United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND POST
OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0359
Issued: March 1, 2022

Case Submitted on the Record

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

On January 12, 2022 appellant filed a timely appeal from a December 13, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0359.
In a letter dated February 15, 2022, appellant requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that appellant’s request for the
withdrawal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the withdrawal of the appeal
is granted. The appeal docketed as No. 22-0359 is dismissed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Nashville, TN, Employer
__________________________________________

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Appearances:
Appellant, pro se
Catherine P. Carter, Esq., for the Director

Docket No. 06-1974
Issued: March 16, 2007

Oral Argument February 22, 2007

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

JURISDICTION
On August 23, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated May 25, 2006, which denied his 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 his burden of proof to establish that he sustained an
emotional condition in the performance of duty causally related to his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 23, 2003, the
Board affirmed a January 15, 2002 merit decision in which the Office denied that appellant
sustained an emotional condition in the performance of duty. The Board also found that, in a
May 8, 2002 decision, the Office properly denied appellant’s request for reconsideration. On
July 3, 2003 appellant requested reconsideration of the Board’s May 23, 2003 decision and by

order dated September 30, 2003, the Board denied his request as untimely.1 The law and the
facts of the previous Board decisions are incorporated herein by reference.
On December 7, 2003 appellant requested reconsideration with the Office and reiterated
his contentions that he was harassed and discriminated against by employing establishment
management, specifically alleging that Dwayne Davis did not follow postal hiring policies and
procedures. In support of his reconsideration request, appellant submitted a May 9, 2001
statement in which Mary L. Jordan discussed a leave request and claim form. In a January 29,
2002 statement, Francesca Munoz advised that she was assigned to the examination unit on
June 26, 1998 and did not undergo a desk audit. In a February 20, 2002 statement,
Annette Patterson advised that she was detailed to the unit in June 1998 and did not undergo a
desk audit. In an email dated September 27, 2002, Robert Fortson generally alleged improper
hiring practices at the employing establishment and questioned why he was not hired for a
permanent position. An October 17, 2002 statement from Jacqueline Waters described a 1997
meeting with appellant regarding hiring. In an October 20, 2002 statement, H. Lee made a
general complaint about Mr. Davis and employing establishment hiring practices. In a
November 17, 2002 affidavit, Walter Frierson discussed his hiring at the employing
establishment. In deposition testimony dated December 12, 2002, Jack Burns addressed
appellant’s Equal Employment Opportunity Commission (EEOC) claim. In a February 4, 2003
statement, Sandra F. Rueff disagreed with several statements made by Mr. Davis in an EEOC
affidavit. In a February 14, 2003 affidavit, Cynthia W. Fitzgerald, an attorney representing
appellant before the EEOC, discussed his claim. In an April 15, 2003 statement, Harry L.
Vaughn, an EEOC manager at the employing establishment, discussed an August 1998 meeting
in which appellant was not coherent. In an April 16, 2005 statement, appellant argued that the
statements, he submitted corroborated his allegations. He also submitted an October 19, 1998
fitness-for-duty medical examination report from Dr. Gilbert W. Raulston, a Board-certified
psychiatrist, who diagnosed major depression. In an October 30, 1998 memorandum, an
employing establishment nurse advised to an employing establishment physician regarding
appellant’s request for Family Medical Leave.
In a merit decision dated May 25, 2006, the Office denied modification of its prior
decision. It found that, as appellant failed to establish a compensable factor of employment, he
failed to establish that he sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.2 If a claimant does implicate a factor of employment, the
1

The Board also inadvertently assigned this request a separate docket number, 03-1847 and by order dated
March 21, 2005, the Board dismissed 03-1847 for lack of jurisdiction.
2

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

2

Office should then determine whether the evidence of record substantiates that factor.3 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.6
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.7 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.8 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.10 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.11
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Mere perceptions of harassment or discrimination are not compensable under the
Act. Unsubstantiated allegations of harassment or discrimination are not determinative of

3

Dennis J. Balogh, 52 ECAB 232 (2001).

4

Id.

5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

7

See Robert W. Johns, 51 ECAB 137 (1999).

8

Lillian Cutler, supra note 5.

9

Roger Williams, 52 ECAB 468 (2001).

10

Charles D. Edwards, 55 ECAB 258 (2004).

11

Kim Nguyen, 53 ECAB 127 (2001).

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whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.12
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an injury in the performance of duty. He alleged that he was harassed and suffered
retaliation by Mr. Davis for his refusal to engage in illegal hiring practices and improperly
underwent unannounced desk audits and investigations. Appellant submitted a number of
statements from coworkers and job applicants. The Board, however, finds these statements
insufficient to establish his claim because they are of a general nature and do not refer to the
specific incidents relating to appellant.
In her statement, Ms. Jordan merely referred to a leave request and appellant’s claim.
Generally, actions of the employing establishment in matters involving the use of leave are not
considered compensable factors of employment as they are administrative functions of the
employer and not duties of the employee.13 Likewise, the processing of compensation claims
bears no relation to appellant’s day-to-day or specially-assigned duties.14
Regarding appellant’s contention that he was improperly investigated and underwent an
improper desk audit, mere disagreement with or dislike of actions taken by a supervisor or
manager or frustration with the policies and procedures of the employing establishment,15 will
not be compensable absent evidence establishing error or abuse as they relate to administrative or
personnel matters.16 While appellant provided statements from Ms. Munoz and Ms. Patterson
who advised that they did not undergo desk audits in June 1998, this fact alone does not
demonstrate that the employing establishment committed error or abuse in conducting
appellant’s desk audit. He, therefore, did not submit sufficient evidence to establish that the
audit was unwarranted or handled unreasonably. Appellant provided no corroborative evidence
to support that he was improperly investigated. Thus, he did not establish error or abuse on the
part of the employing establishment in these administrative matters.17
Appellant also alleged harassment by management when he expressed disagreement with
hiring practices at the employing establishment. He, however, submitted no substantive
evidence to support this contention. The statements of Mr. Burns, Ms. Rueff, Mr. Vaughn and
Ms. Fitzgerald were in regard to appellant’s EEOC claim and not his claim under the Act where
the issue is whether the claimant has submitted sufficient evidence under the requirements of the
Act to establish a factual basis for the claim by supporting his or her allegations with probative
12

James E. Norris, 52 ECAB 93 (2000).

13

David C. Lindsey, Jr., 56 ECAB ___ (Docket No. 04-1828, issued January 19, 2005).

14

Phillip L. Barnes, 55 ECAB 426 (2004).

15

Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006).

16

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

17

See Ana D. Pizarro, 54 ECAB 430 (2003).

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and reliable evidence.18 With regard to emotional claims arising under the Act, the term
“harassment” as applied by the Board is not the equivalent of “harassment” as defined or
implemented by other agencies, such as the EEOC, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under the Act, the term “harassment” is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or workers.19
Thus, the statements of Mr. Burns, Ms. Rueff, Mr. Vaughn and Ms. Fitzgerald do not
substantiate appellant’s allegations.
In their statements, Mr. Fortson, Ms. Waters, H. Lee and Mr. Frierson questioned the
hiring practices at the employing establishment. These statements, however, do not describe any
specific incidents in which appellant was harassed. The Board, therefore, finds that their
statements were too general in nature and do not rise to a level that indicates that the employing
establishment acted in an abusive manner or that appellant was harassed. Appellant did not
establish a compensable employment factor with respect to the claimed harassment. Moreover,
in its previous decision, the Board reviewed a number of statements submitted by the employing
establishment that countered appellant’s contentions in this regard.
The employing
establishment denied that appellant was subjected to harassment or discrimination and the EEOC
made a finding of no discrimination or retaliation.20 The Board, therefore, finds that appellant
has not submitted sufficient evidence to establish that he was harassed or discriminated against
by employing establishment management21 and did not establish that he sustained an emotional
condition in the performance of duty as alleged.22
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition causally related to his federal employment.

18

See David C. Lindsey, Jr., 56 ECAB ___ (Docket No. 04-1828, issued January 19, 2005).

19

Ronald K. Jablanski, 56 ECAB ___ (Docket No. 05-482, issued July 13, 2005).

20

While appellant testified at oral argument that a settlement had been made regarding his EEOC claim, a final
court decision is not contained in the case record.
21

See James E. Norris, supra note 12.

22

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2006 be affirmed.
Issued: March 16, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE AIR FORCE, 88TH
CIVIL ENGINEER SQUADRON, WRIGHTPATTERSON AFB, OH, Employer
__________________________________________

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

Docket No. 20-0682
Issued: September 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On February 7, 2020 appellant, through counsel, filed a timely appeal from a January 2,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 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.
2

The Board notes that following the December 30, 2019 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.

Federal Employees’ Compensation Act3 (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 a lumbar condition
causally related to the accepted September 11, 2018 employment incident.
FACTUAL HISTORY
On January 9, 2019 appellant, then a 46-year-old plumber, filed a traumatic injury claim
(Form CA-1) alleging that on September 11, 2018 he injured his back while he was turning a water
key to turn the water back on while in the performance of duty. He claimed that he strained his
back and experienced severe pain that worsened over time. Appellant stopped work on
September 17, 2018.
In an October 29, 2018 medical report, Dr. Jamal Taha, a Board-certified neurosurgeon,
evaluated appellant for lower back pain. He noted that appellant had experienced pain in his back
on and off for several years, but it had gotten worse in the past month. Dr. Taha diagnosed other
intervertebral disc displacement, lumbar region and referred him to physical therapy. He opined
that appellant was unable to perform his required duties given the severity of his pain at work and
recommended that he remain out of work until he could be reevaluated.
In medical reports dated from November 14 to December 19, 2018, Nathaniel McNiel, a
physician assistant, evaluated appellant after receiving epidural steroid injections (ESI) to treat his
lower back pain. He noted appellant’s diagnosis of degenerative disc disease at L4-5 with
spondylosis and opined that it was likely the cause of his back pain. Mr. McNiel scheduled
appellant for diagnostic bilateral L4-5 facet injections as he did not want to proceed with invasive
surgery to treat his condition.
Appellant also submitted a position description of his duties as a plumber.
In a development letter dated January 18, 2019, OWCP advised appellant of the factual
and medical deficiencies of his claim. It informed him of the evidence necessary to establish his
claim and requested a narrative medical report from appellant’s treating physician, which
contained a detailed description of findings and diagnoses, explaining how the alleged incident
caused, contributed to, or aggravated his medical conditions. OWCP afforded appellant 30 days
to submit the necessary evidence.
In medical notes dated from September 20, 2018 to January 24, 2019, Dr. Julio Soto,
Board-certified in family medicine, and Mr. McNiel requested that appellant be excused for
various dates ranging from September 17, 2018 until he is reevaluated again on January 31, 2019.

3

5 U.S.C. § 8101 et seq.

2

In a January 14, 2019 witness statement, K.H., appellant’s coworker, explained that on
September 11, 2018 he and appellant were involved with closing and opening approximately 12
underground water main valves to isolate a water main break.
By decision dated February 22, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record did not establish that his previously-diagnosed lumbar
region other intervertebral disc displacement was causally related to the accepted September 11,
2018 employment incident.
OWCP continued to receive evidence. In an October 29, 2018 diagnostic report,
Dr. Jerome Puryear, a Board-certified diagnostic radiologist, performed an x-ray of appellant’s
lumbar spine. He noted a previous September 27, 2018 x-ray and diagnosed mild discogenic and
nondiscogenic changes and no significant changes from the prior examination.
In operative reports dated from October 31, 2018 to January 16, 2019, Dr. Taha
documented the ESIs and facet injections appellant received to treat his lumbar spondylosis and
lumbar disc displacement.
In a February 6, 2019 medical report, Dr. Taha noted that appellant had experienced no
real improvements since his facet injections. He recommended that appellant not seek surgery and
suggested that he seek chiropractic treatment instead.
On March 5, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on June 10, 2019.
Appellant recounted the September 11, 2018 employment incident in which he was tasked with
correcting a water main break and stated that his back began to bother him after turning off
approximately 8 to 10 of the water valves that day. He indicated that he had experienced back and
muscle spasms in the past, but otherwise had no prior problems with his lower back. The hearing
representative explained that appellant would need a narrative report from his treating physician
providing an explanation of how his condition was causally related to his employment incident.
She held the case record open for 30 days for the submission of additional evidence. No additional
evidence was received.
By decision dated July 11, 2019, OWCP’s hearing representative affirmed the February 22,
2019 decision.
OWCP continued to receive evidence. In medical reports dated April 5 and July 2, 2019,
Dr. Soto evaluated appellant and noted his diagnoses of a bulging of intervertebral disc between
L4 and L5 and anxiety.
In a July 30, 2019 medical report, Dr. Lance Tigyer, a Board-certified orthopedic surgeon,
evaluated appellant for lower back pain. On evaluation of appellant and his diagnostic reports, he
diagnosed lumbar disc herniation with radiculopathy at L1-L4 and recommended that he undergo
an ESI to treat his condition.

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In operative reports dated August 12 and 26, 2019, Dr. Tigyer documented ESIs appellant
received in order to treat his lumbar herniated nucleus pulposus with radiculopathy.
In a September 11, 2019 medical report, Dr. Soto evaluated appellant for his lower back
related to the September 11, 20184 employment incident. Appellant informed him that he was
seeking medical retirement as his condition had kept him out of work for a year and interfered with
this activities of daily living (ADLs). Dr. Soto diagnosed a bulging of intervertebral disc between
L4 and L5 and a lumbar herniated disc L4-L5.
Appellant also submitted multiple medical reports previously received by OWCP.
On October 15, 2019 appellant, through counsel, requested reconsideration of OWCP’s
July 11, 2019 decision.
Appellant submitted a February 25, 2017 medical report in which Dr. Soto evaluated
appellant for several medical conditions, including a lumbar strain. Dr. Soto noted that appellant
exacerbated his condition when he was outside working and that he experienced spasms as a result.
By decision dated January 2, 2020, OWCP affirmed its July 11, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period 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 fact of injury has been established.8 First,
the employee must submit sufficient evidence to establish that she actually experienced the

4

Dr. Soto’s report appears to contain a typographical error as he noted the date of injury as September 18, 2018.

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

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

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employment incident at the time, place, and in the manner alleged.9 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.10
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.11 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.12
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted September 11, 2018 employment incident.
In an October 29, 2018 medical report, Dr. Taha evaluated appellant’s lower back pain and
noted that he had experienced pain his back on and off for several years but it had gotten worse in
the past month. He diagnosed other intervertebral disc displacement, lumbar region and opined
that appellant was unable to perform his required duties at work and recommended that he remain
out of work until he could be reevaluated. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship.14 Additionally, the Board has held that a well-rationalized opinion is
particularly warranted when there is a history of a preexisting condition, as in this case.15 For these
reasons, Dr. Taha’s October 29, 2018 medical report is insufficient to meet appellant’s burden of
proof.
Dr. Taha’s remaining medical evidence consists of operative reports dated from
October 31, 2018 to January 16, 2019 and a February 6, 2019 medical report in which he described
ESIs and facet injections he provided to appellant in order to treat his lumbar conditions. As stated
9

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

K.V., Docket No. 18-0723 (issued November 9, 2018).

12

I.J., 59 ECAB 408 (2008).

13

R.C., Docket No. 19-0376 (issued July 15, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
14

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019); L.B., Docket
No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018)..
15

M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn Haggerty, 45 ECAB 383, 388 (1994).

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above, medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issues of causal relationship.16
Dr. Soto’s medical evidence consisted of medical reports dated from April 5 to
September 11, 2019 in which he evaluated appellant for lower back pain related to the
September 11, 2018 employment incident and diagnosed a bulging of the intervertebral disc
between L4 and L5 as well as medical notes dated from September 20, 2018 to January 24, 2019
in which he requested that appellant be excused from work. Although his evidence generally
supported causal relationship between appellant’s lumbar condition and the accepted employment
incident, Dr. Soto did not provide sufficient rationale explaining these conclusions. Without
explaining how turning the water keys caused or contributed to his injuries, Dr. Soto’s opinion is
of limited probative value.17 His remaining medical evidence does not offer an opinion regarding
the cause of an employee’s condition, and therefore is of no probative value on the issues of causal
relationship.18
Similarly, in his July 30, 2019 medical report, Dr. Tigyer evaluated appellant for lower
back pain and diagnosed lumbar disc herniation with radiculopathy at L1-L4. He then provided
operative reports dated August 12 and 26, 2019 in which he treated appellant’s condition with
ESIs. As Dr. Tigyer’s medical evidence did not offer an opinion regarding the cause of appellant’s
condition, it is on no probative value on the issues of causal relationship.19
In his October 29, 2018 diagnostic report, Dr. Puryear performed an x-ray of appellant’s
lumbar spine and diagnosed mild discogenic and nondiscogenic changes. He also noted that there
were no significant changes from appellant’s previous September 27, 2018 examination. The
Board has held that diagnostic studies, such as an x-ray, standing alone, lack probative value as to
the issues of causal relationship as they do not address whether the employment incident caused
the diagnosed condition.20 For this reason, Dr. Puryear’s October 29, 2018 diagnostic report is
insufficient to meet appellant’s burden of proof.
Appellant also submitted medical evidence dated from November 14, 2018 to January 24,
2019 from Mr. McNiel, a physician assistant. Certain healthcare providers such as physical
therapists, nurses, physician assistants, and social workers are not considered physician[s] as

16

Supra note 13.

17

See A.P., Docket No. 19-0224 (issued July 11, 2019).

18

Supra note 13.

19

Id.

20

M.L., Docket No. 18-0153 (issued January 22, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

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defined under FECA.21 Consequently, their medical findings and/or opinions will not suffice for
purposes of establishing entitlement to FECA benefits.22
The remaining medical evidence consists of a February 25, 2017 medical report from
Dr. Soto. However, this evidence is of no probative value as it is dated prior to the September 11,
2018 employment incident.
As appellant has not submitted rationalized medical evidence establishing that his lumbar
condition is causally related to the accepted September 11, 2018 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted September 11, 2018 employment incident.

21

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

22

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered
medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013).

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ORDER
IT IS HEREBY ORDERED THAT the January 2, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Townsend, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0241
Issued: October 28, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On December 10, 2020 appellant, through counsel, filed a timely appeal from an
October 29, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2
The Clerk of the Appellate Boards docketed the appeal as 21-0241.
On February 2, 2016 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 1, 2016 he experienced a pinch, followed by extreme
pain, in his right leg after he stepped out of his long life vehicle while in the performance of duty.
He stopped work on that date. OWCP assigned the claim xxxxxx928 and, on March 23, 2016,
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 October 29, 2020 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.

accepted it for right hip psoas tendinitis and right hip trochanteric bursitis. It paid appellant wageloss compensation on the supplemental rolls, commencing March 18, 2016, and on the periodic
rolls, beginning October 29, 2016.
By decision dated August 30, 2017, OWCP terminated appellant’s wage-loss
compensation, effective August 29, 2017. On September 6, 2017 appellant, through counsel,
requested a telephone hearing before a representative of OWCP’s Branch of Hearings and Review
and submitted additional medical evidence.
By decision dated April 13, 2018, OWCP’s hearing representative found that OWCP had
not met its burden of proof to terminate appellant’s wage-loss compensation.
By decision dated May 6, 2020, OWCP terminated appellant’s medical benefits and wageloss compensation effective that date. On May 14, 2020 appellant, through counsel, requested an
oral hearing before a representative of OWCP’s Branch of Hearings and Review. By decision
dated October 29, 2020, OWCP’s hearing representative found that appellant had no continuing
employment-related disability or medical residuals after May 6, 2020.
The Board finds that this case is not in posture for decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.3 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 4
As OWCP File Nos. xxxxxx928 and xxxxxx831 both involve injuries to appellant’s back
for a full and fair adjudication, the Board will remand the case to OWCP to administratively
combine the present claim with OWCP File No. xxxxxx831.5 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing his current compensation claim.
Following this and other such further development as deemed necessary, OWCP shall issue a de
novo decision.

3

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
4

Id.

5

T.T., Docket No. 21-0049 (issued May 3, 2021); S.D., Docket No. 19-0590 (issued August 28, 2020).

2

IT IS HEREBY ORDERED THAT the October 29, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Greenbelt, MD,
Employer
__________________________________________

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

Docket No. 14-1311
Issued: April 28, 2015

Case Submitted on the Record

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

JURISDICTION
On May 19, 2014 appellant filed a timely appeal from a May 1, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established additional hearing loss causally related to
his federal employment, for which he had previously reviewed a schedule award.
FACTUAL HISTORY
On June 2, 1980 appellant, then a 38-year-old tool operator filed an occupational disease
claim alleging bilateral hearing loss due to factors of his federal employment. OWCP accepted
1

5 U.S.C. § 8101 et seq.

the claim for bilateral hearing loss. Appellant last worked for the employing establishment in
May 1979. By decision dated April 24, 1981, OWCP awarded him a schedule award for a
20 percent binaural hearing loss. The period of the award ran from December 4, 1980 to
September 9, 1981.
The record reflects that under this claim number, on August 1, 1983 OWCP determined
appellant’s wage-earning capacity as a hotel clerk, effective September 10, 1981.
In decisions dated July 2 and October 21, 2010, OWCP denied appellant’s claim for an
increased schedule award after finding that the medical evidence was insufficient to show a
greater hearing loss causally related to factors of his federal employment. It noted that he was
last exposed to hazardous noise in his federal employment in May 1979. On March 28, 2011
OWCP denied appellant’s request to reopen his case for further merit review. By decision dated
March 1, 2012,2 the Board affirmed the March 28, 2011 nonmerit decision denying appellant’s
request for reconsideration. The Board found that the issue of whether he sustained additional
employment-related hearing loss was a medical issue that must be addressed by relevant medical
evidence.
On November 5, 2012 appellant requested reconsideration of OWCP’s October 21, 2010
decision. OWCP referred appellant to Dr. Bibhas C. Bandy, a Board-certified otolaryngologist.
In his November 12, 2012 report, Dr. Bandy reviewed an audiogram taken on the date of
examination, the medical evidence of record and a statement of accepted facts dated
May 24, 2005. He stated that appellant developed a bilateral hearing loss in gradual fashion due
to his loud noise exposure at work during the period 1972 to 1991, when he worked for the
Department of Agriculture in Beltsville, Maryland as a laborer; he advised that his hearing loss
was somewhat worse since 1991. Dr. Bandy found that appellant had bilateral moderate to
profound sensorineural hearing loss, most likely due to previous noise trauma superimposed on
presbycusis; i.e., age. He opined that the increase in appellant’s hearing loss was due to
presbycusis and would progress with age.
In a December 6, 2012 report, an OWCP medical adviser reviewed Dr. Bandy’s report
and found that appellant was not entitled to an additional schedule award. He noted that
Dr. Bandy had opined that appellant’s increased hearing loss was due to presbycusis, i.e., age,
and he noted that once noise exposure ceases, hearing loss due to noise exposure also ceases.
By decision dated January 10, 2013, OWCP denied his request for reconsideration as it
was untimely filed and did not demonstrate clear evidence of error.
By letter dated March 25, 2013, appellant requested reconsideration. He argued that he
did not stop work in 1979 but continued working in federal employment until 1991 “under the
same conditions.” Appellant further asserted that he had additional hearing loss. He stated that
OWCP had referred him for a second opinion examination in 2012 but inaccurately informed
Dr. Bandy that he had not worked since 1980.

2

Docket No. 11-1521 (issued March 1, 2012) (petition for recon. denied, July 24, 2012).

2

By decision dated April 25, 2013, OWCP denied his request for reconsideration, finding
that it was untimely filed and did not demonstrate clear evidence of error.
In a February 3, 2014 decision,3 the Board set aside OWCP’s April 25, 2013 decision.
The Board found that OWCP erred in finding that appellant’s application for an additional
schedule award was a request for reconsideration and in issuing a denial of appellant’s request
for reconsideration under the clear evidence of error standard. The Board noted that a claimant
may request a schedule award or increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.4 The complete facts of this case are set forth in
the Board’s February 3, 2014 decision and are herein incorporated by reference.
By letter dated February 10, 2014, OWCP requested that appellant provide additional
factual and medical evidence. It asked him to document his employment history for the period
May 1979 to March 1990, along with any documentation supporting any period of federal
civilian employment during that period. OWCP also requested that appellant provide
information pertaining to any outside sources of excessive noise to which he may have been
exposed and submit an updated medical report issued since his most recent July 2010 report.
In response to OWCP’s letter, appellant resubmitted evidence previously of record,
including: (1) a copy of a June 2, 1980 occupational disease claim for hearing loss and a July 28,
1980 response to an OWCP request for additional information; (2) a personnel Form SF-50
indicating his appointment as a warehouse worker in Fort Bragg effective February 26, 1990;
(3) a personnel Form SF-50 indicating his termination as a tractor operator for the Department of
Agriculture, effective October 6, 1991, which included his statement that he worked around loud
noise and a position description for an air tool operator with the same statement; (4) a copy of a
March 21, 1983 OWCP letter to a physician; (5) a 1982 letter from a previous employing
establishment to OWCP; and (6) a September 9, 1983 OWCP letter.
New evidence included a December 19, 2012 report from Dr. Kirk D. Williams, a Boardcertified otolaryngologist. He stated that appellant’s condition was unchanged. Dr. Williams
asserted that there was no change in his hearing status since December 4, 2009 with regard to his
chronic bilateral and symmetrical sensorineural hearing loss. He advised that appellant’s hearing
loss continued to limit his physical activity and his ability to perform the duties of an air tool
operator because of an inability to hear adequately, the hearing loss was permanent and,
therefore, there was no chance of recovery. Dr. Williams stated that there was no specific
treatment plan at that point, including medications, and he recommended that appellant continue
to use hearing aids. In a March 6, 2014 report, he reiterated the findings and conclusions he
presented in his December 19, 2012 report.
Appellant also submitted a February 28, 2014 report containing an audiometric
evaluation showing that he had bilateral hearing loss.

3

Docket No. 13-1812 (issued February 3, 2014).

4

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994).

3

By decision dated May 1, 2014, OWCP denied appellant’s claim for an additional
schedule award, finding that he had failed to establish additional hearing loss causally related to
his federal employment.
LEGAL PRECEDENT
FECA provides compensation for both disability and physical impairment. “Disability”
means the incapacity of an employee, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.5 In such cases, FECA compensates an employee
for loss of wage-earning capacity. In cases of physical impairment, FECA, under section
8107(a), compensates an employee, pursuant to a compensation schedule, for the permanent loss
of use of certain specified members of the body, regardless of the employee’s ability to earn
wages.6
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, it is thus the claimant’s burden of proof to establish that he or she sustained a
permanent impairment of a scheduled member or function as a result of his or her employment
injury entitling him or her to a schedule award.7 The evidence generally required to establish
causal relationship is rationalized medical opinion evidence. The claimant must submit a
rationalized medical opinion that supports a causal connection between his current condition and
the employment injury.8 The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.9
The requirements of the evidence to be used in evaluating occupational hearing-loss
claims require that the employee undergo audiological evaluation and otological examination;
that the audiological testing precede the otologic examination; that the audiological evaluation
and otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings; that the clinical audiologist and otolaryngologist be certified; that all
audiological equipment authorized for testing meet the calibration protocol contained in the
accreditation manual of the American Speech and Hearing Association that the audiometric test
results include both bone conduction and pure-tone air conduction thresholds; speech reception
thresholds and monaural discrimination scores; and that the otolaryngologist’s report include the
date and hour of examination, date and hour of the employee’s last exposure to loud noise, and a
rationalized medical opinion regarding the relationship.10
5

Lyle E. Dayberry, 49 ECAB 369 (1998).

6

Renee M. Straubinger, 51 ECAB 667 (2000).

7

See Raymond E. Gwynn, 35 ECAB 247 (1983).

8

Manuel Gill, 52 ECAB 282 (2001).

9

Yvonne R. McGinnis, 50 ECAB 272 (1999).

10

See Joshua Holmes, 42 ECAB 231 (1990).

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ANALYSIS
The Board finds that the evidence does not establish that appellant sustained additional
hearing loss causally related to his federal employment. In its February 10, 2014 letter, OWCP
requested that he provide evidence of additional noise exposure from federal employment during
the period May 1999 and continuing. Appellant, however, did not submit any additional factual
documentation establishing an additional period of federal employment.
In his November 14, 2012 report Dr. Bandy examined appellant and an audiogram was
obtained on the physician’s behalf. He found, using OWCP’s standard procedures, that appellant
had additional hearing loss and that his hearing loss was increasing. Dr. Dandy attributed this to
appellant’s employment up to 1991, and thereafter to presbycusis. He noted that appellant had
told him that he had worked for the Department of Agriculture in Beltsville, Maryland as a
laborer from 1972 to 1991. This assertion was not supported by the record. In a December 6,
2012 report, an OWCP medical adviser found that appellant was not entitled to an additional
schedule award. He noted that Dr. Bandy had opined that appellant’s increased hearing loss was
due to presbycusis, i.e., age.
The Board finds that the opinion of Dr. Bandy, as reviewed by the medical adviser,
represents the weight of the medical evidence. Appellant has failed to establish that his
increased hearing loss was due to his federal employment.
Further, Dr. Williams offered no opinion as to whether any of appellant’s increasing
hearing loss was due to his federal employment. He did not provide any rationale, supported by
objective evidence, of any worsening due to federal civilian employment.
The February 28, 2014 audiometric evaluation showed that appellant had a bilateral
hearing loss, but did not contain an opinion from a physician regarding the cause of his hearing
loss or proper certification of calibration. Therefore, this report is lacking in probative value.11
Accordingly, appellant has not established increased hearing loss due to noise exposure
in his federal employment. He, therefore, has failed to establish that he is entitled to a schedule
award for more than the 20 percent he was previously awarded.
On appeal, appellant claims that he sustained increased hearing loss due to noise
exposure for the period May 1979 through March 1990 and throughout his federal employment.
He reiterates the arguments he raised in numerous letters and statements submitted to OWCP and
the Board, which have been thoroughly considered on appeal.
Appellant can file a claim before OWCP for an increased schedule award under the
appropriate file number based on medical evidence showing that the progression of an

11

As noted above, it is appellant’s burden to submit a properly certified audiogram for review if he objects to the
audiogram selected by OWCP for determining the degree of hearing loss. See Joshua A. Holmes, 42 ECAB 231,
236 (1990).

5

employment-related condition, without exposure to new employment factors, has resulted in a
greater impairment than previously calculated.12
CONCLUSION
The Board finds that appellant has not established that he is entitled to an additional
schedule award for hearing loss due to noise exposure at his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 1, 2014 is affirmed.
Issued: April 28, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See Tommy R. Martin, 56 ECAB 273 (2005); Linda T. Brown, 51 ECAB 115 (1999).

6


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
S.Y., Appellant
and
DEPARTMENT OF THE ARMY,
MAINTENANCE DIVISION, Fort Hood, TX,
Employer
_________________________________________

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

Docket No. 14-1466
Issued: November 18, 2014

Case Submitted on the Record

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

JURISDICTION
On June 16, 2014 appellant filed a timely appeal from the February 10, 2014 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 schedule award determination.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
permanent impairment due to his accepted injury.
FACTUAL HISTORY
On August 8, 2002 appellant, then a 51-year-old maintenance mechanic supervisor,
injured his right shoulder while reaching overhead to scrub graffiti off of a wall. He did not stop
1

5 U.S.C. § 8101 et seq.

work. OWCP accepted appellant’s claim for bursitis of the right shoulder and bilateral carpal
tunnel syndrome. On February 24, 2005 it accepted his claim for a recurrence of disability on
February 13, 2003. Appellant received compensation benefits.
In a May 27, 2012 letter, appellant stated that in February 1987, he was in an accident
when he worked for the employing establishment. He also noted his August 2002 work injury.
Appellant stated that his right shoulder, arm and hand pain had increased since 2002. He had
cervical spine surgery in November 2011 which eliminated his shoulder pain and carpal tunnel
symptoms but rendered his right arm partially paralyzed. Appellant asked that his claim be
reopened.2 On November 4, 2012 he filed a claim for a schedule award.
By letter dated April 1, 2013, OWCP requested that appellant provide an opinion from
his treating physician as to whether he had reached maximum medical improvement and to
provide an impairment rating utilizing the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (6th ed. 2009) (A.M.A., Guides). No response was
received.
In a May 3, 2013 decision, OWCP denied appellant’s claim for a schedule award. It
found that the medical evidence did not establish any permanent impairment to his upper
extremities.
On July 20, 2013 appellant requested reconsideration. In a letter dated July 27, 2013, he
noted that he was not in the area when the request for additional information was sent. Appellant
had requested that his physician submit additional information and it was received on
July 17, 2013. He enclosed additional medical evidence that included treatment notes from
Veterans’ Affairs facilities.
In an undated handwritten response to OWCP’s request for an impairment rating,
received on August 1, 2013, Dr. Catherine E. Porter, a Board-certified neurologist, rated
appellant with 50 percent loss of cervical spine range of motion. Appellant also had diminished
strength in the right arm, and chronic neck and right arm pain. Dr. Porter opined that appellant
had 60 percent loss of use of the right arm. She found he had not reached maximum medical
improvement.
By decision dated October 28, 2013, OWCP modified the May 3, 2013 decision to deny
appellant’s schedule award claim on the grounds that he had not reached maximum medical
improvement.
In a letter dated November 9, 2013, appellant requested reconsideration. He argued that
he was entitled to a schedule award. Appellant did not believe that his physician meant that he
was going to get better, but rather, his condition would probably worsen.
In a November 6, 2013 report, Dr. Mahmoud Abdelrazek, a neurologist, noted that
appellant had a work-related injury leading to weakness of the right arm due to cervical spine
2

The Board notes that the record before the Board contains no indication that any claim for a 1987 injury was
filed or accepted. The record also does not indicate that OWCP authorized the 2011 cervical spine surgery.

2

degenerative disease. He stated that appellant complained of the inability to use his right arm to
lift heavy objects or carry out tasks requiring the use of his right arm leading to an estimated loss
of 60 percent of function of his arm. Dr. Abdelrazek opined that it seemed “unlikely that he will
ever regain full function of the right arm. There is unlikely to be further improvement of
appellant’s impairment as he has reached the maximum medical improvement possible.”
By decision dated February 10, 2014, OWCP denied appellant’s claim for a schedule
award. It found the medical evidence did not establish permanent impairment pursuant to the
sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.3 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.4 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.6
ANALYSIS
The evidence of record is insufficient to establish that appellant sustained any permanent
impairment causally related to his accepted bursitis of the right shoulder or bilateral carpal tunnel
syndrome.
In an undated report received on August 1, 2013, Dr. Porter stated generally that
appellant had 60 percent loss of use of the right arm. However, she also advised that appellant
had not yet reached maximum medical improvement. The Board notes this rating is of
diminished probative value. Dr. Porter did not address how any impairment was due to the
accepted conditions. Thus, her report is insufficient to establish permanent impairment of the
right arm due to the accepted conditions.7

3

5 U.S.C. § 8107.

4

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

20 C.F.R. § 10.404.

6

Veronica Williams, 56 ECAB 367 (2005).

7

See D.S., Docket No. 08-885 (issued March 17, 2009) (it is well established that a schedule award cannot be
paid until a claimant has reached maximum medical improvement).

3

In a November 6, 2013 report, Dr. Abdelrazek noted that appellant had 60 percent
impairment of his right arm and had reached maximum medical improvement. However, he did
not base his impairment rating upon the A.M.A., Guides,8 nor did he explain how the impairment
was causally related to the accepted conditions.9 Consequently, Dr. Abdelrazek’s report is of
limited probative value. Appellant did not submit any other medical evidence to establish that
his accepted right shoulder bursitis or bilateral carpal tunnel syndrome caused permanent
impairment under the A.M.A., Guides. For these reasons, the evidence of record is insufficient
to establish entitlement to a schedule award.
On appeal, appellant argued that his physicians followed the A.M.A., Guides. As noted,
the medical evidence does not provide an impairment rating in accordance with the A.M.A.,
Guides. Further, his physicians did not explain how any impairment was causally related to the
accepted right shoulder bursitis or bilateral carpal tunnel syndrome.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish permanent
impairment.

8

See Shalanya Ellison, 56 ECAB 150, 154 (2004) (schedule awards under FECA are to be based on the A.M.A.,
Guides; an estimate of permanent impairment is irrelevant and not probative where it is not based on the A.M.A.,
Guides).
9

Although Dr. Abdelrazek advised that appellant had a work-related injury, he attributed appellant’s symptoms to
cervical spine degenerative disease. OWCP has not accepted cervical spine degenerative disease. The Board notes
that, for a condition not accepted or approved by OWCP, appellant has the burden of proof to establish that the
condition is causally related to the employment injury. Jaja K. Asaramo, 55 ECAB 200 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2014
Washington, DC

Christopher J. Godfrey, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALBANY STRATTON VETERANS AFFAIRS
MEDICAL CENTER, Albany, NY, Employer
__________________________________________

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

Docket No. 18-1213
Issued: July 30, 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 May 29, 2018 appellant filed a timely appeal from a May 1, 2018 merit decision and a
May 17, 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.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to rescind its acceptance of
appellant’s claim for left knee contusion; and (2) whether OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2013 appellant, then a 43-year-old program manager, filed a traumatic injury
claim (Form CA-1) alleging that on June 28, 2013 he sustained an injury when he slipped on a wet
floor and fell on his left knee while in the performance of duty. He did not stop work. On the
reverse side of the form, appellant’s immediate supervisor checked a box to indicate that appellant
had not lost time from work or incurred medical expenses. OWCP did not make a formal
determination regarding appellant’s traumatic injury claim.
On December 21, 2018 appellant filed a notice of recurrence (Form CA-2a) for medical
treatment commencing February 20, 2018 due to his June 28, 2013 injury.
OWCP received a July 1, 2013 report from Dr. Gene R. Pellerin, an osteopath Boardcertified in emergency medicine, who noted that appellant reported slipping on a wet floor at work
on June 28, 2013 and striking the lateral part of his left knee.2 Dr. Pellerin indicated that he had
not reported a gait disturbance, but complained of pain at the site of impact and behind the knee.
He advised that the findings on physical examination of the left knee revealed no bruising,
swelling, effusion, or crepitus. Appellant’s left knee joint was stable and his gait and stride were
normal. Dr. Pellerin diagnosed contusion of the left knee post fall and indicated that the pain
behind appellant’s left knee could be due to a Baker’s cyst rather than an acute injury. He released
appellant to full-duty work.3
In a July 15, 2013 report, Dr. Pellerin advised that appellant complained of continued
lateral left knee pain and reported his belief that the medial part of appellant’s left knee was
swollen. The findings on physical examination revealed significant crepitus of the left knee at 160
to 180 degrees of extension, but the knee was stable on testing in all directions. Dr. Pellerin
diagnosed “effusion left knee post fall.”
In a February 20, 2017 report, Dr. Pellerin indicated that appellant presented with left
lateral knee pain and intermittent “puffiness” which he reported never resolved after the 2013
employment injury. A February 23, 2018 magnetic resonance imaging (MRI) scan of appellant’s
left knee contained an impression of Baker’s cyst (unchanged) and no significant internal
derangement.
By decision dated March 1, 2018, OWCP accepted appellant’s claim for left knee
contusion. It noted that effusion was not a valid diagnosis, but rather was a symptom.
Appellant subsequently submitted a March 9, 2018 report from Dr. James I. Harding, a
Board-certified orthopedic surgeon, who noted that appellant reported an injury to his left knee
approximately four years prior when he slipped and fell on a wet floor, striking his left knee on
the floor. Dr. Harding indicated that appellant complained of pain over the lateral aspect of
appellant’s left knee without instability and reported episodes of catching while he was walking.
He discussed the findings of a left knee MRI scan and indicated that they were relatively benign
2

The report was prepared by Susan Burkart-Jayez, a nurse practitioner, but was cosigned by Dr. Pellerin.

3

Dr. Pellerin also released appellant to full-duty work in a note dated July 1, 2013.

2

with no definitive pathology noted. Dr. Harding diagnosed left knee pain and possible
derangement of the lateral meniscus. He opined that the mechanism of appellant’s injury was
consistent with a lateral meniscus tear, as was the history of catching while walking.
In a March 16, 2018 letter, OWCP advised appellant that it proposed to rescind its prior
acceptance of his claim for left knee contusion because the claim was accepted in error. It
explained that, in a July 1, 2013 report, a nurse practitioner noted objectively that there was no
bruising or swelling of the left knee, yet diagnosed appellant with a left knee contusion. OWCP
indicated that, although Dr. Pellerin concurred with the diagnosis, “the objective findings [were]
not supportive of the diagnosis provided.” It afforded appellant 30 days to submit additional
evidence and argument challenging the proposed rescission action.
Appellant subsequently submitted Part B of an Authorization for Examination and/or
Treatment (Form CA-16) dated April 27, 2018 in which Dr. Harding noted that appellant reported
slipping and falling in 2013 while moving boxes at work. Dr. Harding reported findings of a lateral
meniscus tear on MRI scan and an examination consistent with a meniscus tear. He diagnosed
lateral meniscus tear of the left knee and he checked a box marked “Yes” indicating that the
diagnosed condition was caused or aggravated by the reported employment activity.
By decision dated May 1, 2018, OWCP finalized the proposed rescission of the acceptance
of appellant’s claim for left knee contusion. It found that the condition had been erroneously
accepted as Dr. Pellerin’s July 1, 2013 report did not contain objective findings supportive of the
diagnosis of left knee contusion. OWCP indicated that the evidence appellant submitted after
receiving its March 16, 2018 notice of proposed rescission did not alter its determination. It
concluded that the acceptance of his claim for left knee contusion was “invalidated based on the
weight” of Dr. Pellerin’s July 1, 2013 report.
On May 10, 2018 appellant requested reconsideration of OWCP’s May 1, 2018 decision.
In an accompanying statement, he asserted that OWCP had not explained the error in its original
March 1, 2018 decision accepting his claim and maintained that the medical reports of record
supported the acceptance of his claim. Appellant noted that the employing establishment had not
controverted his claim. He submitted a copy of the April 27, 2018 Form CA-16 report from
Dr. Harding which he had previously submitted.
By decision dated May 17, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his or her own motion or on application.4 The
Board has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and

4

5 U.S.C. § 8128.

3

issue a new decision.5 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided by
the compensation statute.6
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory provision,
where there is good cause for so doing, such as mistake or fraud. Once OWCP accepts a claim, it
has the burden of proof to justify termination or modification of compensation benefits. This also
holds true where OWCP later decides that it erroneously accepted a claim.7
OWCP bears the burden of proof to justify rescission of acceptance on the basis of new
evidence, legal argument, and/or rationale.8 Probative and substantial positive evidence or
sufficient legal argument must establish that the original determination was erroneous. OWCP
must also provide a clear explanation of the rationale for rescission.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to rescind its acceptance of
appellant’s claim for left knee contusion.
On March 1, 2018 OWCP accepted appellant’s claim for a June 28, 2013 left knee
contusion based on a July 1, 2013 report of Dr. Pellerin. In this report, Dr. Pellerin explicitly
diagnosed the condition of left knee contusion post fall. In its March 16, 2018 notice of proposed
rescission and May 1, 2018 decision finalizing the rescission action, OWCP expressed its belief
that the physical examination findings recorded on July 1, 2013 contradicted the left knee
contusion diagnosis provided by Dr. Pellerin on even date.
The Board finds, however, that OWCP did not properly develop the case to clarify the
medical evidence prior to finalizing its rescission action. Lacking such development, it did not
adequately explain why the explicit diagnosis of left knee contusion by Dr. Pellerin, a qualified
physician under FECA, was invalid. Therefore, OWCP has not adequately explained the basis for
rescinding its acceptance of appellant’s claim for left knee contusion. OWCP’s procedures provide
that, when it has been determined that the original decision may have been issued in error, the
claims examiner is responsible for performing any necessary case development to fully resolve the
issue. If, after proper development, it is established that the original decision was issued in error,
the claims examiner is responsible for issuing a proposed and final decision rescinding the original

5

See L.M., Docket No. 19-0705 (issued September 11, 2019); John W. Graves, 52 ECAB 160, 161 (2000). See
also 20 C.F.R. § 10.610.
6

D.W., Docket No. 17-1535 (issued February 12, 2018).

7

V.R., Docket No. 18-1179 (issued June 11, 2019).

8

See L.G., Docket No. 17-0124 (issued May 1, 2018).

9

See W.H., Docket No. 17-1390 (issued April 23, 2018).

4

finding.10 The Board notes that, prior to finalizing its rescission action, OWCP did not develop
the medical evidence with Dr. Pellerin or otherwise obtain evidence which would adequately
explain its determination that the left knee contusion diagnosis provided on July 1, 2013 was
invalid.
The Board finds that OWCP did not clearly explain its determination that its prior
acceptance of appellant’s claim for left knee contusion was erroneous, and it therefore improperly
rescinded its prior acceptance of this condition.11 In order to rescind acceptance of a given
condition, OWCP must show that the weight of the reliable evidence establishes that the
acceptance of the claim was erroneous.12 The evidence used to rescind a claim should be
thoroughly discussed so that it is clear to the reader how the case was incorrectly adjudicated and
why the original decision is now being invalidated.13 For the above-described reasons, OWCP has
not met these requirements for justifying its rescission action in the present case.14
CONCLUSION
The Board finds that OWCP has not met its burden of proof to rescind its acceptance of
appellant’s claim for left knee contusion.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.19(b) (February 2013).
OWCP’s procedures further provide that such development might include requesting a medical report from the
claimant’s treating physician. Id. at Chapter 2.1400.19(c).
11
Compare K.E., Docket No. 18-1191 (issued April 15, 2020) (OWCP provided clear explanation for the basis of
its rescission action).
12

L.G., Docket No. 17-0124 (issued May 1, 2018); A.W., Docket No. 11-1915 (issued August 21, 2012). See also
D.S., Docket No. 17-0250 (issued August 29, 2017).
13

See supra note 10 at Chapter 2.1400.19(d). See also D.S., Docket No. 17-0250 (issued August 29, 2017).

14

Given the Board’s disposition of the merit issue of this case, the nonmerit issue is moot. The Board further notes
that, with respect to the submitted April 27, 2018 Form CA-16 from Dr. Harding, a properly completed Form CA-16
form authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. The period for which treatment
is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.
20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., Docket No. 17-1655 (issued
January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: July 30, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENT OF THE TREASURY, OFFICE
OF THE COMPTROLLER OF THE
CURRENCY, Downers Grove, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-0089
Issued: November 3, 2021

Case Submitted on the Record

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

On October 29, 2020 appellant sought appeal from a purported May 1, 2020 decision of
the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
assigned Docket No. 21-0089.
The Board, having duly considered this matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3. This jurisdiction encompasses any final adverse
decision issued by OWCP within 180 days of the date appellant filed her appeal. 3
1

The Board notes that appellant submitted new evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
2

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

Although the case record as transmitted to the Board does contain a document from OWCP
dated May 1, 2020, it is an informational letter and, thus, does not constitute a final adverse
decision subject to review under 20 C.F.R. §§ 501.2(c) and 501.3(a). As there is no final adverse
decision over which the Board may properly exercise jurisdictio n, the Board concludes that the
appeal docketed as No. 21-0089 must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No 21-0089 is dismissed.
Issued: November 3, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
4

2


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Houston, TX, Employer
)
___________________________________________ )
K.M., Appellant

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

Docket No. 11-10
Issued: August 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 1, 2010 appellant filed a timely appeal from the July 12, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) terminating compensation benefits.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective December 22, 2007.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In an April 12, 2010
decision, the Board found that OWCP did not meet its burden of proof to terminate
compensation benefits effective December 22, 2007, due to a conflict in the medical evidence.
Dr. Marvin Chang, an attending physician Board-certified in pain medicine, supported
continuing residuals of the employment injury, while Dr. James Hood, a Board-certified
orthopedic surgeon and second opinion physician, opined that appellant no longer had any
residuals of her work injury. The facts and history contained in the prior appeal are incorporated
by reference.
On April 28, 2010 OWCP referred appellant along with a statement of accepted facts, and
the medical record to Dr. Frank Barnes, a Board-certified orthopedic surgeon for an impartial
medical evaluation to resolve the conflict in opinion between Drs. Chang and Hood as to whether
she had residuals from her work injury.
In an April 30, 2010 report, Dr. Chang noted that appellant was seen for follow up of
chronic pain syndrome secondary to cervical spondylosis with cervical intervertebral disc
derangement. He noted that appellant was trying to get her claim reopened and was only taking
Advil for pain. Dr. Chang recommended prescription medication.
In a May 24, 2010 report, Dr. Barnes reviewed appellant’s history of injury and medical
treatment. He examined appellant and noted findings which included that the cervical and
lumbar spine curvature reversal was normal. Dr. Barnes noted that the right shoulder was
normal and had the same range of motion as her left shoulder. Muscle testing and sensory
testing of the arms was normal. Testing of the lumbar spine revealed no evidence of
radiculopathy. Dr. Barnes diagnosed cervical degenerative disc disease, lumbar strain syndrome
and right shoulder strain. He determined that appellant had no detectable residuals regarding her
right shoulder and cervical spine. At the lumbar spine, there was a discrepancy in size for the
right and left calf; however, it was unlikely to be the residual of a sprain. Dr. Barnes found that
there were no residuals from the October 5, 2006 employment injury. He advised that a
magnetic resonance imaging (MRI) scan showed degenerative changes not due to acute trauma.
Dr. Barnes recommended a work hardening program to return her to her usual work. He noted
that the only abnormal physical finding was asymmetry of her calves and two Waddell’s signs,
which did not correlate with her MRI scan findings. Dr. Barnes opined that appellant sustained a
soft tissue injury which usually will heal in its own course whether or not it is treated. In an
accompanying work capacity evaluation form, he opined that appellant could perform her usual
job. Dr. Barnes listed no work restrictions.
In a letter dated June 21, 2010, OWCP requested that Dr. Barnes clarify his opinion with
respect to whether appellant was disabled after December 22, 2007. In a July 5, 2010 addendum,
Dr. Barnes opined that his examination and his review of appellant’s medical records did not
reveal any objective evidence to support that she was disabled after December 22, 2007.

2

Docket No. 09-1127 (issued April 12, 2010).

2

By decision dated July 12, 2010, OWCP, terminated appellant’s compensation benefits
effective December 22, 2007, on the grounds that appellant had no continuing residuals of her
employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.5 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.6
Furthermore, FECA provides that, if there is disagreement between the physician making
the examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.7 In cases where OWCP has referred appellant to an impartial
medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.8
ANALYSIS
Following the Board’s prior decision, OWCP properly referred appellant to an impartial
medical examiner, Dr. Barnes, to resolve the medical conflict between Drs. Chang and Hood.
The Board finds that Dr. Barnes’ May 24 and July 5, 2010 reports are sufficiently well
rationalized and based upon a proper factual background such that they are entitled to special
weight in establishing that residuals of appellant’s employment injury had ceased and that any
disability ended by December 22, 2007. Dr. Barnes reviewed appellant’s medical history,
reported his examination findings and determined that there were no objective findings to
correspond with appellant’s subjective complaints. He found no objective evidence of any work
related disability or residuals. Dr. Barnes advised that MRI scan findings were degenerative in
nature and not due to acute trauma. He examined appellant and noted findings which included
that the cervical and lumbar spine curvature reversal was normal. Dr. Barnes also found the right
shoulder was normal and had the same range of motion as her left shoulder. He explained that
3

Curtis Hall, 45 ECAB 316 (1994).

4

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

5

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

6

Calvin S. Mays, 39 ECAB 993 (1988).

7

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

8

Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).

3

regarding the lumbar spine, there was a discrepancy in size for the right and left calf; however, it
was unlikely to be the residual of a sprain. Dr. Barnes opined that there were no residuals from
the October 5, 2006 employment injury. He advised a work hardening program to return
appellant to her usual work.
On June 21, 2010 OWCP requested that Dr. Barnes clarify whether appellant was
disabled on or after December 22, 2007.9 In a July 5, 2010 addendum, Dr. Barnes opined that
his examination and review of the medical record did not reveal any objective evidence to
support that appellant was disabled after December 22, 2007.
In these circumstances, OWCP properly accorded special weight to the impartial medical
examiner’s findings. When an impartial medical specialist is asked to resolve a conflict in
medical evidence, his opinion, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.10 The Board finds that Dr. Barnes’ reports represent
the weight of the medical evidence and establish that there are no continuing residuals or
disability of the October 5, 2006 work injury.
The Board also notes that Dr. Chang submitted an April 30, 2010 report. However,
Dr. Chang’s diagnosed conditions were not accepted by OWCP and did not specifically address
the cause of appellant’s conditions. Furthermore, as he had been on one side of the conflict in
the medical opinion that the impartial specialist resolved, his subsequent opinion will generally
be insufficient to overcome the special weight accorded the impartial specialist or to create a new
medical conflict.11 There is no other medical evidence contemporaneous with Dr. Barnes’
reports supporting any continuing residuals of the accepted lumbar, cervical and right shoulder
sprains.
On appeal, appellant contends that, despite the Board’s previous reversal of OWCP’s
decision, she was denied compensation benefits. She also asserts that her condition remains
work related and her work injury may have aggravated a prior injury in a separate claim.12 After
the Board’s prior decision, OWCP referred appellant to Dr. Barnes to resolve the medical
conflict. As noted, Dr. Barnes’ opinion established that there were no ongoing residuals of the
work injury and no work-related disability after December 22, 2007. Consequently, there is no
entitlement to wage-loss compensation after December 22, 2007. Appellant also stated that
Dr. Barnes was not the doctor who examined her in 2007. As explained, the conflict was created
between Drs. Chang and Hood regarding whether appellant continued to have residuals from her
work injury, thus referral to an impartial new physician, Dr. Barnes, was required under 5 U.S.C.
9

The Board has held that, when OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or elaboration, OWCP
must secure a supplemental report from the specialist to correct the defect in his original report. Talmadge Miller,
47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA) Procedure Manual,
Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(c)(1)-(2) (April 1993).
10

See supra notes 7 and 8.

11

Barbara J. Warren, 51 ECAB 413 (2000); Alice J. Tysinger, 51 ECAB 638 (2000).

12

Should appellant feel that her current conditions pertain to a separate claim, she should contact OWCP
regarding the other claim.

4

§ 8123(a). Appellant stated that Dr. Barnes suggested work hardening before he clarified his
opinion. The Board notes that Dr. Barnes did not state that this was necessitated by the work
injury and the physician clearly did not support ongoing work-related residuals. Appellant
referred to Dr. Albina, a previous referral physician in the claim, and Dr. Hood. She contended
charges were brought against them for unprofessional conduct and inappropriate behavior. The
Board notes that the record does not contain any documentation regarding these assertions.
There is no evidence of record that either physician was unqualified to render an opinion at the
time appellant was examined. Furthermore, Dr. Albina’s opinion is not part of the medical
conflict that gave rise to appellant’s referral to Dr. Barnes. The Board also notes that subsequent
to the Office’s July 12, 2010 decision, additional evidence was received. The Board has no
jurisdiction to review this evidence for the first time on appeal.13
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s
compensation benefits effective December 22, 2007.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

5