United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY, AIR
SYSTEMS COMMAND, Patuxent River, MD,
Employer
__________________________________________

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

Docket No. 13-128
Issued: June 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 22, 2012 appellant filed a timely appeal from a May 11, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and the June 6 and July 23, 2012
nonmerit decisions. 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 the appeal.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a spinal subluxation due to his February 12, 2000 work injury; and (2) whether OWCP

1
2

5 U.S.C. §§ 8101-8193.

On November 8, 2012 appellant also sought to appeal a July 19, 2011 merit decision of OWCP but this attempt
to appeal was not filed within the requisite 180 days of that decision and therefore that OWCP decision is not
currently within the Board’s jurisdiction. See 20 C.F.R. §§ 501.2(c), 501.3.

properly denied appellant’s requests for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
OWCP accepted that on February 12, 2000 appellant, then a 46-year-old systems
accountant, sustained an aggravation of cervical stenosis with myelopathy when he fell, striking
his back and the back of his head. He was attending a mandatory wellness activity while on
temporary duty. Appellant stopped work on March 6, 2000 and was placed on the periodic
disability rolls.
Appellant was seen in the emergency room on February 15, 2000 by Dr. Donovan
Kendrick, a Board-certified neurosurgeon, who noted that appellant sustained a “significant
stinger” involving his cervical spine and indicated that magnetic resonance imaging (MRI) scan
testing showed profound spondylosis at multiple cervical spine levels with perhaps some
evidence of signal abnormality.
Appellant underwent x-ray testing of his cervical spine on February 12, 2000. The
findings showed that his vertebral bodies were in normal alignment and that there was moderate
degenerative disc disease and spondylosis at C5-6 and C6-7. No fracture or subluxation was
observed, the prevertebral soft tissues were normal and the neural foramina were patent. The
impression portion of the findings indicated, “Degenerative change at C5-6 and C6-7. No acute
fracture seen.”
The findings of a February 12, 2000 MRI scan of appellant’s cervical spine, showed
degenerative disc disease and spondylosis throughout most of the cervical spine, from C3-4
through C6-7. There was disc space loss at all levels with associated endplate spurring both
anteriorly and posteriorly. An associated broad-based posterior disc bulge was observed at C3-4,
but there were no other disc bulges or protrusions. The impression portion of the findings stated:
“There is underlying degenerative disc disease and spondylosis which creates
spinal canal stenosis from C3-4 through C6-7 along with moderate to severe
bilateral neural foraminal stenosis at these same levels. Small focal regions of
signal abnormality within the adjacent spinal cord at these levels suggest some
underlying myomalacia or spinal cord edema. No focal disc herniation
identified.”
In a March 6, 2000 report, Dr. Thomas B. Ducker, an attending Board-certified
neurosurgeon, noted that MRI scan testing of appellant’s cervical spine showed early
degenerative changes between C3-4 and C6-7 with one level which was worse and “associated
with diffuse congenital stenosis.” On March 6, 2000 Dr. Michael Saloman, an attending Boardcertified neurosurgeon, stated that the MRI scan testing obtained on February 12, 2000 did not
show evidence of cervical disc herniation.
On March 29, 2000 Dr. Ducker performed cervical laminar decompression surgery at C3
through C7, cervical microplate reconstruction laminoplasty and local autograft for
laminoplasty. The surgery was authorized by OWCP. Dr. Ducker listed preoperative diagnoses

2

of traumatic and congenital cervical spinous stenosis, cord compression and myelopathy.
Cervical x-rays obtained by Dr. Ducker on March 31, 2000 showed wide laminotomy and
supporting posterior metallic bands from C3 through C7. Dr. Ducker noted that overall
alignment was appropriate at that time.
Appellant received treatment for his cervical problems from Dr. Daniel W. Alexander, an
attending chiropractor. In numerous notes dated beginning in April 2000, Dr. Alexander
detailed the findings of treatment sessions, including range of motion finding for the cervical
spine.
In a June 19, 2000 report, Dr. David D. Weisher, an attending Board-certified
neurologist, indicated that appellant reported an electrical sensation which radiated down the
lateral and anterior aspects of his chest. He indicated that appellant’s history and examination
were consistent with post-traumatic Brown-Sequard Syndrome manifested by a right cervical
cord lesion. On November 20, 2000 Dr. Weisher released appellant to work four to six hours
per day with no pulling, pushing lifting more than 10 pounds and no forward flexion of her
neck.
In January 2001, OWCP accepted that appellant sustained Brown-Sequard Syndrome and
myelomalacia of his cervical spine due to his February 12, 2000 work injury.
The findings of March 23, 2001 x-rays of appellant’s cervical spine showed that he was
status post laminectomy from C3 through C7. There was no subluxation identified. On April 3,
2001 Dr. Ducker reviewed the findings of a recent computerized tomography (CT) scan of
appellant’s cervical spine and indicated that there was no new pathology present.
In a September 20, 2001 report, Dr. Alexander indicated that appellant had been seen in
his office for severe neck pain with radiculopathy and expressed his concern that appellant would
undergo further injury if he had to use his head in a flexion-type motion. The record contains
numerous reports of Dr. Alexander’s chiropractic sessions with appellant.
Appellant subsequently claimed that he sustained a spinal subluxation due to his
February 12, 2000 work injury. He submitted several reports by attending chiropractors, but
they did not provide an opinion that he sustained a spinal subluxation due to the February 12,
2000 injury as demonstrated by x-rays to exist. OWCP denied appellant’s claim in merit
decisions dated August 5 and December 6, 2011.
In an undated report received on February 28, 2012, Dr. Alexander noted that he had seen
appellant in conjunction with Dr. Ducker. He stated:
“In April 2000 [appellant] was noted to have subluxations at C2, T2-T3, increased
neuromusculoskeletal disorders and a loss in cervical spinal range of motion due
to past surgical effects. The findings were noted from [appellant’s] symptoms,
palpation and x-ray findings, which were reviewed with Dr. Ducker on
April 25, 2000. To the best of my knowledge during that call we talked about the
x-rays, surgery and no need for a neck brace.”

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In a May 11, 2012 decision, OWCP denied appellant’s claim for a work-related spinal
subluxation, noting that the submitted evidence did not clearly establish that a subluxation had
been demonstrated by x-rays to exist. Dr. Alexander’s report was deemed to be vague with
respect to the x-rays he reviewed.
In a May 21, 2012 letter, appellant requested reconsideration. He argued that the Board’s
decision in Christopher Smith, Docket No. 95-2631 (issued February 18, 1998), was consistent
with the facts in his case and asserted that he sustained a compensable spinal subluxation.
In a June 6, 2012 decision, OWCP denied appellant’s request for merit review of his
claim, noting that his argument did not have a reasonable color of validity.
On June 11, 2012 appellant requested reconsideration. He submitted a June 11, 2012
report from Dr. Thomas Sievert, an attending chiropractor, who provided the diagnoses of
cervical disc degeneration, cervicobrachial syndrome and spasms. Dr. Sievert noted that
appellant was totally disabled from work.
In a July 23, 2012 decision, OWCP denied appellant’s request for further merit review of
his claim, finding that the evidence was not relevant.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of 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, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence.4
Under section 8101(2) of FECA, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.5 OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.6

3

J.F., Docket No. 09-1061 (issued November 17, 2009).

4

See E.J., Docket No. 09-1481 (issued February 19, 2010).

5

5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988).

6

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121, 126 (1990).

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not submitted sufficient evidence to establish that he
sustained a spinal subluxation as a result of his February 12, 2000 work injury. Appellant
submitted reports from attending chiropractors, including those of Dr. Alexander. The Board
notes that the reports of the chiropractors constitute medical evidence if they diagnosed a
subluxation due to the February 12, 2000 injury as demonstrated by x-rays to exist.
In a February 23, 2012 report, Dr. Alexander stated that appellant had spinal
subluxations, but he did not clearly identify the x-rays relied upon. It should be noted that
cervical spine x-ray testing from February 12, 2000 did not appear to show a spinal subluxation.
The findings showed that appellant’s vertebral bodies were in normal alignment and that there
was moderate degenerative disc disease and spondylosis at C5-6 and C6-7. No fracture or
subluxation was observed, the parevertebral soft tissues were normal and the neural foramina
were patent. The impression portion of the findings indicated, “Degenerative change at C5-6 and
C6-7. No acute fracture seen.” Moreover, Dr. Alexander made his diagnosis some 12 years after
the injury accepted in this case.7
For these reasons, appellant has not submitted sufficient evidence to establish that he
sustained a spinal subluxation as a result of his February 12, 2000 work injury. He 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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.9 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.10 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.11 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record12 and the
submission of evidence or argument which does not address the particular issue involved does not
7

See Linda L. Mendenhall, 41 ECAB 532 (1990).

8

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

12

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

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constitute a basis for reopening a case.13 While a reopening of a case may be predicated solely on
a legal premise not previously considered such reopening is not required where the legal
contention does not have a reasonable color of validity.14
ANALYSIS -- ISSUE 2
OWCP issued its last merit decision on May 11, 2012.
Appellant requested
reconsideration of this decision in May and June 2012. In decisions dated June 6 and July 23,
2012, OWCP denied his requests for merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2) which would require OWCP to reopen the case for review of the merits of the
claim. In his applications for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. He did not identify a specific point of law or show
that it was erroneously applied or interpreted. Appellant did not advance a new and relevant
legal argument.
In connection with his May 2012 reconsideration request, appellant argued that the
Board’s decision in Christopher Smith, Docket No. 95-2631 (issued February 18, 1998), was
consistent with the facts in his claim. In that case, however, the chiropractor forwarded x-rays he
obtained within two weeks of the accepted injury. As noted, Dr. Alexander did not clearly
identify the x-rays on which he relied. Appellant did not provide adequate support for this
argument and it does not have a reasonable color of validity.
A claimant may be entitled to a merit review by submitting new and relevant evidence,
but appellant did not submit such medical evidence in this case. In connection with his
June 2012 reconsideration request, appellant submitted a June 11, 2012 report in which
Dr. Sievert, an attending chiropractor, provided the diagnoses of cervical disc degeneration,
cervicobrachial syndrome and spasms. Although this report is new, it is not relevant to the main
issue of whether appellant established that he sustained a spinal subluxation on
February 12, 2000. Dr. Sievert did not provide an opinion on this matter. Therefore, the report
is not relevant medical evidence.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). He did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant met his burden of proof to establish that he sustained a
spinal subluxation due to his February 12, 2000 work injury. The Board further finds that
13

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

14

John F. Critz, 44 ECAB 788, 794 (1993).

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OWCP properly denied his requests for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 23, June 6 and May 11, 2012 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 13, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Florence, AZ, Employer
__________________________________________

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

Docket No. 21-1413
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On September 20, 2021 appellant filed a timely appeal from an April 20, 2021 merit
decision and a May 7, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and
1
The Board notes that, following the May 7, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 8, 2019 appellant, then a 28-year-old deportation officer, filed a traumatic injury
claim (Form CA-1) alleging that she developed cysts on both wrists on July 5, 2019 during
physical training while in the performance of duty.3 OWCP accepted the claim for bilateral carpal
tunnel syndrome and left wrist ganglion and resulting surgery. It authorized wage-loss
compensation on the supplemental rolls beginning on June 9, 2020. Appellant returned to fulltime light-duty work on July 12, 2020 and full-duty work on September 13, 2020.
On November 25, 2019 appellant underwent electromyogram and nerve conduction
velocity (EMG/NCV) studies of the upper extremities, which exhibited no electrodiagnostic
evidence of neuropathy or radiculopathy.
On December 2, 2019 appellant underwent a magnetic resonance imaging (MRI) scan of
her left wrist, which demonstrated small synovial cyst and capsular defect of the radiocarpal
articulation without vascular involvement, and a tiny partial tear or degeneration of the triangular
fibrocartilage complex.
On June 9, 2020 appellant underwent OWCP-authorized bilateral carpal tunnel surgical
releases and left snuffbox ganglion excision.
On July 29, 2020 appellant underwent an MRI scan of her right wrist due to a right wrist
lump following her carpal tunnel release surgery. This scan demonstrated joint effusion.
In a report dated October 9, 2020, appellant’s attending physician, Dr. Joseph L. Haber, a
Board-certified hand and plastic surgeon, found that she had reached maximum medical
improvement (MMI) with excellent sensation of the digits, a negative Tinel’s sign over the median
nerves, and intact sensation. He reported that appellant had zero percent disability.
On March 9, 2021 appellant filed a claim for (Form CA-7) for a schedule award. By letter
dated March 15, 2021, she noted that she received a response to her Form CA-7, that she would
need to be seen by a doctor for an impairment rating and requested approval to see a different
doctor.
In a March 15, 2021 development letter, OWCP requested that appellant provide an
impairment rating using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded her 30 days to submit
additional medical evidence in support of her schedule award claim.

3

In her April 11, 2020 response to an OWCP development questionnaire, appellant clarified that her claim was for
an occupational disease developing from June through July 2019.
4

A.M.A., Guides (6 th ed., 2009).

2

In a March 22, 2021 report, Dr. Haber found that appellant had no permanent impairment.
In a letter of even date, appellant requested an evaluation by another physician.
By decision dated April 20, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
On April 25, 2021 appellant requested reconsideration of the April 20, 2021 decision. She
asserted that Dr. Haber failed to consider the fluid in her right wrist, her pain, and her inability to
perform common tasks such as pushups as well as gripping and carrying heavy objects.
By decision dated May 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 5 and its implementing regulations 6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth
edition of the A.M.A., Guides is used to calculate schedule awards. 7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in A.M.A.,
Guides, Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying
relevant text.8 In Table 15-23, grade modifier levels (ranging from zero to four) are described for
the categories of test findings, history, and physical findings. The grade modifier levels are
averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down based on functional scale, an
assessment of impact on daily living activities (QuickDASH).9
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 10 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5.a. (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 449.

9

Id. at 448-49.

10

J.P., Docket No. 21-0801 (issued December 22, 2021); N.S., Docket No. 21-0508 (issued September 22, 2021);
Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

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which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.11 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a discussion of how the
impairment rating was calculated. 12 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award. 13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedu le award.
OWCP, on March 15, 2021, requested that appellant submit a permanent impairment
evaluation from her physician addressing the extent of any employment-related permanent
impairment using the A.M.A., Guides. Appellant did not, however, submit any medical evidence
establishing permanent impairment.
In his October 9, 2020 report, Dr. Haber found that appellant had reached MMI with
excellent sensation of the digits, a negative Tinel’s sign over the median nerves, and intact
sensation. He did not report any permanent impairment.
As noted above, appellant must submit an evaluation from a physician that includes a
description of impairment in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its resulting restrictions and limitations. 14
As she has not submitted any medical evidence supporting permanent impairment of a scheduled
member or function of the body due to her accepted conditions, the Board finds that she has not
met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

11

Supra note 7 at Chapter 2.808.5 (March 2017).

12

Id. at Chapter 2.808.6a. (March 2017).

13

Id. at Chapter 2.808.6c. (March 2017).

14

See D.J., Docket No. 20-0017 (issued August 31, 2021); B.V., Docket No. 17-0656 (issued March 13, 2018);
C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket No. 13-1592 (issued January 7, 2014).

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP previously denied her claim because the medical evidence of record was
insufficient to establish permanent impairment of scheduled member or function of the body,
warranting a schedule award. Thus, the Board must determine if appellant presented sufficient
evidence or argument regarding her schedule award claim to warrant a merit review pursuant to
5 U.S.C. § 8128(a).20
In her April 25, 2021 reconsideration request, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law and did no t advance a new and relevant
15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit 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). Chapter 2.1602.4b.
18

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

19

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

20

See S.M., Docket No. 21-0392 (issued August 12, 2012); H.T., Docket No. 20-1318 (issued April 27, 2021).

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legal argument not previously considered by OWCP. Accordingly, the Board finds that appellant
is not entitled to a review of the merits based on the first and second above -noted requirements
under 20 C.F.R. § 10.606(b)(3).21
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. With her reconsideration request, appellant submitted a
statement noting her disagreement with Dr. Haber’s October 9, 2020 report finding no evidence of
permanent impairment. The underlying issue of the present case is whether appellant has
submitted sufficient medical evidence to establish impairment of scheduled member o r function
of the body. The Board has held that the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case. 22 Thus, she
is not entitled to a review of the merits of her claim based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 23
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

21

Supra note 15.

22

A.M., Docket No. 20-1417 (issued July 30, 2021); E.J., Docket No. 19-1509 (issued January 9, 2020); M.K.,
Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
23

Supra note 15; see T.H., Docket No. 18-1809 (issued May 23, 2019); Johnny L. Wilson, Docket No. 98-2536
(issued February 13, 2001).
24

See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the April 20 and May 7, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 12-497
Issued: July 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 6, 2010 appellant, through her attorney, filed a timely appeal of the
December 1, 2011 merit decision of the Office of Workers’ Compensation Programs. 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 sustained a recurrence of total disability commencing
May 27, 2010 causally related to her accepted employment injuries.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 14, 2010 appellant, then a 40-year-old mail handler
sustained cervical, thoracic and lumbosacral sprains, strains and contusions and disc herniation at
T6-T7 as a result of being hit by a bulk mail container (BMC) that was pushed by an employee.
He was smashed between a jack and the BMC. Appellant stopped work on January 16, 2010.
Effective January 20, 2010, appellant returned to full-time work as a modified mail
handler.
On June 4 and 21, 2010 appellant filed claims for wage-loss compensation (Form CA-7)
for the period May 27 through June 18, 2010. On the CA-7 forms, the employing establishment
indicated that appellant was on leave without pay (LWOP) during the claimed period. Time
analysis forms (Form CA-7a) indicated that she did not work and was on LWOP from May 27
through June 4, 2010 based on a physician’s note.
In a May 18, 2010 prescription, Dr. Michael R. Magoline, an attending Board-certified
orthopedic surgeon, ordered physical therapy to treat appellant’s right elbow lateral
epicondylitis. In a June 15, 2010 work slip, Dr. Magoline advised that she was being treated for
a back condition and was unable to work. He estimated that appellant could return to work on
July 21, 2010.
By letters dated June 14 and 29, 2010, OWCP advised appellant that the medical
evidence submitted was insufficient to establish her claims. It addressed the medical evidence
she need to submit.
On July 5 and 17 and August 2, 2010 appellant filed CA-7 and CA7a forms claiming
compensation for LWOP due to disability for work from June 19 through July 30, 2010.
In progress notes dated May 25, June 15 and July 13, 2010, Dr. Magoline noted
appellant’s complaints of ongoing pain, tension and muscle spasm in her low back. He obtained
a history of her medical, social and family background. Dr. Magoline listed findings on physical
examination and diagnosed cervical and lumbar strains and thoracic disc herniation. He placed
appellant off work and addressed her treatment plan. In prescriptions dated May 25 and July 15,
2010, Dr. Magoline ordered physical therapy to treat appellant’s cervical and lumbar strains and
thoracic disc herniation. In a June 23, 2010 work capacity evaluation (Form OWCP-5c), he
advised that she was unable to perform her regular work duties due to continuing pain.
Appellant could return to full-time work on December 31, 2010 with physical restrictions for an
indefinite period. In a July 13, 2010 work slip, Dr. Magoline stated that she was unable to work.
He estimated that appellant could return to work on August 22, 2010. In a July 27, 2010 report,
Dr. Magoline stated that appellant was unable to return to work due to her ongoing low back
problems. He advised that she was actively involved in therapy and her pain was such that it
would be unreasonable to expect her to return to work at that time.
In a prescription dated January 26, 2010, Dr. David H. Goff, a family practitioner,
ordered physical therapy to treat appellant’s cervical, thoracic and lumbosacral sprains, strains
and contusions.

2

Reports from Kara Morris, a physical therapist, addressed the treatment of appellant’s
thoracic spine and neck conditions from January 27 through June 14, 2010.
In an August 27, 2010 decision, OWCP found the medical evidence insufficient to
establish that appellant was totally disabled commencing May 27, 2010 due to her accepted
January 14, 2010 employment injuries.
On August 27 and 30 and September 13, 2010 appellant filed CA-7 and CA7a forms
claiming compensation for LWOP due to disability for work from July 31 through
September 10, 2010.
Reports from Ms. Morris addressed appellant’s treatment for her cervical and lumbar
conditions on intermittent dates from August 23 through September 20, 2010.
In an August 24, 2010 progress note, Dr. Magoline noted that appellant still experienced
discomfort along the mid back. He listed findings on physical examination and diagnosed
thoracic strain. Also, on August 24, 2010 Dr. Magoline advised, in a work slip, that appellant
was unable to work. He estimated that she could return to work on October 8, 2010. On
August 27, 2010 Dr. Magoline prescribed physical therapy to treat appellant’s thoracic disc
herniation. In a September 17, 2010 report, he advised that she was off work due to a thoracic
strain. Dr. Magoline noted that appellant was undergoing physical therapy and she took narcotic
pain medicine to control her discomfort. He kept her off work to rehabilitate her back.
A report dated January 15, 2010 from Mercy Medical Center contained the typed name of
Leonard Dyko, a physician’s assistant, and obtained a history of appellant’s January 14, 2010
employment injuries, listed findings on physical examination and diagnosed a contusion in
multiple sites. She was placed off work until she followed up with work, safety and health.
By letter dated September 24, 2010, appellant, through counsel, requested a telephone
hearing regarding OWCP’s August 27, 2010 decision.
On intermittent dates from September 27, 2010 through April 11, 2011 appellant filed
CA-7 and CA-7a forms claiming compensation for LWOP due to disability for work from
September 11, 2010 through April 8, 2011.
In progress notes dated March 16, 2010 through April 5, 2011, Dr. Magoline noted
appellant’s complaints of pain in her right elbow and back. He listed findings on physical
examination and advised that she had possible loose bodies and lateral epicondylitis of the right
elbow. Appellant also had tenderness and mild paraspinal muscle spasm in the lower thoracic
spine and pain with full extension and flexion. She had difficulty with standing for a prolonged
period of time secondary to pain and thoracic disc herniation. In a November 16, 2010 progress
note, Dr. Magoline advised that appellant’s significant pain most likely kept her disabled for
work. In work slips dated October 5 and November 16, 2010 and February 15, 2011, he advised
that she was totally disabled for work. Dr. Magoline estimated that appellant could return to
work on April 6, 2011. In prescriptions dated October 6, 2010 and January 4, 2011, he ordered
physical therapy to treat her accepted thoracic and cervical conditions.

3

In a November 10, 2010 report, Dr. Harlan R. Ullman, a Board-certified radiologist,
advised that a magnetic resonance imaging (MRI) scan of appellant’s thoracic spine showed
degenerative disc disease at T6-T7 with midline disc protrusion indenting the ventral aspect of
the spinal cord. The protrusion and flattening of the spinal cord were more evident than on a
prior examination.
In a November 1, 2010 report, Ms. Morris addressed the treatment of appellant’s thoracic
spine condition.
Appellant submitted discharge instructions dated January 22, 2010 for a muscle strain.
In a March 18, 2010 report, Dr. Richard S. Brower, a Board-certified orthopedic surgeon,
obtained a history of the January 14, 2010 employment injuries and appellant’s medical
treatment. Dr. Brower noted her complaint of pain about the bra line. He listed findings on
physical examination and reviewed thoracic MRI scan test results. Dr. Brower advised that
appellant had multiple signs of nonorganic disease with pain on superficial touch and thoracic
pain with internal/external rotation of the hips that was quite over demonstrative. Neurologically
she was fine. Dr. Brower did not think that surgical indications were necessary.
In a March 21, 2011 report, Dr. Georges Z. Markarian, a Board-certified neurosurgeon,
obtained a history of the January 14, 2010 employment injuries and appellant’s medical
treatment. He noted her complaint of pain in the bra strap area and lower scapular pain isolated
to the spine. Dr. Markarian listed findings on physical examination and reviewed a thoracic MRI
scan which showed a T6-T7 herniation into the thecal sac. There were no abnormal signals into
the spinal cord or signs of myelopathy. Dr. Markarian stated that given the location of the
herniation and appellant’s morbid obesity, he was not inclined to offer surgical intervention at
that time.
In an April 15, 2011 decision, an OWCP hearing representative affirmed the August 27,
2010 decision. The medical evidence submitted by appellant was to be insufficient to establish
that she sustained a recurrence of disability commencing May 27, 2010 causally related to her
accepted January 14, 2010 employment injuries.
On intermittent dates from April 25 through August 30, 2011 appellant filed CA-7 and
CA-7a forms claiming compensation for LWOP due to disability for work from April 9 through
August 26, 2011.
In work slips dated April 5, June 7 and August 9, 2011, Dr. Magoline advised that
appellant was totally disabled for work. He estimated that she could return to work on
November 9, 2011. In progress notes dated June 7 and 8 and August 9, 2011, Dr. Magoline
stated that appellant complained about significant pain in her mid-thoracic spine and mid back.
He listed findings on physical examination and diagnosed symptomatic thoracic disc herniation
at T6-T7 and depressive disorder. In an August 9, 2011 report, Dr. Magoline advised that
appellant was unable to perform any type of meaningful work due to the amount of narcotics she
was taking and pain she experienced and her inability to find a comfortable standing or sitting
position.

4

In reports dated June 2, 2010 through February 14, 2011, Ms. Morris addressed the
treatment of appellant’s lumbar and cervical conditions.
In a progress note dated June 16, 2011, Dr. James P. Bressi, an anesthesiologist, obtained
a history of the January 14, 2010 employment injuries and appellant’s medical treatment. He
noted her complaints of pain when bending, walking, lifting, twisting, carrying, sitting and due to
weather changes. Dr. Bressi listed findings on physical examination diagnosed cervical and
lumbosacral strains and sprains and thoracic strain and disc displacement. He advised that
appellant remained temporarily totally disabled. In an August 1, 2011 report, Dr. Bressi stated,
in support of his opinion that appellant was disabled, that her herniated thoracic disc at T6-T7
was caused by the accepted January 14, 2010 employment injury because she had no complaints
of severe thoracic pain prior to the accepted injury. He stated that the thoracic spine was pivotal
to a patient being able to sit comfortably and use his or her arms for work since the lever for the
shoulders was the thoracic spine where most of the forces of performing arm function tasks
occurred. Dr. Bressi related that sitting placed the most pounds per square inch on the spine. He
summarized that arm movement and comfortable sitting were dependent on a healthy thoracic
spine. Dr. Bressi related that appellant returned to a light-duty job that she could no longer
perform, but prior to her accepted injuries she worked without restrictions. He stated that she
had not slept more than two to three hours at a time since her accepted injuries culminating into
daytime fatigue that only worsened her pain and energy to perform her job. Appellant failed
rehabilitation and physical therapy which provided no real significant help for her pain. Thus,
Dr. Bressi opined that her injury was debilitating and continued to render her totally disabled.
He noted that the employment injury was over one and one-half years old. No strain/sprain
should be causing this type of pain because it should have resolved in four to six weeks or less
than six months. Dr. Bressi noted that appellant had exquisite tenderness at the sight of the blunt
trauma even one and one-half years after the employment injury. He concluded that her pain
even precluded her from part-time sedentary work.
The results of a laboratory test performed on June 20, 2011 showed the presence of
ethanol in appellant’s system.
By letter dated September 6, 2011, appellant, through her attorney, requested
reconsideration of OWCP’s April 15, 2011 decision.
On intermittent dates from September 12 through November 21, 2011 appellant filed
CA-7 and CA-7a forms claiming compensation for LWOP due to disability for work from
September 9 through November 18, 2011.
In a November 1, 2011 progress note, Dr. Magoline listed essentially normal findings on
physical examination of appellant’s back with the exception of tenderness over the thoracic
lumbar junction.
In a December 1, 2011 decision, OWCP denied modification of the April 15, 2011
decision. It found that the medical evidence of record was insufficient to establish appellant’s
recurrence of disability claim.

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LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2 This term also means an inability to work that takes place when a lightduty 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-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.3
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. 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 limited-duty job requirements.4
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.5
ANALYSIS
OWCP accepted that on January 14, 2010 appellant sustained cervical, thoracic and
lumbosacral sprains, strains and contusions and disc herniation at T6-T7 while in the
performance of duty. Following these injuries, appellant returned to modified-duty work. She
claimed a recurrence of disability commencing May 27, 2010. Appellant must demonstrate
either that her conditions have changed such that she could not perform the activities required by
her modified job or that the requirements of the limited light-duty job changed. The Board finds
that the record contains no evidence that the limited light-duty job requirements were changed or
withdrawn or that appellant’s employment-related conditions have changed such that they
precluded her from performing limited light-duty work.
Dr. Magoline’s work slips, progress notes, Form OWCP-5c and report found that
appellant was totally disabled for work on intermittent dates from May 25, 2010 through
2

20 C.F.R. § 10.5(x).

3

Id.

4

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
5

James H. Botts, 50 ECAB 265 (1999).

6

November 9, 2011 due to her pain and thoracic strain and disc herniation. Although
Dr. Magoline found that appellant was totally disabled, he did not explain how this total
disability was causally related to the accepted injuries. Dr. Magoline’s prescriptions ordered
physical therapy to treat appellant’s right elbow lateral epicondylitis and accepted cervical and
lumbar strains and thoracic disc herniation. Medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.6 Dr. Magoline did not provide an opinion addressing whether appellant
sustained a recurrence of total disability commencing May 27, 2010 causally related to the
January 14, 2010 employment injuries. Further, the Board notes that OWCP has not accepted
appellant’s claim for right elbow lateral epicondylitis and Dr. Magoline’s opinion is
insufficiently rationalized to establish that any other condition is employment related.7 For the
stated reasons, the Board finds that this evidence is insufficient to establish appellant’s
recurrence claim.
Dr. Bressi’s June 1, 2011 progress note found that appellant was temporarily totally
disabled and diagnosed cervical and lumbosacral strains and sprains, and thoracic strain and disc
displacement. In an August 1, 2011 report, he stated that her total disability was due to the
employment-related thoracic herniated disc at T6-T7. Dr. Bressi related that appellant did not
have any complaints of severe thoracic pain prior to the January 14, 2010 employment injury.
He stated that a healthy thoracic spine was important for arm movement and comfortable sitting.
Dr. Bressi stated that appellant’s lack of sleep resulted in daytime fatigue which worsened her
pain and energy for work. He stated that her unsuccessful physical therapy treatment did not
significantly help her pain. Dr. Bressi related that a thoracic sprain/strain should not have caused
appellant’s ongoing pain and exquisite tenderness at the sight of the blunt trauma as it should
have resolved within four to six weeks or less than six months. He concluded that she was no
longer able to perform her light-duty job or part-time sedentary work although she worked
without restrictions prior to the accepted injuries. The Board finds that Dr. Bressi failed to
provide sufficient rationale in support of his opinion on causal relationship between the accepted
employment-related thoracic injury and the alleged disability.8 Although he noted that appellant
was asymptomatic prior to the January 14, 2010 employment injuries, the lack of symptoms prior
to an employment injury does not in itself provide rationale in support of a causal relationship.9
Moreover, Dr. Bressi stated that a healthy spine was pivotal to arm movement and comfortable
sitting, but he did not describe the specific employment factors related to appellant’s modified
mail handler position to which he attributed her disability. Further, he did not adequately explain
why the accepted thoracic sprain and strain had not resolved, noting tenderness at the location of
the trauma, given his statement that such conditions should have resolved within four to six

6

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).
7

See G.A., Docket No. 09-2153 (issued June 10, 2010) (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).
8

See cases cited, supra note 6.

9

See Walter J. Neumann, Sr., 32 ECAB 69 (1980).

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weeks or less than six months. The Board finds that Dr. Bressi’s reports are insufficient to
establish appellant’s claim.
Dr. Goff’s prescription ordered physical therapy to treat appellant’s cervical, thoracic and
lumbosacral sprains, strains and contusions. Dr. Ullman’s diagnostic test results revealed
degenerative disc disease and herniation of the thoracic spine at T6-T7. Dr. Brower’s report
found that appellant had multiple signs of nonorganic disease with pain with superficial touch
and thoracic pain with internal/external rotation of the hips and that she was quite over
demonstrative. He stated that surgical indications were not necessary. None of these physicians
provided an opinion addressing whether appellant sustained a recurrence of total disability
commencing May 27, 2010 due to the accepted employment injuries.10
Similarly, the laboratory test which revealed ethanol in appellant’s system is insufficient
to establish her claim for a recurrence of total disability. This evidence does not contain any
opinion addressing her disability for work during the claimed period due to the accepted
injuries.11
The reports from Ms. Morris, appellant’s physical therapist, and Mr. Dyko, a physician’s
assistant, do not have any probative medical value. Neither a physical therapist nor a physician’s
assistant is a “physician” as defined under FECA.12 The Board finds, therefore, that these reports
are insufficient to establish appellant’s claim.
Appellant has not met her burden of proof in establishing that there was a change in the
nature and extent of the injury-related conditions or a change in the nature and extent of the
limited light-duty requirements which would prohibit her from performing the limited light-duty
position she assumed after she returned to work.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law. For the reasons stated above, the Board finds that appellant did not submit sufficient
medical evidence in support of her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

10

See cases cited, supra note 6.

11

Id.

12

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

8

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of total disability commencing May 27, 2010 causally related to her
accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
GENERAL SERVICES ADMINISTRATION,
DELAWARE VALLEY FIELD OFFICE,
Camden, NJ, Employer
__________________________________________

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

Docket No. 19-0727
Issued: September 10, 2019

Case Submitted on the Record

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

JURISDICTION
On February 19, 2019 appellant filed a timely appeal from a January 4, 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 has met her burden of proof to establish left lower extremity
and lumbar spine conditions causally related to the accepted May 19, 2017 employment incident.
FACTUAL HISTORY
On June 2, 2017 appellant, then a 56-year-old property manager, filed a traumatic injury
claim (Form CA-1) alleging that, on May 19, 2017, she sustained pain, bruising, and numbness as
1

5 U.S.C. § 8101 et seq.

a result of falling with her laptop while in the performance of duty. She stopped work on that date
and returned on May 23, 2017.
In a report dated June 7, 2017, Dr. Anthony Dibona, a Board-certified family practitioner,
examined appellant for complaints of a fall at work with pain in the left hip, leg, and foot.
Appellant stated that she fell at work on May 19, 2017 while getting ready to go home. She did
not recall tripping. The next day, appellant felt numbness in her left foot and found herself limping.
On examination of the left lower extremity, Dr. Dibona noted left calf pain with dorsiflexion and
palpation, left hip pain with movement and palpation, straight leg raises limited to 30 degrees with
the left leg, and left-sided lumbar pain. He diagnosed lumbar radiculopathy and referred appellant
for magnetic resonance imaging (MRI) scans of the lumbar spine and left knee.
Appellant submitted a June 8, 2017 attending physician’s report (Form CA-20), as well as
a duty status report (Form CA-17) and a work excuse note of the same date, which were signed by
a nurse practitioner.
A magnetic resonance imaging (MRI) scan of the left knee dated June 27, 2017
demonstrated a questionable meniscocapsular junction tear of the body of the medial meniscus and
patellofemoral degenerative joint disease. A lumbar spine MRI scan of the same date
demonstrated mildly bulging discs at L2-3, L4-5, and L5-S1, as well as mild narrowing of the
central spinal canal at L4-5 with degenerative changes at the articular facets.
In a report dated July 3, 2017, Dr. Alan L. Urkowitz, a Board-certified family practitioner,
followed up with appellant regarding her MRI scans. He noted that the MRI scan of the left knee
demonstrated a possible meniscus tear and that the MRI scan of the lumbar spine demonstrated
significant degenerative disc disease. On examination of the extremities, Dr. Urkowitz noted that
the lumbar spine was tender to palpation, while the left knee was tender posteriorly and laterally
with pain upon flexion. He diagnosed lumbar radiculopathy and internal derangement of the left
knee.
In an attached attending physician’s report (Form CA-20) dated July 7, 2017, Dr. Urkowitz
noted that appellant found herself on the floor on May 19, 2017, but that she did not recall falling
or tripping. On examination, he observed left-sided lumbar pain, left hip pain with movement, left
calf pain with dorsiflexion and palpation, and left knee pain. Dr. Urkowitz diagnosed lumbar
radiculopathy and internal derangement of the left knee. He checked a box marked “Yes”
indicating that he believed that the diagnosed conditions were caused or aggravated by the
employment incident of May 19, 2017, explaining that the conditions were from a fall at work.
Dr. Urkowitz advised that she not return to work until she had seen an orthopedist.
In a work excuse note dated July 14, 2017, Dr. Urkowitz requested that appellant be
excused from work from July 14 through 24, 2018. In an attached attending physician’s report
(Form CA-20) of the same date, Dr. Urkowitz on physical examination observed pain in
appellant’s left knee and upper left calf. He noted that MRI scans demonstrated a possible
meniscus tear and degenerative joint disease of the spine. Dr. Urkowitz diagnosed lumbar
radiculopathy and internal derangement of the left knee. He checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by the employment incident of

2

May 19, 2017, noting that she was injured at work. Dr. Urkowitz advised that appellant could not
return to work until an appointment with an orthopedist on July 19, 2017.
In a report dated July 20, 2017, Dr. Steven Kahn, a Board-certified orthopedic surgeon,
examined appellant for complaints of lower back pain with radiation in her lower extremities and
left lateral knee pain with some radiation into the left leg. He noted that appellant sustained a slip
and fall on May 19, 2017 while performing duties of her employment, sustaining conditions of the
left knee and lumbar spine. On examination of the left knee, Dr. Kahn observed motion from 0 to
120 degrees of flexion and ligamentous stability to varus valgus stresses in full extension as well
as 30 degrees of flexion. On examination of the lumbar spine, he observed tenderness to palpation
over the paravertebral region with muscle spasm more pronounced on the left. Active range of
motion was limited and straight leg raising on the left was positive for lumbar pain with a radicular
component down the ipsilateral extremity. Dr. Kahn reviewed the MRI scans of June 27, 2017
and diagnosed post-traumatic thoracolumbar strain with associated myofasciitis; lumbar
spondylosis with degenerative disc disease preexistent to and exacerbated by the incident of
May 19, 2017; a healed post-traumatic contusion of the left knee; and clinical lumbar
radiculopathy of the left lower extremity. He recommended that appellant return to work on
July 25, 2017, with restrictions of avoiding prolonged sitting and standing, as well as breaks every
20 to 25 minutes when she was required to travel in a car.
Appellant submitted physical therapy notes dated from August 2 through 31, 2017.
In a development letter dated August 31, 2017, OWCP informed appellant that she had not
submitted sufficient factual or medical evidence to establish her claim. It advised her of the type
of factual and medical evidence needed and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to respond.
In a letter dated September 15, 2017, Dr. Kahn noted that appellant returned for evaluation
of her left knee and thoracolumbar spine. He indicated that, upon review of his previous medical
report, he failed to include lumbar disc pathology in the form of disc bulges at L2-3, L3-4, and
L4-5. Dr. Kahn noted that appellant continued to have ongoing lower back pain with some
radiation and radicular features in her left buttocks and lower extremity. Appellant’s anterior left
knee pain had resolved, but some posterior left knee discomfort remained. On examination of the
left knee, he noted some palpatory tenderness in the semimembranosus, semitendinosus region
posteriorly. On examination of the thoracolumbar spine, Dr. Kahn observed palpatory tenderness
over the paravertebral region with mild spasm, more pronounced on her left. Motion was improved
80 to 85 percent of normal with flexion and extension. A straight leg test on the left was positive
for lumbar pain with a radicular component down the ipsilateral extremity. Dr. Kahn diagnosed
post-traumatic thoracolumbar strain with associated myofasciitis; lumbar spondylosis with
degenerative disc disease preexistent to and exacerbated by the incident of May 19, 2017; disc
bulge at L2-3, L4-5, and L5-S1; clinical lumbar radiculopathy of the left lower extremity; and a
healed post-traumatic contusion of the left knee. He recommended continuation of physical
therapy and an electromyogram/nerve conduction (EMG/NCV) study of her lower extremities.
In a letter dated September 25, 2017, Dr. Urkowitz opined that appellant’s back and knee
conditions were caused by her fall at work on May 19, 2017. He noted that, although appellant
had underlying degenerative disc disease of the spine, he felt that her fall aggravated the pain.

3

On September 27, 2017 appellant responded to OWCP’s inquiries. She stated that her
condition was not related to any other injury except the fall that occurred at work on May 19, 2017.
By decision dated October 11, 2017, OWCP denied appellant’s claim finding that she had
not submitted sufficient medical evidence to meet her burden of proof to establish that her lumbar
and left knee conditions were causally related to the accepted May 19, 2017 employment incident.
On April 9, 2018 appellant requested reconsideration. With her request, she submitted a
July 14, 2017 report from Dr. Urkowitz which was previously of record.
By decision dated July 6, 2018, OWCP denied modification of its October 11, 2017
decision.
On August 13, 2018 appellant requested reconsideration. With her request, she submitted
a letter from Dr. Urkowitz dated August 1, 2018 in which he reviewed her history of treatment as
in his letter of September 25, 2017. Dr. Urkowitz opined that her back and knee conditions were
caused by her fall at work on May 19, 2017. He explained that although she had underlying
degenerative disc disease in her spine, he felt her fall had aggravated the pain. Dr. Urkowitz further
felt that her left knee condition was caused by her fall at work, as she had no prior history of left
knee injuries.
By decision dated January 4, 2019, OWCP denied modification of its July 6, 2018 decision.
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
time limitation of FECA, 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.3 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.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first

2

Id.

3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4
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).

4

component is whether the employee actually experienced the employment incident that allegedly
occurred.5 The second component is whether the employment incident caused a personal injury.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).7
In a case where 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.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish left lower
extremity and lumbar spine conditions causally related to the accepted May 19, 2017 employment
incident.
On July 20 and September 15, 2017 Dr. Kahn examined appellant’s lumbar spine and
diagnosed lumbar spondylosis with degenerative disc disease preexistent to and exacerbated by
the incident of May 19, 2017. Although he provided diagnoses and imposed work restrictions, he
did not provide an opinion on causal relationship. The Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value
on the issue of causal relationship.9 These reports, therefore, are insufficient to establish
appellant’s claim.
In a letter dated September 25, 2017, Dr. Urkowitz noted that appellant presented to his
office on June 7, 2017, stating that she fell at work on May 19, 2017. Appellant complained of
left hip, leg, and foot pain. In a follow-up visit on July 3, 2017, Dr. Urkowitz reviewed her MRI
scans, which demonstrated degenerative disc disease of her lumbar spine and a possible meniscal
capsular tear of the medial meniscus. In a visit on July 14, 2017, appellant continued to have
significant knee pain. Dr. Urkowitz opined that appellant’s back and knee conditions were caused
by her fall at work on May 19, 2017. He noted that, although she had underlying degenerative
disc disease of the spine, he felt that her fall aggravated the pain. In a letter dated August 1, 2018,
5

M.H., Docket No. 18-1737 (issued March 13, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

6

Id.; John J. Carlone, 41 ECAB 354 (1989).

7

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

8

J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
9

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

5

Dr. Urkowitz reviewed appellant’s history of treatment and opined that her back and knee
conditions were caused by her fall at work on May 19, 2017. He again explained that, although
she had underlying degenerative disc disease in her spine, he felt her fall aggravated the pain.
Dr. Urkowitz further felt that appellant’s left knee condition was caused by her fall at work, as she
had no prior history of left knee injuries. These reports of Dr. Urkowitz are conclusory in nature,
however, as they fail to explain in detail how the accepted May 19, 2017 employment incident
caused appellant’s lumbar and left knee conditions.10 The Board has held that the mere recitation
of a claimant’s history does not suffice for purposes of establishing causal relationship between a
diagnosed condition and the employment incident.11 Without explaining physiologically how the
accepted employment incident caused or contributed to the diagnosed conditions, the physician’s
report is of limited probative value.12 Therefore, these reports of Dr. Urkowitz are insufficient to
meet appellant’s burden of proof.
In attending physician’s reports (Form CA-20) dated July 7 and 14, 2017, Dr. Urkowitz
checked a box marked “Yes” indicating that he believed appellant’s conditions were caused or
aggravated by the incident of May 19, 2017. The Board has held that a report that addresses causal
relationship with a checkmark, without medical rationale explaining how the employment incident
caused or aggravated the diagnosed condition, is of diminished probative value and insufficient to
establish causal relationship.13 As such, Dr. Urkowitz’s reports of July 7 and 14, 2017 are
insufficient to establish appellant’s burden of proof.14
In narrative reports dated July 3 and 14, 2017, Dr. Urkowitz examined appellant and
diagnosed lumbar radiculopathy and internal derangement of the left knee, as well as
recommending treatment. Similarly, on June 7, 2017, Dr. Dibona examined appellant and
diagnosed lumbar radiculopathy, referring appellant for MRI scans. However, these reports from
Drs. Urkowitz and Dibona did not provide opinions on causal relationship. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.15 These reports, therefore,
are insufficient to establish appellant’s claim.
Appellant submitted MRI scans of her lumbar spine and left knee dated June 27, 2017. The
Board has held that diagnostic studies lack probative value as they do not address whether the

10

See N.S., Docket No. 19-0167 (issued June 21, 201).

11

Id. See also J.G., Docket No. 17-1382 (issued October 18, 2017).

12

J.P., Docket No. 18-1165 (issued January 15, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

13

See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).
14

M.C., Docket No. 18-0361 (issued August 15, 2018).

15

Supra note 9.

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employment incident caused any of the diagnosed conditions.16 Therefore, these reports are
insufficient to establish her claim.
Finally, appellant submitted reports signed by nurse practitioners and physical therapists.
These reports do not constitute competent medical evidence because nurse practitioners and
physical therapists are not considered “physicians” as defined under FECA.17
Entitlement to FECA benefits may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of a causal relationship.18 The Board finds that the record lacks
rationalized medical evidence establishing causal relationship between the May 19, 2017
employment incident and the diagnosed left lower extremity and lumbar spine conditions.19
As appellant has not submitted sufficiently rationalized medical evidence to establish her
claim that she sustained left lower extremity or lumbar spine conditions causally related to the
accepted May 19, 2017 employment incident, she has not met her burden of proof.20
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 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 left lower
extremity and lumbar spine conditions causally related to the accepted May 19, 2017 employment
incident.

16

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

17

G.S., Docket No. 18-1696 (issued March 26, 2019); see M.M., Docket No. 17-1641 (issued February 15, 2018);
K.J., Docket No. 16-1805 (issued February 23, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law).
18

See A.S., Docket No. 17-2010 (issued October 12, 2018); Louis R. Blair, Jr., 54 ECAB 348 (2003).

19

See J.S., Docket No. 17-0507 (issued August 11, 2017).

20

K.L., Docket No. 18-1029 (issued January 9, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the January 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, SIOUX CITY MAIN
POST OFFICE, Sioux City, IA, Employer
__________________________________________

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

Docket No. 07-1923
Issued: August 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 13, 2007 appellant filed a timely appeal from an April 13, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her reconsideration request.
There is no merit decision within one year of the filing of this appeal. Therefore, pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim. The
Board has jurisdiction to review the April 13, 2007 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
On appeal appellant asserted that the Office erred by denying her March 21, 2007 request for a
30-day extension to submit new medical evidence regarding the Office’s March 28, 2006
schedule award decision. She also contended that the Office erred by failing to consider new
medical evidence that she “forwarded” to the Office on April 12, 2007.
FACTUAL HISTORY
The Office accepted that, on or before November 21, 2000, appellant, then a 50-year-old
clerk, sustained bilateral carpal tunnel syndrome with a left median nerve release on October 9,

2001 and a right median nerve release on October 23, 2001. It also accepted left cubital tunnel
syndrome with ulnar nerve release on December 14, 2001. The Office later accepted bilateral
medial epicondylitis, left shoulder and upper arm strain and a left rotator cuff tear. Following
intermittent absences related to the accepted conditions and surgeries, appellant returned to lightduty work on January 14, 2002. She continued under medical treatment. Appellant received
wage-loss compensation for work absences.1
On March 11, 2005 appellant claimed a schedule award.
On December 3, 2005 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Anil K. Agarwal, a Board-certified orthopedic surgeon, for a schedule
award evaluation. In a January 5, 2006 report, Dr. Agarwal provided clinical findings indicating
a 12 percent impairment of the right upper extremity and a 16 percent impairment of the left
upper extremity.2 In a January 11, 2006 report, an Office medical adviser calculated that, based
on Dr. Agarwal’s findings, appellant had a 12 percent permanent impairment of the left arm and
15 percent permanent impairment of the right arm.
By decision dated March 28, 2006, the Office awarded appellant a schedule award for a
12 percent permanent impairment of the right upper extremity and a 15 percent permanent
impairment of the left upper extremity. The period of the award ran from March 19, 2006 to
October 29, 2007.3
In a letter dated March 20, 2007 and postmarked March 21, 2007, appellant requested
reconsideration.
She contended that Dr. Agarwal provided grip and pinch strength
measurements but did not perform those tests. Also, one of appellant’s physicians found it
questionable that Dr. Agarwal found “measurements were exactly the same for both arms, both
wrists and both hands” and that the impairment ratings were so low. Appellant asserted that
Dr. Agarwal’s opinion was flawed as he incorrectly stated that the Office denied one of her
upper extremity claims. She explained that her attending physician recommended a second
impairment rating. Appellant therefore made an appointment with a clinic in Oklahoma City but

1

From March 2003 through 2004, the Office conducted additional medical development regarding appellant’s
work capacity and the nature of the accepted conditions. This development is not relevant to the present appeal. By
decision dated November 21, 2003, the Office reduced appellant’s compensation based on her actual earnings. This
decision is not before the Board on the present appeal.
2

Dr. Agarwal opined that appellant had reached maximum medical improvement. He stated that appellant had a
10 percent impairment of each arm due to status post median nerve release. Dr. Agarwal added a two percent
additional impairment on the right due to a 20 degree loss of elbow extension and a three percent additional
impairment on the left due to a 30 degree loss of elbow extension. He also provided a three percent impairment to
the left upper extremity due to the ulnar nerve transfer. Dr. Agarwal utilized the upper extremity grading scheme
worksheets on page 427 of the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment.
3

By decision dated May 31, 2006, the Office reduced appellant’s monetary compensation benefits to zero as she
had been successfully reemployed as a modified clerk for more than 60 days at a rate of pay equal to or higher than
her date-of-injury position. This decision is not before the Board on the present appeal.

2

would not be seen until April 4, 2007. She requested a 30-day extension in which to submit
additional evidence.4
By decision dated April 13, 2007, the Office denied appellant’s request for
reconsideration on the grounds that her March 20, 2007 letter, the only evidence submitted, did
not contain relevant evidence sufficient to warrant a merit review of the prior decision.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,5 section 10.606(b)(2) of Title 20 of the Code of Federal
Regulations provides that a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.6 Section 10.608(b) provides that when an application for review of the
merits of a claim does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.7
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.8 Appellant need only
submit relevant, pertinent evidence not previously considered by the Office.9 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Office granted appellant a schedule award on March 28, 2006. Appellant requested
reconsideration by letter dated March 20, 2007 and postmarked March 21, 2007. She contended
that the schedule award evaluation of Dr. Agarwal, a Board-certified orthopedic surgeon and
second opinion physician, contained fabricated test results and factual errors.
The critical issue at the time of the last merit decision was the percentage of permanent
impairment related to the accepted conditions. To be relevant, the evidence submitted in support
4

Appellant’s letter mentioned particular pages of Dr. Agarwal’s report by page number. She enclosed a copy of
Dr. Agarwal’s report for reference purposes.
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.608(b). See also T.E.., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

8

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

9

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

10

Annette Louise, 54 ECAB 783 (2003).

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of the March 21, 2007 request for reconsideration must address that issue. The only evidence
appellant submitted in support of her reconsideration request was her March 20, 2007 letter.
This letter did not contain relevant medical evidence regarding the percentage of permanent
impairment related to her occupational conditions. Therefore, her letter is not relevant and
pertinent and is not sufficient to require the Office to reopen her claim for consideration of the
merits.11
On appeal, appellant contended that she “forwarded” additional medical evidence to the
Office on April 12, 2007. However, there is no postmark, certified mail receipt, fax receipt or
other documentation establishing that she submitted any correspondence to the Office on
April 12, 2007.
Thus, appellant has not established that the Office improperly refused to reopen her claim
for a review of the merits under section 8128(a) of the Act, because she did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by the Office or submit relevant and pertinent new evidence
not previously considered by the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 13, 2007 is affirmed.
Issued: August 13, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1247
Issued: November 29, 2021

Case Submitted on the Record

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

On August 17, 2021 appellant through counsel, filed a timely appeal from a July 7, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1247.
By letter dated November 1, 2021, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-1247 is dismissed.
Issued: November 29, 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

2