United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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D.A., Appellant
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and
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DEPARTMENT OF THE NAVY, NAVAL
)
WEAPONS CENTER, China Lake, CA,
)
Employer
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___________________________________________ )

Docket No. 08-56
Issued: April 1, 2008

Appearances:
Dr. Larry Coates, Ph.D., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On October 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated May 11, 2007, denying further merit review of
her claim. The most recent merit decision of the Office is dated April 6, 2006, which denied her
claim for a recurrence of disability beginning June 23, 2005. Because more than one year has
elapsed between the most recent merit decision of the Office and the filing of this appeal on
October 5, 2007, the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a February 3, 2004
decision, the Board found that appellant established entitlement to wage-loss compensation for
time lost from work due to medical appointments during the period September 26 to
November 13, 2000. However, appellant did not establish entitlement to compensation for other
dates claimed from April 13, 1994 to September 6, 2001. The facts and the history contained in
the prior appeal are incorporated by reference.
In a March 28, 2005 statement of reasonable accommodation, Daniel Care, a financial
administrator with the employing establishment, noted that appellant was given accommodations
which included keys to the office so that she could work as necessary, the ability to work at a
specific location that she preferred, the ability to discuss her needs with her directors in an “open
door” policy, the ability to take annual leave and sick leave as needed, a simplified workload,
daily monitoring and encouragement to discuss issues pertaining to her medical condition.
Appellant subsequently filed several CA-7 forms for disability for the period March 29 to
June 15, 2004.
On April 15, 2005 appellant filed an occupational disease claim alleging major
depression. She first became aware of the disease on July 29, 1997. Appellant noted that she
already had an approved claim.
In a May 27, 2005 report, Dr. Gary Freedman, a Board-certified psychiatrist and
neurologist, noted that he had last evaluated appellant on June 3, 2004. At that time, appellant
informed him that she had accepted a job in Japan and was relocating. Dr. Freedman had
previously diagnosed major depressive disorder and he stated that, despite being unable to
examine appellant “face to face,” her condition did not remain “static.” Appellant made
arrangements to leave her present job situation in Japan as she indicated that “she does not
believe that she can survive in her current situation and in lieu of completely falling apart, has
made arrangements to return to the United States to her previous residence in Ridgecrest,
California to try and find some measure of stability in her life.” Dr. Freedman opined that
appellant was “unable to perform useful and efficient service because of a well-documented
disease, in this case major depressive disorder recurrent, either in her current position or within a
vacant position.”
Appellant filed an additional Form CA-7, claiming compensation for the period June 26,
2005 to the present. On July 26, 2005 she filed an occupational disease claim alleging severe
depression and stress and teeth grinding. Appellant first realized the disease or illness was
caused or aggravated by her employment on December 15, 1997.

1

Docket No. 03-2174 (issued February 3, 2004). Appellant’s November 24, 2000 decision was accepted by the
Office for major depression.

2

By letter dated August 8, 2005, the Office advised appellant that it had received her claim
for a recurrence of disability.2 The Office advised appellant of the evidence needed to support
her claim and requested that she submit additional evidence within 30 days.
In an August 11, 2005 report, Dr. Freedman noted that appellant had returned to the
United States and that he had examined her on July 7, 2005. He diagnosed major depressive
disorder recurrent with intermittent suicidal ideation and advised that appellant was exposed to a
severe workload and other work stressors relative to her experience in Japan. Dr. Freedman
opined that she was totally disabled.
In an August 16, 2005 report, Dr. Wade W. Hayashi, a dentist, opined that appellant was
in need of significant dental work, including gum treatments and a night guard. He related that
appellant’s condition was caused by job stress.
In an August 18, 2005 statement, appellant noted that her claim was previously accepted
for major depression, and the employing establishment had accommodated her condition by
allowing her to have hourly breaks, quiet time and a reduced workload. However, her position
was abolished due to a reduction-in-force. Appellant was subsequently offered a position in
Japan, for a one-year obligation. She alleged that the employing establishment promised to
accommodate her restrictions. Appellant moved to Japan on June 26, 2004 and experienced high
stress, a high workload, and an unprofessional and hostile environment.
In a March 18, 2006 statement, appellant noted that June 23, 2005 was her last day of
work in Japan. She returned to the United States as she was forced to resign “due to the
extremely high workload.” Appellant alleged that her work accommodations were not honored
in Japan and she filed for disability retirement prior to leaving. She stated that she filed her
present claim to be compensated for lost wages from June 2005 to February 2006. Appellant
completed a Form CA-7 for this time frame.
By decision dated April 6, 2006, the Office denied appellant’s claim for a recurrence of
disability finding that the medical evidence was insufficient to establish that her disability for
work beginning June 23, 2005 was due to the accepted work injury. Appellant was advised that
the new evidence did not establish a recurrence because she was exposed to new work factors in
Japan and that she should file a new occupational disease claim for her emotional condition, as it
was considered a new injury. The Office also advised appellant that she could file a new
occupational disease claim for her teeth grinding condition.
By letter dated April 19, 2006, appellant requested reconsideration. Regarding her claim
for a recurrence, she alleged that her illness had never resolved or lessened, but rather had
worsened. Appellant again noted that, when her claim was accepted, she was given work
accommodations. When she accepted her overseas position, she was told there were medical
resources to meet the needs of her illness, but that none were available. There was a physician
who had “skills with deep breathing exercises” but that a Board-certified psychologist was not
available. Appellant alleged that the workload was heavier, she had no support system, family,
or Equal Employment Opportunity (EEO) accommodations, and that she became more suicidal
2

The Office treated appellant’s occupational disease claim as a claim for a recurrence of disability.

3

and depressed. She noted that June 23, 2005 was her last day of work overseas and that she was
“forced to resign from government service due to the extremely high workload (workload higher
than in previous position).” Appellant returned home to seek treatment with her physicians. She
indicated that a doctor’s report would be forthcoming and that her medical condition of
“bruxism” would be addressed. Appellant requested compensation for lost wages from
June 2005 to February 2006 and assistance with leave buyback.
By decision dated June 12, 2006, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that her request was repetitive and
irrelevant. The Office found that her request failed to show that the Office erroneously applied
or interpreted a specific point of law, and failed to advance relevant legal evidence not
previously considered by the Office and was thus insufficient to warrant review of its prior
decision.
On January 29, 2007 appellant filed a Form CA-7 for the period July 26, 2006 to the
present. She also filed a Form CA-7 for the period June 28 to December 17, 2005.
On February 12, 2007 appellant requested reconsideration. She indicated that she would
be forwarding an additional doctor’s report.
By decision dated May 11, 2007, the Office denied appellant’s request for review on the
grounds that it neither raised substantive legal questions nor included new and relevant evidence
sufficient to require the Office to review its prior decision. The Office also noted that no
additional medical report was received.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

4

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with the denial of her claim for a recurrence and requested
reconsideration on February 12, 2007. The underlying issue on reconsideration was whether she
sustained a recurrence of disability after June 23, 2005 causally related to her accepted
December 15, 1992 claim, accepted for major depression. However, appellant did not provide
any relevant or pertinent new evidence to the issue of whether her disability after June 23, 2005
was causally related to her accepted major depression. She did not submit any new medical
evidence with regard to whether her disability after June 23, 2005 was causally related to her
accepted 1992 claim. Appellant requested reconsideration on February 12, 2007 and noted that a
medical report would be “forthcoming.” However, no additional report was received. Appellant
did not make any other arguments.
Consequently, appellant has not submitted relevant and pertinent new evidence not
previously considered by the Office; nor has she shown that the Office erroneously applied or
interpreted a specific point of law, or advanced a relevant new argument not previously
considered by the Office. Therefore, the Office properly denied her request for reconsideration
without conducting a merit review of the claim.
CONCLUSION
The Board finds that the Office of Workers’ Compensation Program properly refused to
reopen appellant’s case for further review of the merits of her claim under 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2007 is affirmed.
Issued: April 1, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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)
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)
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)

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

Docket No. 19-1407
Issued: February 13, 2020

Case Submitted on the Record

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

JURISDICTION
On June 14, 2019 appellant filed a timely appeal from a May 23, 2019 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 met his burden of proof to establish a diagnosed medical
condition causally related to the accepted January 22, 2019 employment incident.
FACTUAL HISTORY
On January 28, 2019 appellant, then a 66-year-old distribution facilities specialist, filed a
traumatic injury claim (Form CA-1) alleging that on January 22, 2019 he injured his head and back
1

5 U.S.C. § 8101 et seq.

when he slipped on ice on the ground and fell while in the performance of duty. He did not stop
work.
Appellant submitted a February 3, 2019 a state workers’ compensation medical form from
Dr. Harry Wallus, Board-certified in emergency medicine. Dr. Wallus indicated that appellant fell
on January 22, 2019 and diagnosed a compression fracture. He checked a box marked “yes”
indicating that appellant’s condition was a result of the January 22, 2019 incident. In a treatment
note of even date, Dr. Wallus noted that appellant initially presented to the emergency department
on January 25, 2019 complaining of worsening low back pain after slipping and falling at work,
landing on his sacrum and lumbar back.
In a February 3, 2019 medical report, Dr. Devin Keefe, Board-certified in emergency
medicine, provided that appellant presented with acute lumbar back pain and tenderness in the
lower spine over L4-5, as well as bowel dysfunction after a mechanical slip and fall. The same
day, appellant underwent a computerized tomography (CT) scan of his abdomen and pelvis
interpreted by Dr. Jonathon Lee, a Board-certified diagnostic radiologist. Dr. Lee found a T12
superior endplate compression fracture with 10 percent vertebral body height loss. Appellant also
underwent a magnetic resonance imaging (MRI) scan of his lumbar spine interpreted by Dr. Mark
Giovannetti, a Board-certified diagnostic radiologist. Dr. Giovannetti found a compression
deformity along the superior endplate of T12 with approximately 10 percent loss of height of the
body. Based on this information, Dr. Keefe diagnosed appellant with a T12 superior endplate
compression fracture and noted that the injury was new based on a previous October 22, 2018 CT
scan that did not reveal a fracture. In his discharge instructions, he explained that compression
fractures of the spine were typically caused by a compressing force, such as an auto accident or a
fall.
In a development letter dated April 15, 2019, OWCP informed appellant that his claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus, limited
expenses had, therefore, been authorized. However, a formal decision was now required. OWCP
requested that appellant submit a narrative medical report from his physician, which contained a
detailed description of findings and diagnoses, explaining how the reported incident caused or
aggravated his medical condition. It afforded him 30 days to respond. Appellant did not submit
any additional evidence.
By decision dated May 23, 2019, OWCP denied appellant’s traumatic injury claim, finding
that he had not submitted medical evidence containing a medical diagnosis in connection with the
claimed employment injury. It concluded, therefore, that the requirements had not been met to
establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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
2

Id.

2

time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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 evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that a disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.8
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of his claim, appellant provided a February 3, 2019 state workers’ compensation
medical form from Dr. Wallus wherein he noted that appellant fell on January 22, 2019 and
diagnosed a compression fracture as a result.
In a February 3, 2019 report, Dr. Keefe diagnosed a T12 superior endplate compression
fracture based on a review of a CT scan of appellant’s abdomen and pelvis and an MRI scan of his
lumbar spine, specifically noting that the findings were new in comparison to an October 22, 2018
diagnostic study that revealed no positive findings.
3

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
7

H.B., Docket No. 18-0781 (issued September 5, 2018).

8

D.H., Docket No. 18-1410 (issued March 21, 2019).

3

As the medical evidence of record establishes a diagnosed condition, the case must
be remanded for consideration of the medical evidence with regard to the issue of causal
relationship. Following such further development as deemed necessary, OWCP shall issue a de
novo decision.9
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: February 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9

E.C., Docket No. 19-0854 (issued October 17, 2019).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Harrisburg, PA,
Employer
__________________________________________

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)
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)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 18-0757 &
18-1705
Issued: November 14, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 21, 2018 appellant, through counsel, filed a timely appeal from an August 25,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Board
assigned the appeal Docket No. 18-0757. On August 21, 2018 appellant filed a timely appeal from
a March 8, 2018 nonmerit decision of OWCP, which the Board assigned Docket No. 18-1705.
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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s August 25, 2017 merit decision was Wednesday,
February 21, 2018. Because using February 26, 2018, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of mailing is considered the date of filing. The U.S. Postal
Service tracking history reveals that the appeal was mailed February 21, 2018, rendering the appeal timely filed. See
20 C.F.R. § 501.3(f)(1).

Pursuant to the 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she was
totally disabled for the period April 2 through August 28, 2016, causally related to her accepted
April 14, 2015 right elbow injury; and (2) whether OWCP properly denied appellant’s
December 12, 2017 request for reconsideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On April 30, 2015 appellant, then a 47-year-old laborer custodian, filed a traumatic injury
claim (Form CA-1) alleging that, on April 14, 2015, she sustained right tennis elbow after cutting
and breaking down cardboard boxes. She stopped work on April 14, 2015, and returned to
modified employment on April 30, 2015. OWCP accepted the claim for right synovitis and
tenosynovitis.
On August 31, 2015 Dr. Matthew J. Espenshade, an osteopath, performed a partial lateral
epicondylectomy at the right elbow, a debridement and release of the extensor carpi radialis brevis,
and a repair of the collateral ligament.4 OWCP paid appellant wage-loss compensation for
temporary total disability beginning July 20, 2015.
On November 23, 2015 Dr. Espenshade noted that appellant continued to complain of
burning and pain on the right side. On examination he found mild swelling on the right with no
effusion. In a work restriction form, Dr. Espenshade determined that appellant could return to
modified employment on November 30, 2015 with no use of the affected arm.
The employing establishment offered appellant the position of modified custodian on
November 30, 2015. The position required cleaning horizontal and vertical surfaces and rails. The
physical requirements included no use of the right arm or cleaning overhead. Appellant accepted
the offered position.
On December 21, 2015 appellant filed a claim for compensation (Form CA-7) requesting
wage-loss compensation from November 28 to December 11, 2015. The employing establishment
advised that she had refused a November 30, 2015 job offer.
In a January 5, 2016 progress report, Dr. Espenshade noted that appellant advised that her
right elbow pain had not improved with surgery. He related, “[Appellant] is also complaining of
left elbow pain since she went back to work on light duty and she states [that] they made her use
her left elbow more.” Dr. Espenshade diagnosed status after a right elbow partial lateral
3

5 U.S.C. § 8101 et seq.

4
OWCP, on August 13, 2015, referred appellant to Dr. Robert R. Draper, Jr., a Board-certified orthopedic surgeon,
for a second opinion examination. In a report dated September 21, 2015, Dr. Draper noted that she had recently
undergone right elbow surgery and was unable to return to work. He estimated that appellant could perform lightduty employment in approximately six weeks.

2

epicondylectomy, debridement, and collateral repair and recommended diagnostic testing. He
opined that appellant’s subjective complaints outweighed the objective findings.
On January 25, 2016 Dr. Michael Darowish, a Board-certified orthopedic surgeon,
evaluated appellant for right lateral elbow pain due to a “work-related claim.” He diagnosed
persistent pain in the right lateral elbow after a lateral epicondylectomy and opined that she might
have a “latrogenic injury to the lateral ulnar collateral ligament….” Dr. Darowish also diagnosed
carpal and radial tunnel syndrome and internal impingement of the shoulder.
A magnetic resonance imaging (MRI) scan study of the right elbow, obtained on
January 27, 2017, revealed an “[a]bnormal appearance of the common extensor tendon origin upon
the lateral epicondyle with abnormal fluid signal interposed between the tendon and the adjacent
epicondyle and some proximal thickening.”
On January 29, 2016 the employing establishment advised that appellant had not returned
to work.
OWCP, on February 1, 2016, notified appellant of its proposed termination of her wageloss compensation under 20 C.F.R. § 10.500(a) as she declined to accept an offered position within
her work restrictions. It provided her 30 days to report to the assigned position or show that her
refusal was justified.
In a February 8, 2016 progress report, Dr. Darowish advised that the MRI scan study
showed detachment of the lateral ulnar collateral ligament from the humeral insertion. He
recommended a radial nerve compression and lateral ulnar collateral ligament repair, noting that
it was a “relatively extensive surgery” with a long recovery. Dr. Darowish opined that appellant
could work with restrictions of lifting, pushing, and pulling up to one pound with her right hand
and performing no repetitive activities pending surgery.
Dr. Espenshade, on February 9, 2016, indicated that the MRI scan study showed a
questionable retear that he did not believe was significant. He advised that he had released
appellant to resume work using only her left hand, but she did not return, noting that she “states
she still would not be able to do that type of job just using her left hand.” Dr. Espenshade
diagnosed right elbow pain, right elbow radial neuritis, and status post right lateral debridement
and release. He found that appellant could continue working with limited-duty restrictions.
By decision dated March 28, 2016, OWCP denied appellant’s claim for wage-loss
compensation beginning November 30, 2015 under section 10.500(a) as she failed to accept a
November 30, 2015 modified-duty assignment within her restrictions. It noted that the offered
position was within the work restrictions set forth by Dr. Espenshade. OWCP informed appellant
that if the employing establishment withdrew the limited-duty position or if her condition
worsened such that she was unable to perform the assignment, she could file a notice of recurrence
of disability.

3

On March 30, 2016 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.5
Dr. Darowish, on March 16, 2016, performed a right radial tunnel decompression and right
lateral ulnar collateral ligament repair. OWCP paid appellant wage-loss compensation for
temporary total disability from March 16 to April 1, 2016.
In return to work forms dated May 3 and June 28, 2016, Dr. Darowish found that appellant
was unable to work.
Dr. Darowish, in an August 23, 2016 report, noted that appellant was doing well after a
right radial tunnel decompression and right elbow lateral collateral repair, but had some continued
numbness and tingling in the radial nerve and right hand, and bilateral wrist pain. He diagnosed
status post right radial tunnel decompression, right hand numbness at night that he believed was
carpal tunnel syndrome, and bilateral wrist pain that he believed was de Quervain’s tenosynovitis.
In an August 23, 2016 return to work form, Dr. Darowish opined that appellant could resume
sedentary work lifting, pushing, and pulling not more than one pound with the right hand, and
performing no repetitive activities with the right upper extremity.
Appellant, on August 29, 2016, accepted a modified laborer custodial position with the
employing establishment.
On September 21, 2016 appellant filed a notice of recurrence of disability (Form CA-2a)
on November 30, 2015 causally related to her April 14, 2015 employment injury. She advised that
she had stopped work on November 30, 2015 and returned to work on August 29, 2016. The
employing establishment indicated that appellant went home on November 30, 2015 stating that
she could not perform an offered light-duty position.
OWCP, on September 28, 2016, notified appellant of the definition of a recurrence of
disability and requested that she submit a reasoned report from her physician explaining the causal
relationship between any disability and the accepted work injury.
Following an October 25, 2016 telephone hearing, by decision dated December 12, 2016,
an OWCP hearing representative affirmed the March 28, 2016 decision terminating appellant’s
compensation under section 10.500(a). He noted that she stopped work on November 30, 2015
after for less than two hours. The hearing representative further indicated that OWCP paid
appellant wage-loss compensation from March 16 to April 1, 2016. He found that the March 28,
2016 sanction decision pertained only to disability compensation from November 30, 2015 to
March 15, 2016, and that compensation for wage loss subsequent to that date should be separately
adjudicated.
In a report dated October 25, 2016, Dr. Darowish diagnosed bilateral de Quervain’s
tenosynovitis and possible cubital tunnel syndrome. He indicated that appellant could work lifting,

5
In a March 8, 2016 progress report, Dr. Darowish noted that he had scheduled appellant for surgery on
March 16, 2016.

4

pushing, and pulling no more than two pounds with the right hand and performing no repetitive
work duties with her right hand.
By decision dated December 16, 2016, OWCP found that appellant had not established a
recurrence of disability beginning November 30, 2015 causally related to her accepted
employment injury. It noted that it had previously found that she stopped work after refusing a
suitable, limited-duty position. OWCP determined that appellant sought treatment from
Dr. Darowish without prior authorization.
Appellant, through counsel, on December 27, 2016 requested an oral hearing on the
December 16, 2016 decision before an OWCP hearing representative. At the telephone hearing,
held on June 12, 2017, he asserted that her initial surgery by Dr. Espenshade was unsuccessful,
but that Dr. Darowish subsequently operated on her right elbow on March 16, 2016 and confirmed
that she had a torn ligament. Counsel noted that following the repair appellant improved and
returned to work. Appellant related that she had returned to modified work on August 29, 2016
and to her usual employment in March 2017.
OWCP thereafter received a December 8, 2016 report from Dr. Darowish. Dr. Darowish
discussed his treatment of appellant beginning January 2016. He related that a January 27, 2016
MRI scan study showed that the lateral ulnar collateral ligament was detached from the humeral
insertion and that surgery performed March 16, 2016 confirmed “obvious detachment” and
compression of the radical nerve showing radial tunnel syndrome. Dr. Darowish advised that
reviewing the MRI scan study obtained prior to Dr. Espenshade’s surgery showed similar findings
to the January 27, 2016 MRI scan study. He related that appellant currently had de Quervain’s
tenosynovitis, which was “a separate issue from her initial elbow complaints.” Dr. Darowish
indicated that the relevant diagnoses were right lateral epicondylitis, right lateral ulnar collateral
ligament detachment, and right radial tunnel syndrome. He advised that the detachment of the
lateral ulnar collateral ligament could be the result of a traumatic event, but found that appellant
had not experienced such an event. Dr. Darowish attributed the condition to degeneration of the
lateral epicondyle from the lateral epicondylitis. He explained the process of micro tears causing
degeneration and advised, “This degenerative material is not as strong as usual tendon, and so the
[individual] continues to perform activities where the wrist is extended, as would be part of
[appellant’s] job activities as a postal carrier, the degenerative material is more likely to re-micro
tear.” Dr. Darowish opined that as the degeneration grew it affected the insertion of the lateral
ulnar collateral ligament and extensor carpi radialis brevis.
By decision dated August 25, 2017, OWCP’s hearing representative affirmed the
December 16, 2016 decision. She noted that OWCP had previously denied appellant’s request for
wage-loss compensation through March 15, 2016. The hearing representative noted that appellant
underwent additional surgery on March 16, 2016, but found that she had not submitted sufficient
medical evidence showing that she was unable to perform the limited-duty assignment due to her
employment injury.
On December 12, 2017 appellant, through counsel, requested reconsideration of the
December 12, 2016 decision finding that she was not entitled to wage-loss compensation
beginning November 30, 2015 pursuant to section 10.500(a).
On February 21, 2018 appellant appealed the August 25, 2017 decision to the Board.
5

By decision dated March 8, 2018, OWCP denied appellant’s request for reconsideration
under section 8128(a) after finding that she had not raised a legal argument or submitted evidence
sufficient to warrant reopening her case for further merit review. It determined that she had
requested reconsideration of its August 25, 2017 decision rather than the December 12, 2016
decision.
On appeal, counsel argues that appellant’s condition worsened after the August 31, 2015
surgery by Dr. Espenshade and that a January 27, 2016 MRI scan study revealed detachment of
the lateral ulnar collateral ligament from the humeral insertion. He maintains that Dr. Darowish
explained the relationship of appellant’s condition to her work injury and that his opinion
constitutes the weight of the evidence. Counsel also asserts that OWCP erred in failing to properly
consider his December 12, 2017 request for reconsideration of the December 12, 2016 decision.
LEGAL PRECEDENT -- ISSUE 1
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden of
proof to establish by the weight of the reliable, probative, and substantial evidence, a recurrence
of total disability and to show that he or she cannot perform such light duty. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty job requirements.6
OWCP regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to the
work environment that caused the illness.7 This term also means an inability to work that takes
place when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn, (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed his
or her established physical limitations.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained right synovitis and tenosynovitis due to an
April 14, 2015 employment injury. It paid her wage-loss compensation for total disability
beginning July 20, 2015. On August 31, 2015 Dr. Espenshade performed surgery on appellant’s
right elbow. Subsequent to the surgery, he found that she could return to limited-duty employment
on November 30, 2015 without use of her right upper extremity. The employing establishment
offered appellant a modified position effective November 30, 2015 within the restrictions set forth
by Dr. Espenshade, but she did not return to work. By decision dated March 28, 2016, OWCP
6
Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
7

20 C.F.R. § 10.5(x).

8

Id.

6

found that she was not entitled to compensation beginning November 30, 2015 under section
10.500(a) as she refused to accept modified employment within her restrictions. In a decision
dated December 12, 2016, an OWCP hearing representative affirmed the March 28, 2016 decision.
He specified that the issue was appellant’s entitlement to wage-loss compensation from
November 30, 2015 to March 15, 2016, noting that OWCP had paid her compensation from
March 16 to April 1, 2016 following a second elbow surgery.
In September 2016, appellant filed a notice of recurrence of disability beginning
November 30, 2015 causally related to her April 14, 2015 employment injury. As noted, however,
OWCP previously adjudicated the issue of whether she was entitled to wage-loss compensation
from November 30 to March 15, 2016 and found that she was not entitled to wage-loss
compensation as she had refused an offer of suitable modified employment under section
10.500(a). It paid appellant wage-loss compensation from March 16 to April 1, 2016. Appellant
returned to work effective August 29, 2016. The issue, consequently, is whether she has
established that she was disabled from employment for the period April 2 through August 28,
2016, causally related to her accepted April 14, 2015 right elbow injury.
Appellant has not alleged that the employing establishment withdrew the offered limitedduty position. Instead, she attributed her recurrence of disability to a change in the nature and
extent of her employment-related conditions. Appellant must provide medical evidence to
establish that she was disabled due to a worsening of her accepted work-related conditions of right
synovitis and tenosynovitis.9
On February 8, 2016 Dr. Darowish advised that the MRI scan study he reviewed showed
detachment of the lateral ulnar collateral ligament from the humeral insertion and recommended
surgery. He determined that appellant could work with restrictions of lifting, pushing, and pulling
with her right hand up to one pound pending surgery. Dr. Darowish noted that after surgery she
would have an extended recovery period. He did not, however, specifically address causation or
attribute the need for surgery to the accepted work injury. Consequently, Dr. Darowish’s report is
of diminished probative value.10
In a report dated February 9, 2016, Dr. Espenshade advised that the MRI scan study
showed a possible retear that he did not believe was significant and found that appellant could
continue working with restrictions.
On March 16, 2016 Dr. Darowish performed a right radial tunnel decompression and repair
of the lateral ulnar collateral ligament. In May 3 and June 28, 2016 return to work forms, he
indicated that appellant was unable to work. Dr. Darowish, however, did not address the cause of
her disability. Medical evidence that does not offer an opinion regarding the cause of an
employee’s condition lacks probative value on the issue of causal relationship.11
Dr. Darowish, in an August 23, 2016 report, diagnosed status right radial tunnel
decompression and possible carpal tunnel syndrome and de Quervain’s tenosynovitis. He found
9

See Jackie D. West, supra note 6.

10

See J.S., Docket No. 18-0020 (issued August 8, 2018).

11

See S.E., Docket No. 08-2214 (issued May 6, 2009).

7

that appellant was doing well following her right elbow lateral collateral repair and radial tunnel
decompression and could resume sedentary work on August 29, 2016 lifting, pushing, and pulling
no more than one pound with the right side and performing no repetitive activities with the right
upper extremity. Appellant resumed work on August 29, 2016 within Dr. Darowish’s work
restrictions. Again, Dr. Darowish did not relate her need for surgery and resulting disability to the
April 14, 2015 employment injury and thus his opinion is of diminished probative value.12
On October 25, 2016 Dr. Darowish diagnosed bilateral de Quervain’s tenosynovitis and
possible cubital tunnel syndrome. He provided work restrictions. As Dr. Darowish did not address
the relevant issue of disability from April 2 to August 28, 2016, his report is insufficient to meet
appellant’s burden of proof.13
In a December 8, 2016 report, Dr. Darowish advised that the January 27, 2016 MRI scan
study showed detachment of the lateral ulnar collateral ligament from the humeral insertion and
that this finding was confirmed by the March 16, 2016 surgery. He diagnosed right lateral
epicondylitis, right lateral ulnar collateral ligament detachment, and right radial tunnel syndrome.
Dr. Darowish indicated that appellant had not experienced a traumatic event that would cause the
detachment of the lateral ulnar collateral ligament. He attributed the condition to degeneration
result from micro tears which he attributed to her work duties as a mail carrier. Appellant,
however, worked as a laborer/custodian and attributed her condition to cutting and breaking down
cardboard boxes. Dr. Darowish, consequently, relied upon an inaccurate history of injury.
Medical opinions based on an incomplete or inaccurate history of injury are of little probative
value.14 Further, OWCP has not accepted the detachment of the lateral ulnar collateral ligament
as employment related. Where appellant claims that, a condition not accepted or approved by
OWCP was due to her employment injury, she bears the burden of proof to establish that the
condition is causally related to the employment injury through the submission of rationalized
medical evidence.15 Dr. Darowish did not explain how the diagnosed condition resulted from the
identified work factor of breaking down cardboard boxes. Medical conclusions unsupported by
rationale are of little probative value.16
On appeal, counsel contends that reports from Dr. Darowish are rationalized and constitute
the weight of the evidence. As noted, however, he did not provide a reasoned opinion on causation
supported by a complete and accurate factual history and thus his opinion is of diminished
probative value.

12

Id.

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); C.H., Docket No. 17-1239 (issued November 20, 2017)
(the Board will not require OWCP to pay compensation for disability in the absence of any medical evidence directly
addressing the specific date of disability for which compensation is claimed).
14

See T.F., Docket No. 17-0645 (issued August 15, 2018).

15

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

16

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

8

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.17 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.18 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.19
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.20 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.21
The Board and OWCP may not simultaneously exercise jurisdiction over the same
issue(s).22
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly issued its March 8, 2018 nonmerit decision. On
December 12, 2017 counsel timely requested reconsideration of OWCP’s December 12, 2016
merit decision.23 However, OWCP mistakenly considered it as a request for reconsideration of its
August 25, 2017 merit decision. The two decisions address separate and distinct periods of
entitlement to wage-loss compensation. Because OWCP did not properly consider appellant’s
request for reconsideration of the December 12, 2016 decision, the Board finds that the March 8,
2018 nonmerit decision was improperly issued. Moreover, it lacked jurisdiction over the
August 25, 2017 decision because counsel requested review of that decision by the Board. As

17
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.607.

19

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of the OWCP 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 (iFECS). Id. at Chapter 2.1602.4b.
20

20 C.F.R. § 10.606(b)(3).

21

Id. at § 10.608(a), (b).

22

20 C.F.R. §§ 501.2(c)(3), 10.626; see, e.g., Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).

23

See supra note 19.

9

noted, the Board and OWCP may not simultaneously exercise jurisdiction over the same issue.24
Consequently, OWCP’s March 8, 2018 decision denying further merit review of the August 25,
2017 decision shall be set aside as null and void.25
CONCLUSION
The Board finds that appellant has not established that she was totally disabled for the
period April 2 through August 28, 2016 due to her accepted April 14, 2015 right elbow injury.
The Board further finds that OWCP’s March 8, 2018 nonmerit decision is null and void.26
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed. The Board further finds that OWCP’s March 8,
2018 decision is set aside as null and void.
Issued: November 14, 2018
Washington, DC

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

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

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

24

See supra note 22.

25

See J.D., Docket No. 17-0143 (issued July 20, 2017); Douglas E. Billings, 41 ECAB 880 (1990).

26
As such, counsel’s December 12, 2017 request for reconsideration of OWCP’s December 12, 2016 merit decision
is still pending before OWCP.

10


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0200
Issued: August 12, 2019

Case Submitted on the Record

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

JURISDICTION
On November 6, 2017 appellant filed a timely appeal from an August 22, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 22, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
periods February 8 to 19, February 23 to April 22, and May 2 to August 19, 2016 causally related
to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
Under OWCP File No. xxxxxx326 appellant, now a 56-year-old former rural carrier, has
an accepted traumatic injury claim for left shoulder sprain, thoracic sprain, and aggravation of
cervical degenerative disc disease (C5-6), which occurred in the performance of duty on
August 30, 2013. Beginning February 19, 2014, OWCP paid compensation for intermittent wage
loss on the supplemental rolls. As of December 13, 2014, it paid compensation based on
appellant’s loss of wage-earning capacity. Appellant was restricted to working part time (four
hours), limited duty and OWCP paid her four hours of wage-loss compensation per day. OWCP
placed her on the periodic compensation rolls effective July 26, 2015.
Appellant submitted a work release note from Dr. Jovie Bridgewater, a Board-certified
anesthesiologist, dated February 11, 2016, who treated her for increased neck pain, shoulder pain,
and spasm and advised that she could not return to work.
Appellant submitted a work excuse form dated February 16, 2016, signed by an
unidentified health care provider, who returned her to work on February 22, 2016 with restrictions
of no lifting over 20 pounds for a maximum of four hours a day.
On February 23, 2016 appellant filed a claim for compensation (Form CA-7) for total
disability due to a change or worsening of her accepted work-related conditions beginning
February 11, 2016. OWCP developed the claim as a recurrence of disability.4
Appellant submitted a work excuse form, dated February 23, 2016, from Dr. N. Craig
Clark, a Board-certified neurosurgeon, who indicated that she was off work from February 23 to
April 4, 2016. Dr. Clark noted that she would be reevaluated after she completed physical therapy.
In a return to work slip dated April 22, 2016, he indicated that appellant was unable to return to
work until she underwent an electromyogram (EMG) and had a follow-up visit.
Dr. Patrick M. Curlee, an orthopedic surgeon, treated appellant on March 8 and April 4,
2016 for increased neck pain extending to her shoulders bilaterally, interscapular region, and
3
Docket No. 17-1653 (issued January 29, 2018). The periods of total disability (December 24, 2016 to March 31,
2017) which were addressed in OWCP’s June 15, 2017 decision, which have already been considered by the Board
are not before the Board on the present appeal. See 20 C.F.R. § 501.2(c).
4
By a July 11, 2016 decision, OWCP denied appellant’s claim for a recurrence of disability commencing
February 11, 2016 in OWCP File No. xxxxxx326.

2

intermittent tingling in the bilateral forearms, caused by work activities. He diagnosed cervical
thoracic strain/sprain caused by an August 2013 work injury, moderate C5-6 degenerative disc
disease, C5-6 broad-based disc bulging, and persistent neck and shoulder myofascial pain.
Dr. Curlee attributed appellant’s increased symptoms to work activities. He returned her to work
with restrictions on February 22, 2016, but she was unable to finish the day due to increased neck
and arm pain caused by her work activities. Dr. Curlee kept appellant off work.
On April 20, 2016 Dr. Clark treated appellant for neck and left shoulder pain, and diffuse
numbness in the left arm and index, long, and ring fingers. Appellant reported working as a rural
mail carrier and in August 2013, while casing mail, she reached to retrieve mail from a top shelf
and felt a “pop” in her neck. Dr. Clark noted that her symptoms worsened and she sought medical
treatment including three months of physical therapy. A functional capacity evaluation (FCE)
revealed that appellant could work four hours a day. Dr. Clark noted magnetic resonance imaging
(MRI) scans performed in February 2014 and April 2016 were unremarkable. He diagnosed
chronic cervical strain, left occipital neuralgia, left subacromial bursitis, and left carpal tunnel
syndrome. Dr. Clark recommended an EMG, a left shoulder steroid injection, a left occipital nerve
block, and a left wrist splint. He noted that appellant was totally disabled.
On June 8, 2016 appellant filed an occupational disease claim (Form CA-2) alleging that
she developed neck and back pain as a result of her federal employment duties including
repetitively lifting, pushing, and pulling packages. She became aware of her condition and its
relationship to her federal employment on February 8, 2016. Appellant noted that she was unsure
if she should file a new claim or a recurrence of disability claim attributable to her earlier claim.
OWCP developed this claim as OWCP File No. xxxxxx660.
On August 11, 2016 OWCP accepted appellant’s claim for an aggravation of a sprain of
ligaments of the cervical spine in OWCP File No. xxxxxx660.5
On August 23, 2016 OWCP requested Dr. Clark advise whether appellant had residual
disability directly related to or caused by her employment injury, when she would be able to return
to gainful employment in any capacity, when she would reach maximum medical improvement,
and what restrictions she had at that time.
On August 24, 2016 appellant filed claims for compensation (Form CA-7) for leave
without pay for total disability for the periods February 8 to 19, February 23 to April 22, and May 2
to August 19, 2016. The employing establishment noted that there was no medical evidence
received which supported disability. It noted that appellant had a modified assignment under
OWCP File No. xxxxxx326.
In a certificate to return to work dated April 22, 2016, Dr. Clark advised that appellant was
unable to return to work at that time and was off work until she underwent an EMG and had a
follow-up visit.

5
OWCP administratively combined OWCP File Nos. xxxxxx326 and xxxxxx660, with the former serving as the
master file.

3

In a development letter dated August 31, 2016, OWCP requested that appellant submit
additional information to support her claim for compensation for the periods beginning February 8,
2016, including medical evidence establishing that her total disability was due to the accepted
conditions.
Appellant submitted a report from Dr. Curlee dated March 31, 2016 who noted that she
had no relief after four physical therapy sessions and continued to have pain extending into her
shoulders bilaterally, interscapular region, and intermittent tingling into the forearms. Dr. Curlee
diagnosed chronic cervical, thoracic strain/sprain caused by work-related injury of August 2013,
moderate C5-6 degenerative disc disease, C5-6 broad-based disc bulging, and persistent neck, and
shoulder myofascial pain. He returned appellant to work for four hours a day on April 25, 2016
with restrictions on lifting over 20 pounds.
On June 9, 2016 appellant was treated by Dr. Bridgewater for worsening neck pain
radiating into both shoulders, arms, fingers, and upper back. Dr. Bridgewater noted findings on
examination of neck pain, neck stiffness, back pain, and bilateral shoulder pain. He diagnosed
chronic pain, degeneration of lumbar and lumbosacral disc, degeneration of cervical disc, and
chronic pain of both shoulders.
Appellant was treated by Dr. Clark on June 24, 2016 who noted an EMG was normal and
MRI scans showed no evidence of significant neurocompression. Her major complaint continued
to be cervical and thoracic axial pain. Dr. Clark diagnosed chronic cervical strain and left
subacromial bursitis. He recommended a repeat FCE.
By decision dated October 27, 2016, OWCP denied appellant’s claim for compensation for
total disability for the periods February 8 to 19, February 23 to April 22, May 2 to August 19, and
June 7 to September 2, 2016. It advised that the evidence of record failed to establish work-related
disability during the periods claimed.
On October 8, 2016 appellant was treated in the emergency room by Dr. Roderick A. Hart,
a Board-certified family practitioner, for neck pain, which she reported was chronic from a workrelated injury in February 2016. She noted that her pain became worse after physical therapy.
Dr. Hart noted findings of neck muscular tenderness and decreased range of motion secondary to
pain. He diagnosed cervicalgia, chronic pain, myalgia, and pain in the thoracic spine.
In an October 26, 2016 work capacity evaluation (Form OWCP-5c) Dr. Clark diagnosed
sprain of the ligaments of the cervical spine. He noted that appellant was able to perform her
preinjury job without restrictions. Dr. Clark indicated that she could work sedentary, light-duty,
and medium-duty work. He did not note restrictions on driving.
Appellant disagreed with OWCP’s October 27, 2016 decision and requested an oral
hearing before an OWCP hearing representative which was held on June 15, 2017.
Appellant was treated by Dr. Bridgewater on November 1, 2016 for pain and burning in
her upper back, middle back, and shoulders. Dr. Bridgewater diagnosed chronic pain,
degeneration of lumbar/lumbosacral disc, degeneration of cervical disc, and chronic pain in both
shoulders. Appellant indicated that her pain medication was controlling her pain and allowing her
to function daily, but she was unable to drive due to the sedative effects of the medication. She
4

requested a letter be written to her employing establishment stating that she was unable to drive to
work due to the side effects of her medication.
Appellant submitted a statement dated November 4, 2016 and indicated that she was
intimidated during her FCE and was in considerable pain. She requested that she be referred to
another facility for an FCE.6
In a November 21, 2016 field nurse report, it was noted that Dr. Clark earlier released
appellant to her regular job, but that she had not returned to work based on Dr. Bridgewater’s
recommendation. The nurse noted appellant’s concern about her prescribed medication and
driving. She noted a similar assessment on December 21, 2016.
On March 31, 2017 appellant filed a claim for compensation (Form CA-7), for total
disability for the period December 24, 2016 to March 31, 2017.
On June 9, 2017 OWCP referred appellant to Dr. James T. Galyon, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her
thoracic sprain, left shoulder sprain, and aggravation of cervical degenerative disc disease at C5-6.
Appellant was treated in follow up by Dr. Bridgewater on April 25, 2017 for upper back,
neck, and bilateral shoulder pain. Dr. Bridgewater noted findings on examination of neck pain,
neck stiffness, back pain, and bilateral shoulder pain. He diagnosed chronic pain, chronic pain of
both shoulders, cervical disc degeneration, and lumbar/lumbosacral disc degeneration.
In a June 30, 2017 report, Dr. Galyon discussed appellant’s work history and noted that she
had current complaints of pain in the cervical area radiating to the left periscapular area down the
left arm. He noted that she was significantly overweight, she had drop foot on the left, a decided
limp of her left leg, mild tenderness of the left subacromial space, and moderate tenderness over
the posterior cervical spine. Dr. Galyon diagnosed chronic degenerative cervical disc disease
aggravated by work activities, particularly reaching, reaching and pulling, and carrying activities
with left shoulder radiculopathy. He noted that appellant had not responded to conservative care
and her recovery was modified because of a stroke. Dr. Galyon opined that her current findings
were related to a lifting injury she sustained while casing mail on February 8, 2016. He noted that
appellant’s work-related conditions had not resolved and indicated that degenerative disease was
an irreversible process. Dr. Galyon indicated that she had nonwork-related disability from a stroke
including a drop foot and partial visual problems. He opined that appellant was not capable of
performing her duties as a rural carrier casing mail with repetitive lifting. Dr. Galyon noted that
she could work in a sedentary position with no overhead reaching, no repetitive reaching, and no
weight lifting over 10 or 15 pounds. In a work capacity evaluation (Form OWCP-5c) dated
June 30, 2017, he noted that appellant could work four hours per day with permanent restrictions.
In a supplemental report dated July 17, 2017, Dr. Galyon opined that she was restricted to weight
lifting, pushing, and pulling limited to 10 pounds, collectively for no more than one hour.

6
Appellant continued to file claims for compensation (Form CA-7), for leave without pay for total disability for
the period beginning August 22, 2016.

5

By decision dated August 22, 2017, an OWCP hearing representative affirmed the
October 27, 2016 decision.
LEGAL PRECEDENT
Section 8102(a) of FECA7 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general, the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”8 This meaning, for brevity, is expressed as disability for work.9
For each period of disability claimed, the employee has the burden of proving that he was
disabled for work as a result of the accepted employment injury.10 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable, probative, and substantial
medical evidence.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period February 8 to 19, February 23 to April 22, and May 2 to August 19, 2016 causally
related to her accepted employment injury.
In a work release note dated February 11, 2016, Dr. Bridgewater reported that appellant
was treated for increased neck pain, shoulder pain, and spasm and could not return to work. On
November 1, 2016 he diagnosed chronic pain, degeneration of lumbar/lumbosacral disc,
degeneration of cervical disc, and chronic pain in both shoulders. Appellant indicated that her pain
medication was controlling her pain and allowing her to function daily, but she was unable to drive
due to the sedative effects of the medication. Even though Dr. Bridgewater noted that she was
totally disabled from work, he did not specifically explain how her accepted conditions would
cause total disability for the claimed periods.12 Additionally, he attributed appellant’s disability,
at least partially, to a lumbar and bilateral shoulder condition. However, OWCP has not accepted
that she developed a lumbar condition or a bilateral shoulder condition as a result of her

7

5 U.S.C. § 8102(a).

8

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
9

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

See William A. Archer, 55 ECAB 674 (2004).

11

See Fereidoon Kharabi, 52 ECAB 291-92 (2001).

12
See Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value).

6

employment injury.13 Dr. Bridgewater also has not discussed how appellant’s prescribed
medication use for an accepted condition interfered with her ability to drive.14 The Board notes
that Dr. Clark did not list a restriction on driving.
Other medical reports from Dr. Bridgewater dated June 9, 2016 and April 25, 2017, do not
otherwise address how total disability for the periods of February 8 to 19, February 23 to April 22,
and May 2 to August 19, 2016 were due to the accepted conditions. As noted, for each period of
disability claimed, the employee has the burden of proof to establish that she was disabled for work
as a result of the accepted employment injury.15
Appellant submitted a work excuse form from Dr. Clark dated February 23, 2016, who
indicated that she was off work from February 23 to April 4, 2016. Dr. Clark noted that she would
be reevaluated after she completed physical therapy. On April 20, 2016 he treated appellant for
neck and left shoulder pain, and diffuse numbness in the left upper extremity. Appellant reported
working as a rural mail carrier and that she had previously sustained a work injury in August 2013
while casing mail. Her symptoms worsened and she sought medical treatment and underwent
three months of physical therapy. Dr. Clark diagnosed chronic cervical strain, left occipital
neuralgia, left subacromial bursitis, and left carpal tunnel syndrome. He concluded that appellant
was totally disabled. Similarly, in a return to work slip dated April 22, 2016, Dr. Clark indicated
that she was unable to return to work until she underwent an EMG and had a follow-up visit. While
Dr. Clark indicated that appellant was totally disabled from work he did not specifically explain
how her accepted conditions had caused or contributed to the claimed periods of disability
beginning February 8, 2016. Additionally, he appeared to at least partially attribute her disability
to occipital neuralgia, bursitis, and left carpal tunnel syndrome, which are conditions not accepted
by OWCP.16 As noted, part of appellant’s burden of proof includes submitting rationalized
medical evidence, which supports a causal relationship between the period of disability and the
accepted injury.17 Therefore, these reports are insufficient to meet her burden of proof.
Appellant submitted a June 24, 2016 report from Dr. Clark who noted that her EMG was
normal and that serial MRI scans showed no evidence of significant neurocompression. Dr. Clark
noted her major complaint continues to be cervical and thoracic axial pain. He diagnosed chronic
cervical strain and left subacromial bursitis. Even though Dr. Clark noted that appellant was still
experiencing symptoms of her diagnosed conditions, he did not specifically address whether she
13

For conditions not accepted by OWCP as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.
Alice J. Tysinger, 51 ECAB 638 (2000).
14

See B.W., Docket No. 14-0372 (issued November 12, 2014) (the physician did not address the medical condition
for which narcotic medication was prescribed and did not state any opinion that residuals of the accepted conditions
disabled appellant). There also is no indication in the record that other appropriate modes of transportation were not
available for commuting to work.
15

See supra note 10.

16

Supra note 13.

17
See Jimmie H. Duckett, supra note 12; Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing
rationale on causal relationship are entitled to little probative value).

7

had employment-related disability for the periods of February 8 to 19, February 23 to April 22,
and May 2 to August 19, 2016. Other reports from Dr. Clark failed to address disability during
the claimed period.
Appellant submitted reports from Dr. Curlee dated March 8 and April 4, 2016, who noted
her treatment for neck pain extending to her shoulders bilaterally, which was caused by her work
activities. He diagnosed chronic cervical thoracic strain/sprain caused by work-related injury in
August 2013, moderate C5-6 degenerative disc disease, C5-6 broad-based disc bulging, and
persistent neck and shoulder myofascial pain. Dr. Curlee opined that appellant’s increased
symptoms were directly related to her work activities and placed her off work status pending
completing her physical therapy. While he indicated that she was totally disabled from work he
did not specifically explain how any accepted condition caused or contributed to the period of
disability beginning February 8, 2016.
Similarly, on March 31, 2016, Dr. Curlee noted that appellant had no relief after four
sessions of physical therapy and continued to have pain extending into her shoulders bilaterally,
interscapular region and intermittent tingling into the forearms. He diagnosed chronic cervical,
thoracic strain/sprain caused by work-related injury of August 2013, moderate C5-6 degenerative
disc disease, C5-6 broad-based disc bulging and persistent neck and shoulder myofascial pain.
Dr. Curlee returned appellant to work on April 25, 2016 with permanent restrictions of work four
hours a day and no lifting over 20 pounds. This report is insufficient to meet her burden of proof
as he failed to provide a specific opinion on causal relationship between the claimed period of
disability and the accepted employment conditions.18
Appellant submitted a duty status report (Form CA-17) prepared by Dr. Curlee on
December 3, 2014; however, this report is insufficient to establish disability as it significantly
predates and does not address the claimed period of disability.
In a work release note dated January 20, 2016, Dr. McCoy treated appellant for ongoing
neck pain. Similarly, in an emergency room report dated October 8, 2016, Dr. Hart treated
appellant for neck pain which she reported was chronic from a work-related injury from
February 2016. She noted her pain became worse after physical therapy. He diagnosed
cervicalgia, chronic pain, myalgia, and pain in the thoracic spine. Even though Dr. Hart and
Dr. McCoy noted that appellant was still experiencing symptoms of her diagnosed conditions, the
physicians did not specifically address whether appellant had developed employment-related
disability for the claimed periods February 8 to 19, February 23 to April 22, and May 2 to
August 19, 2016.
Other medical reports of record, including the second opinion reports from Dr. Galyon
dated June 30 and July 17, 2017, do not otherwise address how total disability beginning
February 8, 2016 was due to the accepted employment injury or the conditions related thereto. As

18

See Alice J. Tysinger, supra note 13.

8

noted, for each period of disability claimed, the employee has the burden of proof to establish that
she was disabled for work as a result of the accepted employment injury.19
On appeal, appellant asserts that she submitted sufficient medical evidence supporting
disability for the periods claimed. The Board finds that she failed to submit rationalized medical
evidence establishing causal relationship between the specific periods of claimed disability and
the conditions accepted due to her August 30, 2013 employment injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the periods February 8 to 19, February 23 to April 22, and May 2 to August 19, 2016 causally
related to the accepted employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
19

See supra note 10.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT, Mayaguez, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1971
Issued: July 26, 2010

Case Submitted on the Record

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

JURISDICTION
On July 28, 2009 appellant timely appealed the July 7, 2009 merit decision of the Office
of Workers’ Compensation Programs, which affirmed the termination of her wage-loss
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2 and 501.3(e), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective May 10, 2008.
FACTUAL HISTORY
Appellant, a 48-year-old loan specialist, was involved in an employment-related motor
vehicle accident (MVA) on May 15, 2006. She was stopped in traffic when another motorist
rear-ended her vehicle. The Office accepted her claim for lumbar sprain and cervical strain and
placed her on the periodic compensation rolls effective August 6, 2006.

Appellant came under the care of Dr. Manuel A. Martinez, a Board-certified physiatrist,
who previously treated her for a July 31, 2003 employment-related back injury (xxxxxx444). On
May 25, 2006 Dr. Martinez diagnosed cervical and lumbar strain and advised her to remain off
work for approximately one month. In a report dated July 24, 2006, he extended appellant’s offduty status until August 7, 2006. Dr. Martinez also recommended that she see a psychiatrist as
she had a prior history of major depression.1 Dr. Martinez noted that recently she had been very
sad and anxious about her condition and was having frequent crying spells. Appellant’s
prognosis for full rehabilitation was poor and her physical condition had been complicated by her
emotional status. In an August 24, 2006 update, Dr. Martinez advised that appellant was
undergoing physical therapy. On September 17, 2006 he reported ongoing low back pain and
complaints of knee pain, which on x-ray revealed degenerative joint disease of the knee.
Dr. Martinez diagnosed lumbar strain and sciatica and recommended that appellant remain off
work. He reiterated that she had a poor prognosis for full rehabilitation. Dr. Martinez also noted
that her condition should be considered permanent and unlikely to change.2
Dr. Fernando Rojas, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on November 3, 2006. In a November 6, 2006 report, Dr. Rojas noted that
appellant was rear-ended by another vehicle on May 15, 2006, sustaining injuries to her neck
(whiplash) and lower back. He also noted a history of two previous employment-related motor
vehicle accidents in 1990 and 2003 where she sustained cervical/lumbar sprains. Appellant
complained of frequent pain and Dr. Rojas noted a considerable loss of motion in the lower back.
There was also radiographic evidence of lumbar disc desiccation and disc bulging at L3-4 and
L4-5, as well as objective evidence of peripheral neuropathy.3 Dr. Rojas diagnosed low back
sprain. He indicated that the current diagnosis was work related and that appellant could not
return to her date-of-injury position. With respect to the need for further treatment, Dr. Rojas
stated that physical therapy was the only feasible treatment thus far, coupled with oral
medications and lumbar supports. He listed appellant’s chronic mental depression and early
moderate demyelinitative peripheral neuropathy as other conditions that may prevent her from
returning to full-time work. Dr. Rojas completed a work-capacity evaluation (Form OWCP-5c),
precluding all work due to persistent recurrent pain.
The Office found a conflict in medical opinion between Dr. Rojas and Dr. Martinez and
referred appellant for an impartial medical evaluation. In its June 14, 2007 correspondence to
appellant, it indicated that there was a conflict on the issues of “causal relationship” and
“continuing disability due to the accepted work injury.” The Office selected Dr. Fausto Boria as
the impartial medical examiner. On August 6, 2007 Dr. Boria examined appellant and reviewed
her medical records, but did not request or administer any additional objective studies. He also
reviewed appellant’s history of injury, occupational history and prior medical history.
1

She has an accepted claim for major depressive disorder, single episode, which occurred on or about
February 26, 2003 (xxxxxx497).
2

Dr. Martinez routinely submitted return to work certificates, which extended appellant’s off-duty status at fourto five-week intervals.
3

This latter diagnosis was based on a November 13, 2003 lower extremity electromyography and nerve
conduction velocity (EMG/NCV) test. Dr. Rojas indicated that the peripheral neuropathy was not related to
appellant’s work injury.

2

Dr. Boria’s diagnoses included cervical sprain, lumbar sprain and lumbar spine degenerative disc
disease. He advised that the cervical and lumbar sprains were work related, but the lumbar
degenerative disc disease was not. Dr. Boria stated that appellant’s overall prognosis was good
and that she had achieved maximum medical improvement. He indicated that there were no
objective findings of the accepted conditions. Dr. Boria explained that there was no spasm and
appellant’s cervical and lumbar spontaneous movements were functional. He concluded that her
accepted injuries had resolved and further medical treatment was unnecessary. Dr. Boria found
that appellant was able to perform the full duties of her job.
On March 28, 2008 the Office issued a notice of proposed termination of compensation
and medical benefits based on Dr. Boria’s August 6, 2007 impartial medical evaluation. It
afforded appellant 30 days to submit additional evidence or argument to the extent she disagreed
with the proposed termination of benefits.
The Office subsequently received an April 16, 2008 report from Dr. Martinez. Since his
last medical report of September 17, 2006, he had treated appellant for low back pain on
September 12, November 16, 2007 and March 17, 2008, each time prescribing medication.
Dr. Martinez most recently examined appellant on April 14, 2008, at which time she complained
of low back and left knee pain. He found marked tenderness and severe paravertebral muscle
spasms over the lumbar area. Dr. Martinez also stated that appellant’s lumbar spine was very
stiff. He diagnosed lumbar strain and sciatica and started appellant on physical therapy.
Dr. Martinez explained that appellant had a poor prognosis for full rehabilitation and faced longterm disability. He reiterated that her condition should be considered permanent and unlikely to
change. Dr. Martinez also reported that appellant had been receiving psychiatric treatment for
major depression since being referred in July 2006. He submitted a work capacity evaluation
(Form OWCP-5c), which prohibited all work due to recurrent low back pain.
In an April 9, 2007 report, Dr. Dwight M. Santiago Perez, an internist, noted that he
evaluated appellant on December 7, 2006 and found her totally and permanently disabled due to
a combination of psychiatric and orthopedic conditions. Dr. Santiago diagnosed chronic posttraumatic cervical-dorsal and lumbosacral myofascial pain syndrome, which he attributed to
appellant’s history of repeated motor vehicle accidents, including the May 15, 2006 employment
injury. He also diagnosed bilateral lower extremity moderate demyelinating neuropathy, left
knee degenerative joint disease and severe recurrent major depression with psychotic features.
In a May 5, 2008 decision, the Office terminated appellant’s compensation and medical
benefits effective May 10, 2008. It found that the recently submitted reports from Dr. Santiago
and Dr. Martinez did not outweigh the impartial medical examiner’s opinion.
In a letter dated May 27, 2008, the Office advised appellant that there was a conflict
between Dr. Martinez and Dr. Boria on the issue of whether there was any continuing disability
due to the accepted work injury. It referred appellant to Dr. Javier Cerra, a Board-certified
physiatrist. In a report dated June 12, 2008, Dr. Cerra noted the history of multiple motor
vehicle accidents. While acknowledging that appellant had been diagnosed with cervical and
lumbar sprain, Dr. Cerra did not provide a current diagnosis because her case had not been
thoroughly worked up following her latest accident. He noted that appellant had no new
magnetic resonance imaging (MRI) scans or EMG/NCV tests following her May 15, 2006

3

injury.4 Dr. Cerra advised that appellant continued to suffer residuals of her initial injury,
“mainly to the low back.” He noted that her complaints and physical findings did not correlate
well. Dr. Cerra stated that no patient with lumbar and cervical sprain without any other
significant findings should be permanently and totally disabled from performing any type of
work. He recommended a repeat MRI scan and EMG/NCV test. Dr. Cerra also noted that
appellant needed intense psychological and psychiatric treatment. He essentially deferred
judgment until additional testing was provided. Dr. Cerra subsequently received the results of a
June 12, 2008 EMG/NCV administered by Dr. Martinez, which revealed left L5 radiculopathy.
In a June 18, 2008 addendum, he indicated that the recent test results could explain some of the
findings on the involved left leg, but not on the other leg. Dr. Cerra commented that appellant’s
symptoms were not significantly different on both sides, which did not correlate medically. He
adhered to his original recommendation of additional testing, including a repeat MRI scan.
On April 14, 2009 appellant’s counsel filed a request for reconsideration. The request
was accompanied by a March 29, 2009 report from Dr. Martinez who noted that appellant had
been receiving treatment since May 25, 2006 and was recently seen on March 12, 2009 for an
exacerbation of her neck and lower back pain. Dr. Martinez reported severe tenderness and
muscle spasms over appellant’s cervical, dorsal and lumbar area. He also noted marked stiffness
over her cervical and lumbar spine. Recent MRI scans of the cervical and lumbar spine revealed
herniated discs from C3 to C7 and L3 to L5. Dr. Martinez also stated that a June 12, 2008
EMG/NCV test revealed left L5 radiculopathy. He further indicated that he referred appellant to
an anesthesiologist to consider an epidural block. Dr. Martinez diagnosed: (1) status post
cervical and lumbar sprain; (2) cervical, dorsal and lumbar chronic myositis; (3) C3-4, C4-5, C56 and C6-7 herniated discs; (4) L3-4 and L4-5 herniated discs; and (5) left L5 radiculopathy. As
to the cause of appellant’s current condition, Dr. Martinez explained that the shearing forces
produced during a whiplash injury may result in a disc herniation with or without radiculopathy.
Therefore, he found that appellant’s current conditions were sequelae of her traumatic injury,
which was initially accepted for neck and back sprain. Dr. Martinez also explained that a
whiplash injury could result in a residual condition known as chronic myofascial pain syndrome.
By decision dated July 7, 2009, the Office denied modification of the May 5, 2008
decision terminating appellant’s benefits. It found Dr. Martinez’s latest report unpersuasive in
part because he had not provided “reports of the MRI [scan] or EMG/NCV testing....” The
Office found that the newly submitted evidence was insufficient to overcome the weight
accorded Dr. Boria’s opinion. It further noted that due to a “scheduling error,” appellant had
been referred for an additional medical examination with Dr. Cerra after her benefits had been
terminated.5 The Office stated that Dr. Cerra’s June 12, 2008 examination was not considered to
be another referee examination, and therefore, it did not supersede the weight of the medical
evidence as represented by Dr. Boria, the impartial medical examiner (IME).

4

The most recent lumbar MRI scan of which Dr. Cerra was aware is dated December 13, 2005. The latest
EMG/NCV test was dated November 13, 2003.
5

The Office did not otherwise address the substance of Dr. Cerra’s June 12, 2008 report.

4

LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has either ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.9
ANALYSIS
The Board finds that conflict in medical opinion did not arise between Dr. Rojas and
Dr. Martinez regarding either causal relationship or continuing employment-related disability.10
In its latest decision, the Office noted that “it was Dr. Rojas’ opinion that [appellant’s] injuryrelated condition had resolved....” To the contrary, Dr. Rojas responded “No” when asked the
question “Has the injury-related condition resolved?” The Office misinterpreted Dr. Rojas’
November 6, 2006 opinion. Absent a conflict in medical opinion, there was no reason to refer
the case to an impartial medical examiner in June 2007. Thus, Dr. Boria’s designation as an
impartial medical examiner was inappropriate. His August 6, 2007 findings should be
considered those of an Office second opinion examiner rather than an impartial medical referee.
Dr. Boria’s opinion did not resolve a conflict in medical opinion. Rather, it created one.11
The Office recognized this fact, but only after it had already terminated appellant’s compensation
and medical benefits. On May 27, 2008 it advised appellant that there was a conflict between
Dr. Martinez and Dr. Boria on the issue of whether there was any continuing disability due to the
accepted work injury. The Board concurs with the Office’s assessment in this regard.
Dr. Boria’s August 6, 2007 second opinion report clearly conflicts with Dr. Martinez’s April 16,
2008 report, which the Office received prior to terminating appellant’s benefits on May 10, 2008.
According to Dr. Martinez, appellant continued to have residual disability from the accepted
6

Curtis Hall, 45 ECAB 316 (1994).

7

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

8

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

9

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

10

The Federal Employees’ Compensation Act provides that, if there is disagreement between the physician
making the examination for the Office and the employee’s physician, the Office shall appoint a third physician who
shall make an examination. 5 U.S.C. § 8123(a) (2006); Shirley L. Steib, 46 ECAB 309, 317 (1994). Where the
Office 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. Gary R. Sieber, 46 ECAB 215, 225 (1994).
11

For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and rationale.”
Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

5

lumbar strain and sciatica when he examined her on April 14, 2008. Because there was an
unresolved conflict in medical opinion, the Office failed to meet its burden of proof to terminate
appellant’s benefits as of May 10, 2008 based on the report of Dr. Boria.
CONCLUSION
The Office improperly terminated appellant’s benefits effective May 10, 2008.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2009 decision of the Office of Workers’
Compensation Program is reversed.
Issued: July 26, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6