 2009, the Office provided Dr. Otten with a statement of
accepted facts and noted that appellant engaged in weight lifting. It requested that he explain
how the reported work incident caused the claimed injury.
In a January 9, 2009 report, Dr. Otten diagnosed cervical thoracic and lumbar strains.
He noted that there was a “pending” diagnosis of aggravation of bilateral ulnar neuropathies.
Dr. Otten advised that a November 17, 2008 EMG revealed severe bilateral ulnar neuropathies.
He recommended sedentary work level, with no lifting greater than 15 pounds occasionally.2
On March 2, 2009 the Office accepted a cervical sprain, aggravation of cervical
spondylosis, aggravation of lumbar facet arthritis and aggravation of cervical degenerative disc
disease. It advised appellant that a second opinion examination would be scheduled to develop
whether the September 30, 2008 work injury caused or contributed to a bilateral ulnar
neuropathy condition. In a separate March 2, 2009 letter, the Office referred him to
Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon.
In a March 29, 2009 report, Dr. Fisher described appellant’s history of injury and
treatment. He examined him and found no objective clinical findings over the neck, thoracic or
lumbar regions. Dr. Fisher advised that appellant only had “generalized subjective complaints
with a great deal of pain magnification symptoms over the entire back from the neck to the low
back area.” He noted that the pain symptoms did not correspond with any positive objective
1

Appellant’s nonwork medical history is significant for a 1982 neck injury while in the military, rectal cancer,
and hypertension. He underwent lymph node removal in 2007, gastric reconstruction and anal reconstruction.
2

Appellant stopped work to undergo nonwork-related left elbow surgery on January 29, 2009. He returned to his
limited-duty position on March 6, 2009.

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findings over the neck or back area. Dr. Fisher stated that the only objective finding was due to
recent nonwork-related left elbow surgery for which there was some decreased sensation over
the left hand. His review of the medical record revealed no mention of any ulnar nerve
complaints or problems at the elbows or numbness or tingling. Dr. Fisher added that the first
note of any complaints was on November 5, 2008 when appellant was seen by Dr. Otten. He
advised that the November 2008 diagnostic reports of the upper extremities revealed chronic
severe ulnar nerve neuropathy at the elbows bilaterally. Dr. Fisher opined that the condition was
not directly caused by the work injury of September 30, 2008 as it was preexisting and became
symptomatic in November 2008, two months after the injury occurred. He stated that it was not
aggravated, accelerated or precipitated by the September 30, 2008 injury and was completely
unrelated. Dr. Fisher found that appellant was able to return to his regular duties without
restrictions.
The Office provided Dr. Otten with a copy of Dr. Fisher’s March 29, 2009 report and
requested a response regarding his findings. On May 7, 2009 Dr. Otten concurred with
Dr. Fisher that appellant appeared to magnify some of his symptoms; but reiterated his opinion
that appellant had ulnar neuropathy and advised that appellant was unable to return to his duties
as a housekeeper. He continued to treat him and submit reports.
On July 7, 2009 the Office referred appellant to Dr. Michael S. Lefkowitz, a Boardcertified orthopedic surgeon, for an impartial evaluation to resolve the conflict in medical
opinion between Drs. Fisher and Otten regarding the extent of appellant’s work-related condition
and whether his upper extremity condition was related to the accepted work injury.
In a July 30, 2009 report, Dr. Lefkowitz reviewed appellant’s history and reported
findings on examination. He noted that appellant had numbness along the medial side of his left
elbow and a well-healed incision. Dr. Lefkowitz noted subjective decreased sensation in his left
fourth and fifth fingers. A November 18, 2008 EMG revealed severe acute chronic bilateral
ulnar neuropathies at the elbow with no evidence of radiculopathy, plexopathy or
polyneuropathy identified. Dr. Lefkowitz advised that other diagnostic reports revealed multiple
thoracic diffuse disc bulges and mild posterior spurring expanding from T6 through T12. There
was similar narrowing and foraminal narrowing at the C5-6, C6-7 levels with some nerve-root
impingement. Dr. Lefkowitz advised that appellant had a history of tobacco abuse of one pack a
day for 15 years, that conflicted with the self-reported information from appellant. He noted that
the initial injury was a spinal injury that occurred on September 30, 2008 while appellant was
trying to bend over and move a 400-pound wooden bed while also holding a buffer.
Dr. Lefkowitz stated that appellant displayed significant signs of symptom magnification. He
noted that the MRI scan of the lumbar spine showed an absence of any central canal stenosis,
herniated discs, fractures or osseous metastatic lesions. On the other hand, appellant states that
he had pain essentially around the clock, was unable to do any significant activity, and held
himself in a position which would aggravate, not relieve, pain from degenerative disc disease. “I
do believe that his objective findings from the MRI scan do not correlate with the subjective
complaints of pain.” The description of numbness in both the dorsum and plantar aspect of both
feet associated with pain and numbness in his right thigh and calf did not make anatomic sense.
Dr. Lefkowitz advised that the MRI scan confirmed that appellant had degenerative disc disease
of the cervical spine and opined that he likely had an aggravation of his lumbar facet arthritis in
addition to a previous lumbar strain. He advised that the cervical and thoracic strains, which

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were present at the time of injury were not present on his examination. Dr. Lefkowitz opined
that the chronic bilateral ulnar neuropathies, despite an acute component in November 2008,
were not related to the September 30, 2008 work injury. He added that he would not certify this
as an aggravation of previously long-standing bilateral ulnar neuropathies nor would he certify it
as a new injury from the September 30, 2008 work injury. Dr. Lefkowitz clarified that he did not
believe the bilateral ulnar neuropathy was aggravated, caused or related to his September 30,
2008 work injury. He advised that appellant could not return to his housekeeping aid duties.
Dr. Lefkowitz explained that appellant continued to have an aggravation of his lumbar facet
arthritis and that frequently lifting 50 pounds and other associated activities at work would
materially aggravate his allowed condition. He completed a work capacity restriction and noted
that appellant could return to work with restrictions.
In a May 19, 2009 report, Dr. Kort M. Gronbach, a Board-certified anesthesiologist,
noted that appellant had known spondylitic changes in the cervical and lumbar region and
received epidural steroids. He advised that appellant’s degenerative spondylitic changes in the
cervical spine involved both the disc and facet joints and opined that it was likely related to his
spondylosis. Dr. Gronbach requested authorization for medial branch blocks. Appellant
underwent the procedures on September 8 and 22, 2009.
In a September 30, 2009 decision, the Office denied appellant’s request to accept his
claim for aggravation of bilateral ulnar neuropathies. It found that the weight of the medical
evidence, represented by Dr. Lefkowitz, established that this condition was not caused or
aggravated by the September 30, 2008 work injury.
Appellant’s representative requested a telephonic hearing, which was held on
January 14, 2010. In an October 6, 2009 report, Dr. Otten reiterated his diagnoses. In a
December 8, 2009 report, Dr. James Fleming, a Board-certified orthopedic surgeon, diagnosed
mild lumbar degenerative disc disease and mild cervical spondylosis.
In a January 20, 2010 report, Dr. Slyun Li, an orthopedist, noted appellant’s history and
stated that he had significant pain involving the neck, back and legs, with pronounced pain at the
site of the injury. However, imaging studies did not show significant bony structural
abnormalities. Dr. Li opined that the pain was likely related to appellant’s musculature or
secondary muscular spasms, noting that it was “unclear why the pain is beyond the site of injury
and quite diffuse.” He saw no evidence of cervical, thoracic or lumbar radiculopathy.
By decision dated March 30, 2010, an Office hearing representative affirmed the
September 30, 2009 decision.
LEGAL PRECEDENT
When an employee claims that he or she sustained an injury in the performance of duty,
the employee must submit sufficient evidence to establish that he or she experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The
employee must also establish that such event, incident or exposure caused an injury. Once an
employee establishes an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, which the employee

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claims compensation, is causally related to the accepted injury.3 To meet his or her burden of
proof, an employee must submit a physician’s rationalized medical opinion on the issue of
whether the alleged injury was caused by the employment incident.4 Medical conclusions
unsupported by rationale are of diminished probative value and are insufficient to establish
causal relation.5
ANALYSIS
The Office initially accepted the claim for lumbar and thoracic strain and later expanded
the claim to include cervical sprain, aggravation of cervical spondylosis, aggravation of lumbar
facet arthritis and aggravation of cervical degenerative disc disease. Appellant asserted that his
bilateral ulnar neuropathies were due to the work injury. The Office found that a conflict in
medical opinion was created between his physician, Dr. Otten, who found that appellant had
work-related bilateral ulnar neuropathies and Dr. Fisher, the second opinion physician, who
determined that the bilateral ulnar neuropathies were preexisting. It referred appellant to
Dr. Lefkowitz, a Board-certified orthopedic surgeon and impartial medical examiner, to resolve
the conflict.
Section 8123(a) of the Federal Employees’ Compensation Act6 provides, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician, who shall make an
examination.7 In situations were there are opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.8
The Board finds that the thorough and well-documented report of Dr. Lefkowitz, the
impartial specialist selected to resolve the medical conflict, is entitled to special weight.
Dr. Lefkowitz noted appellant’s history, examined him and reviewed the results of diagnostic
testing. He advised that appellant showed “significant signs of symptom magnification” as test
results did not correlate with appellant’s reports of pain “essentially around the clock” nor with
him holding “himself in a position, which if anything would logically aggravate, not relieve pain
from degenerative disc disease.” Dr. Lefkowitz explained that the MRI scan findings supported
that appellant had degenerative disc disease of the cervical spine which resulted in an
aggravation of his lumbar facet arthritis in addition to the previous lumbar strain. Regarding the
chronic bilateral ulnar neuropathies, he noted findings of diagnostic testing and opined that,
while present in November 2008, they were not related to the September 30, 2008 work injury.
3

See Leon Thomas, 52 ECAB 202 (2001).

4

See Gary J. Watling, 52 ECAB 278 (2001).

5

Albert C. Brown, 52 ECAB 152 (2000).

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8123(a).

8

Barbara J. Warren, 51 ECAB 413 (2000).

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Furthermore, Dr. Lefkowitz did not believe that it was as an aggravation of previously
long-standing bilateral ulnar neuropathies. He concluded that the bilateral ulnar neuropathies
were not caused or aggravated by the September 30, 2008 work injury.
The Office properly accorded special weight to the impartial medical examiner’s July 30,
2009 findings. The Board finds that Dr. Lefkowitz’ report is sufficiently well rationalized and
based on a proper factual background and represents the weight of the medical evidence and
establishes that the bilateral ulnar neuropathy conditions were not caused by the accepted work
injury.
The Office received additional reports from Dr. Otten. However, Dr. Otten merely
reiterated previously stated findings and conclusions regarding appellant’s condition. As he had
been on one side of the conflict in the medical opinion that the impartial specialist resolved, the
treating physician’s reports were insufficient to overcome the special weight accorded the
impartial specialist or to create a new medical conflict.9 The additional reports from Dr. Otten
do not contain any new information or rationale sufficient to overcome or create a new conflict
with the opinion of Dr. Lefkowitz. The Board also notes that he was in agreement that appellant
was “magnifying” some of his symptoms.
The Office received several reports from other treating physicians. In a May 19, 2009
report, Dr. Gronbach noted that appellant had degenerative spondylitic changes throughout the
cervical spine involving both the disc and facet joints and opined that it was likely related to his
spondylosis. The Office also received a December 8, 2009 report from Dr. Fleming who
diagnosed mild lumbar degenerative disc disease and mild cervical spondylosis. In a January 20,
2010 report, Dr. Li noted that he saw evidence of cervical, thoracic or lumbar radiculopathy.
However, none of the physicians provided any opinion regarding the bilateral ulnar neuropathy
condition and its relation to appellant’s work injury. Medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.10 As these physicians did not provide a rationalized opinion to explain
how the bilateral ulnar neuropathy was causally related to the September 30, 2008 employment
injury, these reports are of little probative value.11
The mere fact that a disease manifests itself during a period of employment does not raise
an inference that there is a causal relationship between the two. Neither the fact that the disease
became apparent during a period of employment, nor the belief of appellant that the disease was
caused or aggravated by employment conditions, is sufficient to establish causal relation.12

9

See supra note 8; Alice J. Tysinger, 51 ECAB 638 (2000).

10

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

11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
12

Lucrecia M. Nielsen, 42 ECAB 583, 593 (1991); Joseph T. Gulla, 36 ECAB 516, 519 (1985).

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CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that his
claim should be expanded to include aggravation of bilateral ulnar neuropathies as causally
related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 18-1253
Issued: April 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 6, 2018 appellant filed a timely appeal from a March 2, 2018 merit decision and
an April 9, 2018 nonmerit 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
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted October 7, 2017 employment incident; and (2) whether

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2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 9, 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.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 9, 2017 appellant, then a 46-year-old lead firefighter, filed a traumatic injury
claim (Form CA-1) alleging that on October 7, 2017 he sustained right shoulder pain when a left
front tire blew out on a vehicle in which he was riding while in the performance of duty. The
employing establishment acknowledged that the alleged incident occurred in the performance of
duty and it agreed that its knowledge of the facts of the incident were in agreement with appellant ’s
statement. Appellant stopped work that day and returned to full-duty work without restrictions on
October 13, 2017.3
In a development letter dated October 17, 2017, OWCP advised appellant that he had
submitted insufficient evidence to establish his claim. It informed him of the type of factual and
medical evidence needed and attached a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary information.
Appellant submitted one page of a ten-page “patient summary” report dated October 7,
2017, which noted that the care provider was Dr. Jeremy P. Skotko, Board-certified in emergency
medicine, and that he was discharged with follow-up instructions. This summary notes in the
diagnosis section of the report “MVC (motor vehicle collision).”4
By decision dated November 16, 2017, OWCP found that appellant had established that
the October 2, 2017 incident occurred as alleged, but denied the claim finding that he had not
submitted medical evidence containing a diagnosis in connection with this incident.
OWCP subsequently received a series of reports dated October 7, 2017. The reports
included pre-arrival and triage notes by Ashlee A. Sumner, a registered nurse, as well as a
treatment and procedure note by Stephanie R. Mitchell, a registered nurse. In a final report,
Dr. Skotko noted the history of the October 7, 2017 incident and appellant’s complaints of right
shoulder pain with tingling in his fingers. He noted that appellant shared his history of multiple
surgeries to the right shoulder. Dr. Skotko noted examination findings of tenderness to palpation
of the right shoulder. He noted his impression of an “MVC” and recommended that appellant use
an arm sling for comfort. An accompanying right shoulder x-ray report by Dr. Amit Kumar
Sanghi, an osteopath Board-certified in diagnostic radiology, who found no fracture or dislocation,
normal mineralization, normal soft tissues, no significant degenerative changes, and prior “rotator
cuff ankle repair.” Dr. Sanghi found no acute findings.
On December 8, 2017 appellant requested reconsideration of OWCP’s November 16, 2017
decision. With his request, he resubmitted the October 7, 2017 final report of Dr. Skotko.

3

The record includes a position description for lead firefighter and a January 8, 2017 Notification of Personnel
Action Standard Form (Form SF-50).
4

The Board notes that this document contains the markings from a facsimile machine which indicate that not all
pages of the document as submitted to OWCP are contained in the record as presented to the Board.

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By decision dated March 2, 2018, OWCP denied modification of its November 16, 2017
decision.
On March 29, 2018 appellant again requested reconsideration.
With his request, appellant submitted a March 20, 2018 update of Dr. Skotko’s October 7,
2017 final report. The report was identical to his final report previously submitted except that
Dr. Skotko provided an updated impression to include shoulder pain.
By decision dated April 9, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
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 of FECA,5 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.6 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. 7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence to
establish that the employment incident caused a personal injury. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her condition relates to
the employment incident. 8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship. 9 The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

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).
8

See B.B., Docket No. 19-1541 (issued March 2, 2020); Shirley A. Temple, 48 ECAB 404, 407 (1997); John J.
Carlone 41 ECAB 354, 356-57 (1989).
9

S.A., Docket No. 19-1765 (issued March 13, 2020); T.H., 59 ECAB 388 (2008).

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the relationship between the diagnosed condition and the specific employment factors identified
by the employee.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted October 7, 2017 employment incident.
In support of his claim, appellant has submitted medical documentation from his October 7,
2017 treatment with Dr. Skotko. In the initial October 7, 2017 “patient summary,” which noted
that Dr. Skotko was the care provider, the “diagnosis section” listed an “MVC.” Appellant
subsequently provided Dr. Skotko’s October 7, 2017 final report which included physical
examination findings and noted his impression of an “MVC.” While these reports establish that a
motor vehicle incident occurred on October 7, 2017, neither report provides a valid diagnosis. The
mere acknowledgment of how an incident occurred, or that it caused an injury, does not constitute
a valid medical diagnosis necessary to establish fact of injury. 11
An October 7, 2017 report by Dr. Sanghi noted diagnostic findings from x-rays completed
on that date. However, the Board has held that diagnostic studies lack probative value, as to the
issue of causal relationship, as they do not address whether the employment incident caused any
of the diagnosed conditions. 12
Appellant also presented notes from Ms. Mitchell and Ms. Sumner dated October 7, 2017.
However, these notes do not constitute competent medical evidence because a nurse is not
considered a “physician” as defined under FECA. 13 As such, this evidence is also insufficient to
meet appellant’s burden of proof.
As appellant has not submitted medical evidence establishing a medical condition in
relation to the accepted October 7, 2017 employment incident, the Board finds that he has not met
his burden of proof to establish his claim.
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.

10

D.J., Docket No. 19-0130 (issued January 29, 2020).

11

See G.W., Docket No. 16-0517 (issued April 27, 2016).

12

See J.S., Docket No. 17-1039 (issued October 6, 2017).

13

See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by state law).

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LEGAL PRECEDENT -- ISSUE 2
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 own motion or on application. 14
To require OWCP to reopen a case for merit review under section 8128(a), OWCP ’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP. 15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 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. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, or advance a new and relevant legal argument not previously considered.
As such, he was not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under 20 C.F.R. § 10.606(b)(3).
With his request for reconsideration appellant submitted an updated version of
Dr. Skotko’s final report dated October 7, 2017. The report was identical to the October 7, 2017
final report previously of record except that, in the newly submitted report, Dr. Skotko also
provided a new impression of “shoulder pain.” The Board has held that evidence which repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute

14

5 U.S.C. § 8123(a); L.S., Docket No. 19-1790 (issued March 11, 2020).

15

20 C.F.R. § 10.606(b)(3); L.S., id.; D.K., 59 ECAB 141 (2007).

16

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 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees ’ Compensation
System. Chapter 2.1602.4b.
17

Id. at § 10.608(a); see J.W., Docket No. 19-1795 (issued March 13, 2020).

18

Id. at § 10.608(b); see C.H., supra note 6.

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a basis for reopening the merits of a case. 19 This updated report also fails to provide a valid medical
diagnosis and therefore is irrelevant to the underlying issue in the claim as the Board has held that
pain is a symptom, not a medical diagnosis.20 Thus, he is not entitled to a review of the merits of
his claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).
Accordingly, appellant has not met any of the requirements of 20 C.F.R. § 10.606(b)(3).
Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted October 7, 2017 employment incident. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 9 and March 2, 2018 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: April 23, 2020
Washington, DC
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

19

A.K., Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019);
Richard Yadron, 57 ECAB 207 (2005).
20

See T.G., Docket No. 19-0904 (issued November 25, 2019).

21

A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued April 10, 2017); A.M.,
Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); 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 20 C.F.R. § 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
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, SOUTH RIVER POST
OFFICE, South River, NJ, Employer
__________________________________________
Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 18-1558 &
18-1568
Issued: June 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On August 13, 2018 appellant, through counsel, filed timely appeals from May 15 and 16,
2018 decisions of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the
Appellate Boards assigned Docket Nos. 18-1558 and 18-1568.
On January 2, 2013 appellant, then a 51-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 2012 she injured her back and knees twisting
to avoid a rushing dog while in the performance of duty. OWCP assigned File No. xxxxxx701 to
this claim and on March 21, 2013 it accepted her claim for lumbosacral sprain and left knee sprain.
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 May 15 and 16, 2018 decisions, 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.

Appellant alleged additional left knee conditions arising from the December 26, 2012 employment
injury. By decision dated July 13, 2016, OWCP denied appellant’s claim for the additional
conditions of left knee anterior cruciate ligament tear and left lateral meniscal tear. On July 18,
2016 appellant, through counsel, requested an oral hearing before an OWCP hearing
representative. By decision dated May 30, 2017, OWCP’s hearing representative denied
appellant’s additional left knee conditions noting that there was no rationalized medical opinion
evidence of record addressing causal relationship between her current diagnosed left knee
conditions and her accepted December 26, 2012 employment injury.
On August 15, 2016 appellant filed a second traumatic injury claim (Form CA-1) alleging
that she experienced a sharp pain in her lower back while lifting a tub of relay mail while in the
performance of duty.3 This claim was assigned OWCP File No. xxxxxx352. By decision dated
September 27, 2016, OWCP denied the August 15, 2016 traumatic injury claim finding that
appellant had not established causal relationship between her diagnosed back condition and the
accepted employment incident. On September 30, 2016 appellant, through counsel, requested an
oral hearing with an OWCP hearing representative. By decision dated May 26, 2017, OWCP’s
hearing representative denied appellant’s August 15, 2016 traumatic injury claim finding that she
had not established causal relationship between the accepted employment incident and her
diagnosed low back or left hip conditions.
On February 14, 2018 appellant, through counsel, requested reconsideration of the May 30,
2017 OWCP decision. On February 16, 2018 reconsideration of the May 26, 2017 OWCP
decision was also requested. In support of these requests, counsel asserted that appellant’s case
files (File No. xxxxxx701 and File No. xxxxxx352) should be combined. He also provided
additional evidence that appellant sustained left hip injuries as a result of her accepted
December 26, 2012 employment injury and her accepted August 15, 2016 employment incident.
By decision dated May 15, 2018, OWCP denied modification of the May 30, 2017 decision. By
decision dated May 16, 2018, it denied modification of the May 27, 2017 decision.
The Board has duly considered the matter and finds that the case is not in posture for
decision. OWCP’s procedures provide that cases should be combined where correct adjudication
depends on cross-referencing between files and where two or more injuries occur to the same part
of the body.4
Appellant filed two traumatic injury claims alleging that she sustained injuries to her back
and left hip.5 For a full and fair adjudication, the claims in File Nos. xxxxxx701 and xxxxxx352
should be combined, pursuant to OWCP procedures.6 This will allow OWCP to consider all
3

On August 15, 2016 the employing establishment provided appellant with an authorization for examination (Form
CA-16) which she did not have a physician complete.
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

Appellant also asserted additional conditions of her left knee due to the December 26, 2012 employment injury
which were not accepted by OWCP.
6

Supra note 4 at Chapter 2.400.8(c)(1); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April 18, 2018).

relevant claim files in developing this claim. Moreover, to consider appellant’s appeal in
piecemeal fashion, as presented to the Board, could result in inconsistent results. It is the Board’s
policy to avoid such an outcome.7
These cases must be remanded to OWCP to combine the case records for File Nos.
xxxxxx701 and xxxxxx352. Following this and such other development as deemed necessary,
OWCP shall issue a de novo merit decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the May 16 and 15, 2018 decisions of the Office of
Workers’ Compensation Programs are set aside and the cases are remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: June 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7

See L.S., id.; William T. McCracken, 33 ECAB 1197 (1982).


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

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

Docket No. 16-0135
Issued: March 9, 2016

Case Submitted on the Record

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

JURISDICTION
On October 29, 2015 appellant filed a timely appeal from a September 9, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $515.69 due to
incorrect life insurance premium deductions from August 9, 2014 to May 2, 2015, and
(2) whether OWCP properly denied waiver of recovery of the overpayment.

1

Appellant has not appealed an August 6, 2015 OWCP decision denying a schedule award. She did not identify
this decision, and her arguments on appeal were limited to overpayment of compensation issues. See 20 C.F.R.
§ 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has previously been before the Board. There have been six traumatic injuries to
appellant’s back accepted by OWCP: a lumbar strain on December 19, 1981 (File No.
xxxxxx669); acute low back strain, cervical strain, and psychogenic pain disorder on
December 17, 1985 (File No. xxxxxx047); aggravation of degenerative disc disease C5-6 and
C6-7 on May 10, 1988 (File No. xxxxxx048), cervical strain, lumbar strain, and herniated C6-7
disc on November 28, 1988 (File No. xxxxxx412); lumbar strain on June 19, 1999 (File No.
xxxxxx644) and aggravation of preexisting cervical spine conditions on November 23, 2005
(File No. xxxxxx891).3
By decision dated November 13, 1985, OWCP found, with respect to the December 19,
1981 employment injury, that appellant was not entitled to continuing compensation for wageloss or medical benefits after September 9, 1982. It noted that the thermogram was normal and
previous tests were within normal limits. By decision dated April 19, 2000, OWCP denied merit
review of the claim. In a decision dated April 12, 2002, the Board affirmed the April 19, 2000
decision.4 With respect to the November 13, 1985 decision, OWCP had denied a reconsideration
request on July 1, 2009. The Board affirmed this decision on June 28, 2010.5 Appellant again
requested reconsideration of the November 13, 1985 decision, which was denied by OWCP on
September 4, 2014. By decision dated July 29, 2015, the Board affirmed the September 4, 2014
decision.6
The record indicates that appellant began receiving wage-loss compensation, pursuant to
her claims filed from December 17, 1985 through November 28, 1988. As of March 1, 1997, she
was working four hours and receiving compensation reduced by actual earnings. OWCP
compensation payments indicate that the pay rate date was November 28, 1988, the date of
injury for the cervical strain, lumbar strain, and herniated C6-7 disc noted above. The pay rate
was reported as $560.29 per week. The compensation amount was adjusted to reflect actual
earnings.
By decision dated November 22, 2006, the Board affirmed OWCP decisions dated
May 27 and January 28, 2005, denying a claimed recurrence of disability commencing
April 2004 causally related to appellant’s cervical condition.7
Appellant was paid compensation from December 19, 2010 to May 10, 2013 pursuant to
a schedule award. Compensation payments, adjusted for actual earnings, commenced on
May 11, 2013. The compensation payment for the period May 11 to June 29, 2013 indicated that

3

The master file for these claims is File No. xxxxxx047.

4

Docket No. 00-2528 (issued April 12, 2002).

5

Docket No. 09-2258 (issued June 28, 2010).

6

Docket No. 15-0825 (issued July 29, 2015).

7

Docket No. 06-0263 (issued November 22, 2006).

2

appellant’s current pay rate for the date-of-injury position was $1,010.12, with her having actual
earnings of $505.06 per week. No deductions were made for life insurance.
The record indicates that appellant worked four hours on July 23, 2014 and then stopped
working. OWCP accepted that no work was available and began paying her temporary total
disability. The employing establishment advised OWCP by letter dated November 7, 2013, that
appellant’s salary on July 24, 2013 was $53,840.00 per year, and her optional life insurance
(OLI) code was K0. The employing establishment indicated that it had paid OLI premiums
through July 24, 2013. A supplemental payment covering the period July 24 to September 20,
2013 indicated that OLI premiums had been deducted based on a coverage amount of
$53,839.56. Another supplemental payment covering the period September 21 to December 14,
2013 indicated that OLI premiums had been deducted based on coverage of $52,526.00.
As of December 15, 2013, the compensation payments indicated that deductions of
$62.40 were made for OLI under code K0, with the annual pay rate of $29,135.08. This
represented the November 28, 1988 compensation pay rate of $560.29 per week. OWCP advised
appellant by letter dated December 26, 2014 that she would receive compensation on the
periodic rolls. The OLI deduction was reported as $62.40.
By letter to OWCP dated March 25, 2015, the Office of Personnel Management (OPM)
“Retirement Operations Center” indicated that appellant was eligible to continue Federal
Employees Group Life Insurance (FEGLI) coverage. It reported that the final base salary was
$55,574.00. The code reported was K0, basic life insurance with 75 percent reduction, and
option B, two times salary. OPM indicated that premium deductions by OWCP were to
commence as of August 9, 2014. An OWCP memorandum dated March 25, 2015 indicated that
OPM had reported that appellant had continued eligibility for postretirement basic life insurance
(PRBLI) at 75 percent reduction with Option B. The memorandum states that per OPM, the
PRBLI coverage should begin on August 9, 2014.
The record indicates that as of May 3, 2015, OWCP began deducting $116.48 for OLI
from every 28 day payment. The coverage amount was reported as $55,574.00.
OWCP sent appellant a letter dated August 5, 2015, advising her of a preliminary
determination that an overpayment of compensation in the amount of $515.69 had been created.
The preliminary determination notes that information from OPM established the base salary for
life insurance purposes as $55,574.00 annually. According to OWCP, for the period August 9,
2014 to May 2, 2015, $595.03 had been deducted for OLI premiums, but it should have deducted
$1,110.72.8 Therefore, an overpayment of $515.69 was created. It found that appellant was not
at fault in creating the overpayment, and an overpayment recovery questionnaire (OWCP-20)
was enclosed.
On September 8, 2015 appellant submitted an August 26, 2015 letter. She indicated that
she had not been notified of a salary change, and inquired as to whether her compensation pay

8

The preliminary determination states that the amount actually deducted was $593.03, but a memorandum in the
file indicates that $595.03 was deducted from August 9, 2014 to May 2, 2015.

3

rate should match her salary for life insurance purposes. Appellant also asserted that she had a
previous overpayment and to repay the current overpayment would be a financial hardship.9
By decision dated September 9, 2015, OWCP finalized its determination of a $515.69
overpayment of compensation. It denied waiver of recovery of the overpayment, finding that
appellant had not submitted evidence sufficient to warrant waiver.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI program, most civilian employees of the Federal Government are
eligible to participate in basic life insurance and one or more of the options.10 The coverage for
basic life is effective unless waived11 and premiums for basic and optional life coverages are
withheld from the employee’s pay.12
FECA and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue his or her basic life insurance coverage without cost under
certain circumstances13 and may also retain the optional life insurance.14 At separation from the
employing establishment, the FEGLI insurance will either terminate or be continued under
“compensationer” status.15 If the compensationer chooses to continue basic and optional life
insurance coverage, the schedule of deductions made while the compensationer was an employee
will be used to withhold premiums from his or her compensation payments.16 Thus while
receiving disability compensation in lieu of retirement benefits, the former employee is
responsible for all insurance premiums.17 When FEGLI premiums, including postretirement
insurance premiums are incorrectly withheld, the entire amount of the unpaid premium is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM
upon discovery of the error.18

9

The record includes a December 28, 2012 decision finding an overpayment of $611.25 due to an incorrect pay
rate.
10

5 C.F.R. § 870.201.

11

Id. at § 870.204(a).

12

Id. at § 870.401(a).

13

Id. at § 870.701, subpart G.

14

Id. at § 871.201, subpart B; 8702.201, subpart B; 873.203, subpart B.

15

Id. at § 870.501.

16

Id. at § 872.410, subpart D.

17

Scherri L. Stanley, 53 ECAB 433 (2002).

18

See James Lloyd Otte, 48 ECAB 334, 337 (1997).

4

ANALYSIS -- ISSUE 1
In the present case, the record indicates that the employing establishment had paid
appellant’s OLI premiums through July 24, 2013. When appellant began receiving wage-loss
compensation for total disability as of July 24, 2013, OWCP had initially deducted OLI
premiums based on her current pay rate for the date-of-injury position. The employing
establishment indicated that the annual salary was $53,849.00 as of July 24, 2013.
The overpayment in this case has been based on the failure to properly deduct OLI
premiums from August 9, 2014 to May 2, 2015. There is no indication that appellant disputes
that OLI premiums should be deducted from her continuing compensation. She had previously
elected OLI coverage, there is no indication that she waived coverage,19 and there is no dispute
that during the period August 9, 2014 to May 2, 2015 the OLI deductions were based on
coverage for a salary of $29,135.08 per year. According to the March 25, 2015 letter from OPM,
the proper base salary, as of August 9, 2014, was $55,574.00 per year. This is consistent with
evidence as to appellant’s current salary for the date-of-injury position and there is no contrary
evidence of record.
The record therefore supports a finding that the OLI premiums were deducted based on
an incorrect salary coverage. OWCP calculated that, during the period August 9, 2014 to May 2,
2015, OLI premiums of $595.03 had been deducted. Using the salary of $55,574.00, it found
that $1,110.72 should have been deducted. The difference between these amounts represents a
$515.69 overpayment of compensation.
On appeal, appellant notes that her pay rate for compensation purposes was not
$55,574.00, but the date to determine pay rate under FECA is determined by 5 U.S.C.
§ 8101(4).20 OWCP used a date of November 28, 1988, a date of injury in accord with this
section. The OLI premiums are based on a current salary, as the benefit is a multiple of that
salary. For the reasons discussed, OWCP properly found an overpayment of compensation in the
amount of $515.69 in this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA21 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and

19

Cf. S.K., Docket No. 15-0511 (issued September 9, 2015) (there was no indication that the claimant had elected
OLI prior to retirement, and no election form or other documents establishing that she had elected OLI as of the date
identified by OPM).
20

Monthly, pay means the monthly pay at the time of injury, or the monthly pay at the time disability begins, or
the monthly pay at the time compensable disability recurs, if the recurrence begins more than six months after the
injured employee resumes regular full-time employment with the United States, whichever is greater. 5 U.S.C.
§ 8101(4).
21

Supra note 2.

5

good conscience.”22 Since OWCP found that appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary “needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.23 For waiver of
recovery under the “defeat the purpose” of FECA standard, appellant must show that he needs
substantially all of his current income to meet current ordinary and necessary living expenses,
and that his assets do not exceed the resource base.24
Section 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; and (b) the individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.
With respect to the submission of financial evidence, OWCP’s regulations at 20 C.F.R.
§ 10.438 provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA, or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”
ANALYSIS -- ISSUE 2
In the present case, OWCP requested that appellant submit financial information relevant
to the issue of waiver. It sent her an OWCP-20 form which requests information with respect to
22

5 U.S.C. § 8129(b).

23

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).
24

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

6

income and expenses. As noted above, appellant is responsible for submitting the necessary
evidence on which OWCP may properly make an informed determination as to entitlement to
waiver under OWCP procedures. She did not submit the requested financial information.
Pursuant to 20 C.F.R. § 10.438, OWCP must deny waiver of recovery of the overpayment until
the requested information is furnished.
CONCLUSION
The Board finds that OWCP properly found an overpayment of compensation in the
amount of $515.69 was created and that waiver of recovery of the overpayment was properly
denied.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 9, 2015 is affirmed.
Issued: March 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 16-1802
Issued: February 1, 2017

Case Submitted on the Record

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

JURISDICTION
On September 9, 2016 appellant, through counsel, filed a timely appeal from a July 13,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
right shoulder, right arm, and cervical injuries causally related to a November 8, 2013
employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 12, 2013 appellant, then a 53-year-old city carrier, filed a traumatic injury
claim (Form CA-1), alleging that, on November 8, 2013, while lifting a bucket of mail, he felt a
pull in his shoulder and weakness in his right arm. He did not stop work.
Appellant was treated by Dr. Joseph J. Andriano, a Board-certified internist with a
specialty in occupational medicine, on November 12, 2013, for insidious onset of cervical pain.
Dr. Andriano reported no injury or trauma which may have caused his symptoms. Appellant
noted that, on November 8, 2013, while at work, he picked up a bucket full of mail and felt a
sudden onset of pain in the right cervical paraspinals and right arm. He continued working his
shift but noticed weakness in his right arm and shoulder. Dr. Andriano noted findings on
examination of weakness of the lateral deltoid and weakness in his biceps. He diagnosed
multilevel degenerative disc disease with herniated nucleus pulposus at C3-4, C4-5, C5-6, and
C5-7 without lesion, and cord edema from C3-5. Dr. Andriano recommended a consultation
with a neurosurgeon and returned appellant to modified duty. In an attending physician’s report
(Form CA-20) dated November 12, 2013, he diagnosed multilevel degenerative disc disease,
herniated nucleus pulposus and weakness. Dr. Andriano checked a box marked “yes,” indicating
that appellant’s condition was caused or aggravated by an employment activity and returned
appellant to work with restrictions. In a November 12, 2013 duty status report (Form CA-17), he
diagnosed profound weakness at C5 and multiple level degenerative disc disease of the cervical
spine. Dr. Andriano noted appellant’s work restrictions.
A November 12, 2013 cervical spine magnetic resonance imaging (MRI) scan revealed
disc herniation at C3-4 with abutment of the cord, disc herniation’s at C4-5 with cord
compression and edema, discus protrusion at C5-6, and disc herniation at C6-7 abutting the
ventral cord.
By letter dated November 22, 2013, OWCP advised appellant of the type of evidence
needed to establish his claim, particularly requesting that appellant submit a physician’s reasoned
opinion addressing the relationship of his claimed condition and specific employment factors. It
afforded her 30 days to provide this information.
Appellant was treated by Dr. Mathew T. Mayr, a Board-certified neurosurgeon, on
November 27, 2013, for right arm weakness. He reported working as a mail carrier and on
November 8, 2013 he picked up a large bucket of mail and felt pain in his neck and a pop in his
arm. Appellant indicated that his right arm became weak and he had difficulty lifting it.
Dr. Mayr noted findings of muscle weakness of the right deltoid and biceps with no right deltoid
reflex. X-rays revealed significant degenerative disc disease at C3-4 and C4-5 with large
osteophytes. Dr. Mayr diagnosed cervical stenosis of the spine, C5 radiculopathy and C3-4 and
C4-5 herniated discs. He recommended anterior cervical discectomy and fusion at C3-4 and
C4-5. On December 9, 2013 Dr. Mayr noted appellant’s symptoms were worsening with
progressive weakness. He recommended surgery. On December 11, 2013 Dr. Mayr performed
an anterior cervical discectomy at C3-4, C4-5 and fusion at C3-4 and C4-5.
In a November 29, 2013 statement, appellant indicated that, since his November 8, 2013
injury, he experienced weakness in his shoulder and arm. He noted that he did not have any
other disability or symptoms prior to this injury.
2

In a December 24, 2013 decision, OWCP denied appellant’s claim, finding that he failed
to establish an injury or medical condition causally related to the accepted November 8, 2013
work incident.
On January 16, 2014 appellant requested an oral hearing, before an OWCP hearing
representative which was held on July 16, 2014.
In a decision dated September 30, 2014, OWCP’s hearing representative affirmed the
decision dated December 24, 2013.
On February 12, 2015 appellant requested reconsideration. He submitted a report dated
January 12, 2015 in which Dr. Mayr indicated that on November 8, 2013 appellant was lifting a
bucket when he suffered severe pain followed by weakness in his right arm. Dr. Mayr noted that
appellant was diagnosed with cervical radiculopathy and had an MRI scan which revealed disc
herniations at C3-4 and C4-5. He opined to a reasonable degree of medical certainty that the
lifting of the bucket was the causal factor to appellant’s injury. Dr. Mayr noted that, although
appellant had underlying degeneration, he thought the stress on his arm and neck from lifting
caused pressure on the disc space causing the herniation, subsequent severe nerve injury, pain,
and weakness.
In a decision dated May 7, 2015, OWCP denied modification of the September 30, 2014
decision.
On April 18, 2016 appellant again requested reconsideration. He submitted an April 7,
2016 report from Dr. Mayr who noted that, although appellant had underlying degeneration, the
stress on his arm and neck from lifting caused pressure on the disc space, which caused the disc
herniation and subsequent severe nerve pain and severe nerve injury resulting in pain and
weakness. Dr. Mayr opined that to a reasonable degree of medical certainty the lifting of the
bucket was the proximate cause of appellant’s injury.
Also submitted was a December 15, 2014 electromyogram (EMG) that showed
significant right C5 motor radiculopathy. A December 12, 2014 report from a physician assistant
was also submitted.
In a decision dated July 13, 2016, OWCP denied modification of the decision dated
May 7, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed is causally related to the

3

employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
Rationalized medical opinion evidence is generally 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 factors identified by the claimant.5
ANALYSIS
It is not disputed that on November 8, 2013 appellant was injured when lifting a bucket
of mail at his case. However, the Board finds that appellant has not submitted sufficient medical
evidence to establish that this work incident caused or aggravated his diagnosed conditions.
Appellant submitted reports from Dr. Mayr dated January 12, 2015 and April 7, 2016
who indicated that on November 8, 2013 appellant was lifting a bucket when he suffered severe
pain followed by weakness in his right arm. Dr. Mayr diagnosed cervical radiculopathy and disc
herniations at C3-4 and C4-5. He opined that the lifting of the bucket was the causal factor to
appellant’s injury. Dr. Mayr noted that, although appellant had underlying degeneration, he
thought the stress on his arm and neck from lifting caused pressure on the disc space which
caused the herniation and subsequent severe nerve injury with resulting pain and weakness. The
Board finds that, although Dr. Mayr supported causal relationship, he did not provide medical
rationale explaining the basis of his opinion.6 For example, Dr. Mayr did not explain the process
by which lifting a bucket of mail would cause the diagnosed condition and why such condition
would not be due to any nonwork factors such as age-related degenerative changes.7 Therefore,
this report is insufficient to meet appellant’s burden of proof.
Other reports from Dr. Mayr dated November 27 and December 9, 2013 noted that
appellant worked as a mail carrier and on November 8, 2013 he picked up a large bucket of mail
3

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

4

T.H., 59 ECAB 388 (2008).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

6

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
7

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

4

and felt pain in his neck and weakness in his right arm. He diagnosed cervical stenosis of the
spine, C5 radiculopathy and C3-4 and C4-5 herniated discs. The Board finds that these records
are insufficient to establish the claim as Dr. Mayr did not clearly explain how the work incident
of picking up a bucket of mail caused or aggravated any diagnosed medical condition.8
Appellant submitted a November 12, 2013 report from Dr. Andriano who noted that
appellant reported picking up a bucket of mail at work on November 8, 2013 and felt a sudden
onset of pain in the right cervical paraspinals and right arm. Dr. Andriano diagnosed multilevel
degenerative disc disease with herniated cervical discs. This report is insufficient to meet
appellant’s burden of proof as Dr. Andriano did not provide his own opinion regarding whether
appellant’s condition was work related. Rather, he was merely repeating the history as related by
appellant. Dr. Andriano also failed to provide a rationalized opinion regarding the causal
relationship between appellant’s cervical condition the factors of employment believed to have
caused or contributed to such condition.9 His November 12, 2013 duty status report is also
insufficient to establish the claim as he did not address the cause of appellant’s claimed
condition. A November 12, 2013 attending physician’s report from Dr. Andriano diagnosed
multilevel degenerative disc disease, herniated nucleus pulposus and weakness. He noted with a
checkmark “yes” that appellant’s condition was caused or aggravated by an employment activity.
The Board has held that when a physician’s opinion on causal relationship consists only of
checking a box marked “yes” to a form question, without explanation or rationale, that opinion is
of diminished probative value and is insufficient to establish a claim.10
Appellant was also treated by a physician assistant on December 12, 2014. However, the
Board has held that documents signed by a physician assistant are not considered medical
evidence as a physician assistant is not a physician under FECA.11 Thus, the treatment records
from the physician assistant are of no probative medical value in establishing appellant’s claim.
The remainder of the medical evidence, including an MRI scan of the cervical spine and
an EMG, is of limited probative value as it fails to provide an opinion on the causal relationship
between appellant’s job and his diagnosed cervical condition.12 For this reason, this evidence is
insufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
8

Id.

9

Supra note 7.

10

Sedi L. Graham, 57 ECAB 494 (2006); D.D., 57 ECAB 734 (2006).

11

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
12

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

5

rationalized medical opinion evidence.13 Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.
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 not met his burden of proof to establish right shoulder,
right arm, and cervical injuries causally related to the November 8, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy 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

13

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Huntsville, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Eric F. Adams, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1053
Issued: September 14, 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 March 8, 2007 appellant filed an appeal of a December 12, 2006 decision of the
Office of Workers’ Compensation Programs denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. The
most recent merit decision of record is a December 9, 2005 decision denying a period of wageloss compensation and denying requested diagnostic testing. As this decision is more than one
year old, the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review.
FACTUAL HISTORY
The Office accepted that on June 8, 2003 appellant, then a 33-year-old security screener,
sustained a temporary aggravation of degenerative disc disease at C5-6 while moving luggage.
Appellant was terminated from federal employment in approximately mid August 2004.

In reports dated June 9, 2003 to July 13, 2004, Dr. William S. Pennington, an attending
Board-certified neurologist and psychiatrist, provided a history of injury and treatment. He
diagnosed musculoskeletal back and left shoulder pain. Appellant’s examination remained
objectively negative.
In a September 20, 2003 report, Dr. Eston G. Norwood, an attending Board-certified
neurologist and psychiatrist, stated that electromyography (EMG) and nerve conduction velocity
(NCV) studies performed that day showed no abnormalities of the cervical spine or left upper
extremity. He opined that there was no neurologic explanation for appellant’s continued neck
and left arm symptoms.
In an October 7, 2003 report, Dr. Morris B. Seymour, an attending Board-certified
orthopedic surgeon, provided a history of injury and treatment. He diagnosed a possible cervical
strain with radiculopathy. Dr. Seymour ordered October 13, 2003 cervical and thoracic magnetic
resonance imaging (MRI) scans which showed a prominent C5-6 disc without nerve root
compression.1 In a November 13, 2003 report, he diagnosed degenerative disc disease at C5-6.
Dr. Seymour opined that lifting luggage was competent to aggravate the underlying degenerative
changes. He stated that any such exacerbation should resolve within 12 weeks of injury.
Dr. Seymour prescribed physical therapy.2
In a January 8, 2004 report, Dr. Rhett B. Murray, an attending Board-certified
neurosurgeon, diagnosed a left-sided cervical strain affecting the rhomboid area. In an August 3,
2004 report, Dr. Murray noted that appellant had a small disc bulge at C5-6 without nerve root
impingement or cord compression. He diagnosed musculoskeletal pain without radiculopathy.
On July 29, 2004 appellant claimed wage-loss compensation for total disability for the
period August 14, 2003 to October 2, 2004.
In August 2004, appellant requested authorization for cervical and thoracic myelogram.
In an August 13, 2004 letter, the Office advised him of the additional evidence needed to support
his request for the myelograms.
In response, appellant submitted a December 16, 2003 letter from Dr. Seymour, stating
that he should undergo a myelogram prior to considering any surgical treatment as testing
revealed no structural changes of the spine. In an August 19, 2004 letter, Dr. Murray explained
that cervical and thoracic myelograms were necessary to rule out nerve root impingement as a
cause of appellant’s symptoms.
In an October 5, 2004 notice, the Office authorized the requested myelogram.

1

Appellant received an epidural steroid injection at C6 on October 24, 2003.

2

Appellant also submitted physical therapy notes dated October 2003 to April 2004 signed only by a physical
therapist. The reports of a physical therapist do not constitute competent medical evidence, as a physical therapist is
not a physician as defined by section 8101(2) of the Act. 5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB
357 (2000).

2

By decision dated October 8, 2004, the Office denied authorization of the requested
myelogram on the grounds that the medical evidence did not support that the testing was related
to the accepted condition.
By decision dated November 19, 2004, the Office denied appellant’s claim for
compensation from August 14, 2003 to October 2, 2004 on the grounds that the accepted
condition had ceased, relying on Dr. Seymour’s November 13 and December 16, 2003 reports.
The Office also terminated appellant’s monetary and medical compensation benefits effective
November 19, 2004 on the grounds that his work-related condition had ceased.3
In a November 6, 2004 letter, appellant requested an oral hearing regarding the Office’s
October 8, 2004 decision denying authorization of the myelogram. He later changed his request
to a review of the written record. The Office modified appellant’s request to encompass a review
of the written record of both the October 8 and November 19, 2004 decisions.
Appellant submitted medical billing documents and a November 9, 2004 letter regarding
a discrimination complaint. He also submitted copies of evidence previously of record.
By decision dated and finalized December 9, 2005, an Office hearing representative
affirmed the Office’s October 8 and November 19, 2004 decisions finding that the accepted
conditions had ceased and that medical evidence did not establish that the myelogram was
medically necessary to treat the accepted condition. He noted that the Office authorized the
myelogram prior to the October 8, 2004 denial. However, the hearing representative found that
the Office’s decision properly explained that “the evidence did not support the medical necessity
of the recommended testing as being related to the accepted condition or due to the June 2003
work injury.”
In a December 3, 2006 letter, appellant requested reconsideration. He asserted that
Dr. Seymour did not render a complete diagnosis and prescribed inappropriate treatment.
Appellant submitted a statement from his mother, asserting that Dr. Seymour yelled at him and
refused to treat him. He also submitted a March 7, 2006 letter regarding unpaid hospital bills.
Appellant also provided copies of evidence previously of record.
By decision dated December 12, 2006, the Office denied reconsideration on the grounds
that appellant’s December 3, 2006 request neither raised substantive legal questions nor included
new and relevant evidence showing that the Office made an error of fact of law.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,4
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
3

The Board was unable to locate a pretermination notice in the record or any response that appellant may have
submitted regarding such a notice.
4

5 U.S.C. § 8128(a).

3

(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.5 Section 10.608(b)
provides that when an application for review of the merits of a claim 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.6
In support of his request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his burden of proof.7 The claimant need only
submit relevant, pertinent evidence not previously considered by the Office.8 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.9
ANALYSIS
The Office denied appellant’s request to authorize a myelogram by decision dated
October 8, 2004, finding that he submitted insufficient evidence to establish that the test was
required to treat the accepted cervical condition. By decision dated November 19, 2004, the
Office denied appellant’s claim for compensation for the period August 14, 2003 to October 2,
2004 on the grounds that the accepted condition had ceased prior to August 14, 2003. Following
a review of the written record the Office affirmed both decisions on December 9, 2005.
Appellant then requested reconsideration by December 3, 2006 letter.
The underlying issues at the time of the last merit decisions in the case were whether the
accepted aggravation of cervical degenerative disc disease disabled appellant from work from
August 14, 2003 to October 2, 2004 or necessitated a myelogram. To be relevant, the evidence
submitted in support of the December 3, 2006 request for reconsideration must address those
issues.
Appellant’s December 3, 2006 letter, his mother’s statement and the hospital billing letter
do not address the need for the requested myelogram or the claimed period of disability. The
Board has held that the submission of evidence which does not address the particular issue
involved does not comprise a basis for reopening a case.10 Appellant also submitted copies of
evidence previously of record and considered by the Office. However, evidence or argument
which is duplicative or cumulative in nature is insufficient to warrant reopening a claim for merit

5

20 C.F.R. § 10.606(b)(2) (2003).

6

20 C.F.R. § 10.608(b) (2003).

7

Helen E. Tschantz, 39 ECAB 1382 (1988).

8

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

9

Annette Louise, 54 ECAB 783 (2003).

10

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

4

review.11 The duplicative nature of this evidence does not require reopening the record for
further merit review.
Thus, appellant has not established that the Office improperly refused to reopen his claim
for a review of the merits under section 8128(a) of the Act, because he did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by the Office or constitute relevant and pertinent new
evidence not previously considered by the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 12, 2006 is affirmed.
Issued: September 14, 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

11

Denis M. Dupor, 51 ECAB 482 (2000).

5