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

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-272
Issued: September 20, 2007

Case Submitted on the Record

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

JURISDICTION
On November 8, 2006 appellant filed an appeal of decisions of the Office of Workers’
Compensation Programs dated June 6 and October 2, 2006, which terminated her wage-loss
compensation on the grounds that she refused an offer of suitable work. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
on June 11, 2006 pursuant to 5 U.S.C. § 8106(a). On appeal, appellant’s attorney contends that
the offered position was not suitable because it was temporary and part time.
FACTUAL HISTORY
On July 8, 2002 appellant, then a 28-year-old city carrier, filed a Form CA-1, traumatic
injury claim, alleging that on July 6, 2001 she injured her back. The Office accepted that
appellant sustained an employment-related lumbar strain/sprain and she began working limited
duty. She stopped work on September 23, 2002 and received wage-loss compensation.
Appellant returned to four hours of sedentary duty on January 17, 2003 and continued to receive

compensation for four hours a day. She again stopped work on June 19, 2003 and was placed on
the periodic rolls.
On July 2, 2003 the Office referred appellant to Dr. Thomas J. Mampalam, a Boardcertified neurosurgeon, for a second opinion evaluation. The Office subsequently found that a
conflict in medical evidence was created between the opinions of Dr. Mampalam, and
Dr. Craig N. Pfeiffer, an attending Board-certified neurosurgeon, regarding the need for back
surgery. It referred appellant to Dr. Gordon D. Lewis, a Board-certified orthopedic surgeon, for
an impartial evaluation. In reports dated January 8 and 11, 2004, Dr. Lewis advised that
appellant could work four hours a day with restrictions and opined that she did not need surgery.
By decision dated March 25, 2004, the Office denied appellant’s request for surgery and
accepted that she sustained aggravation of preexisting lumbar disc disease and an L5-S1 leftsided disc herniation. A March 30, 2004 functional capacity evaluation demonstrated that she
could work at a medium level of physical activity for eight hours a day. In April 2004, appellant
was referred for vocational rehabilitation. On May 6, 2004 she returned to limited duty for four
hours a day.
Appellant stopped work on August 14, 2004 and was returned to temporary total
disability. On August 17, 2004 she requested reconsideration of the March 25, 2004 decision
denying her surgery request. On October 9, 2004 appellant returned to work for four hours a
day.
She missed intermittent periods thereafter and stopped work completely on
January 8, 2005.
By report dated January 19, 2005, Dr. Mark W. Hawk, a Board-certified neurosurgeon,
advised that appellant could work eight hours a day with a 20-pound lifting restriction, no
climbing, bending or stooping. Sitting was restricted to 2 hours with breaks of 30 minutes every
2 hours. In a February 16, 2005 decision, the Office denied modification of the March 25, 2004
decision denying authorization for surgery. On March 2, 2005 appellant accepted a job offer for
four hours a day. On March 24, 2005 she refused an offer for a modified position for eight hours
a day. The March 24, 2005 offer complied with the restrictions provided in Dr. Hawk’s
January 19, 2005 report, who appended a comment to the job offer, stating: “[Patient] states that
current restrictions do not allow her to function at work.” In a March 28, 2005 report, Dr. Fred
Rowe, Board-certified in emergency medicine, advised that appellant could return to full duty on
March 31, 2005.
In a March 30, 2005 letter, the Office advised appellant that the position offered was
suitable. She was notified of the penalty provisions of section 8106 of the Federal Employees’
Compensation Act1 and was given 30 days to respond. In a form report dated April 8, 2005,
Dr. Hawk advised that appellant could work 4 hours a day for 20 hours a week. On May 18,
2005 the employing establishment advised that appellant was not working and that the offered
position remained available. By letter dated June 15, 2005, the Office requested that appellant
submit an updated report from Dr. Hawk in support of her claim for disability. In a report dated
July 12, 2005, Dr. Donald Matthews, a Board-certified orthopedic surgeon, reviewed a
discogram and advised that appellant had three-level degenerative disc disease, that surgery
1

5 U.S.C. §§ 8101-8193.

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would not improve her condition and that she could not be a postal worker. He opined that she
needed vocational rehabilitation. In a form report also dated July 12, 2005, Dr. Matthews
advised that appellant could return to modified duty that day. On August 8, 2005 he advised that
appellant was permanently disabled. In an August 11, 2005 report, Dr. Hawk advised that he
agreed with Dr. Matthews’ work restrictions. Appellant continued to receive wage-loss
compensation for four hours a day.2
On December 7, 2005 the Office referred appellant to Dr. Matthew Mitchell, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In reports dated January 17, 2006,
Dr. Mitchell noted appellant’s chief complaint of low back pain, the history of injury and his
review of the statement of accepted facts and medical record. Physical examination findings
included no pain on compression of her head, rotation of her upper torso, or light touch in the
lumbar spine. Straight leg raising test was negative in both sitting and supine positions. Strength
was 5/5 and she had intact lower extremity sensation and normal deep tendon reflexes.
Dr. Mitchell diagnosed lumbar degenerative disease, left L5-S1 disc herniation and lumbar
strain. He opined that the degenerative disc disease preexisted the employment injury but that
work activities caused the disc herniation, a permanent aggravation. Dr. Mitchell advised that
appellant was not totally disabled and could return to modified work for four hours a day that
day and, after three months, could return to an eight-hour workday. He provided a four-hour
restriction to sitting, walking and standing, with squatting, kneeling, climbing, bending, stooping
and twisting limited to two hours with a 25-pound weight restriction.
On February 13, 2006 the employing establishment offered appellant a modified-duty
position for four hours a day for the period February 10 to May 10, 2006. The job was described
as “casing mail on routes to be determined daily, verify undeliverable bulk business mail, return
to sender mail; answer telephones; write up second notices on accountable mail; passports and
other duties as assigned within your limitations, which were two hours of intermittent lifting,
bending, pushing and pulling, twisting and climbing, and four hours of sitting, walking and
standing with a 25[-]pound lifting restriction.” Appellant indicated her acceptance of the
position on February 27, 2006.
On a form report dated January 28, 2006, Dr. Matthews advised that appellant was totally
disabled for the period March 1 to 28, 2006. In a report dated March 8, 2006, he advised that he
discontinued appellant’s total disability on January 17, 2006 as she was no longer on narcotic
medication, her range of motion of the lumbar spine was relatively normal and she had relatively
normal strength in her lower legs.
On March 22, 2006 the employing establishment informed the Office that the offered
position remained open. By letter that day, the Office advised appellant that a partially disabled
2

On August 4, 2005 the Office informed appellant that, due to a computer error, a duplicate compensation check
was issued for the period June 24 to July 4, 2005 and, therefore, an overpayment in compensation in the amount of
$546.26 had been created. The Office finalized the overpayment by decision dated September 14, 2005. Appellant
did not file an appeal of this decision with the Board. She also submitted Forms CA-7, claims for total disability
compensation for the period January 22 to November 10, 2005. The Office has not issued a final decision as to
whether appellant was entitled to an additional four hours of wage-loss compensation per day for this period. The
Board’s jurisdiction is limited to reviewing final decisions of the Office and extends only to those final decisions
issued within one year prior to the filing of the appeal. Charles W. Downey, 54 ECAB 421 (2003).

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employee who refused suitable work was not entitled to compensation and that the offered
position was suitable. Appellant was notified of the penalty provisions of section 8106 of the
Act and given 30 days to respond. On April 4, 2006 Dr. Matthews advised that appellant was
totally disabled for the period April 11, 2005 to April 11, 2007, stating that “she may need to file
for perm[anent] disability.” On April 5, 2006 appellant retracted her February 28, 2006
acceptance of the offered position, stating that Dr. Matthews told her she should be off work for
another year. By letter dated May 11, 2006, the Office advised appellant that her reasons for
refusing the offered position were not acceptable and she was given an additional 15 days to
accept the job offer. In a May 30, 2006 report, Dr. Matthews advised that appellant could
perhaps work 4 hours a day with sitting, walking, standing, reaching, repetitive movements,
pushing, pulling, lifting, kneeling and climbing restricted to 4 hours a day, with no reaching
above her shoulder, twisting, bending or stooping, with a 10-pound lifting restriction and
15-minute breaks every 2 hours.
By decision dated June 6, 2006, the Office terminated appellant’s wage-loss
compensation, effective June 11, 2006, on the grounds that she refused an offer of suitable work.
On June 16, 2006 appellant, through her attorney, requested a review of the written
record. Counsel contended that the offered position was not suitable because it was temporary
and part time. In a June 21, 2006 report, Dr. Hans U. Bueff, Board-certified in orthopedic
surgery, noted appellant’s complaint of low back pain with mild leg pain. Physical findings
included back tenderness and decreased, painful range of motion. Motor and sensory
examinations were within normal limits and straight leg raising test was negative. Dr. Bueff
described discogram findings of severe L5-S1 degenerative disc disease and diagnosed low back
pain due to lumbar spondylosis, most severe at L5-S1 and depression exacerbated by low back
pain. He recommended surgery.
A memorandum of a telephone conversation between the employing establishment and
the Office on July 6, 2006 noted that the job offer was based on the restrictions provided by
Dr. Mitchell on January 17, 2006 and his recommendation that appellant should begin work for
four hours daily but could return to full-time employment within three months’ time. By letter
dated July 7, 2006, the employing establishment advised the Office that the offered position was
still available and would remain so indefinitely. On July 31, 2006 the employing establishment
reoffered appellant the modified position, noting that it was available as of February 10, 2006.
On an August 3, 2006 form report, Dr. Bueff reiterated his findings and conclusions.3
In an October 2, 2006 decision, an Office hearing representative affirmed the June 6,
2006 decision.
LEGAL PRECEDENT
Section 8106(c) of the Act provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”4
3

Appellant also submitted numerous State of California and Kaiser Permanente form reports from Dr. Matthews
and other physicians that did not contain an opinion regarding her ability to work.
4

5 U.S.C. § 8106(c).

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It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.5 To justify such a termination, the Office
must show that the work offered was suitable.6 The implementing regulation provides that an
employee who refuses or neglects to work after suitable work has been offered or secured for the
employee has the burden of showing that such refusal or failure to work was reasonable or
justified and shall be provided with the opportunity to make such a showing before entitlement to
compensation is terminated.7 To justify termination, the Office must show that the work offered
was suitable and that appellant was informed of the consequences of her refusal to accept such
employment.8 In determining what constitutes “suitable work” for a particular disabled
employee, the Office considers the employee’s current physical limitations, whether the work is
available within the employee’s demonstrated commuting area, the employee’s qualifications to
perform such work and other relevant factors.9 Section 8106(c) will be narrowly construed as it
serves as a penalty provision which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment.10 The issue of whether an employee has
the physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by medical evidence.11
ANALYSIS
The Board finds that the Office properly terminated appellant’s compensation for refusal
to accept suitable work. The employing establishment offered appellant a modified position with
physical restrictions that followed those recommended by Dr. Mitchell, who had provided a
second opinion evaluation for the Office. He advised that appellant could begin work for four
hours a day and, in three months, work up to an eight-hour day. The offered position was also in
agreement with the restrictions provided by Dr. Mitchell of a four-hour restriction to sitting,
walking and standing, with squatting, kneeling, climbing, bending, stooping and twisting limited
to two hours with a 25-pound weight restriction. In a supplementary report dated March 8, 2006,
Dr. Mitchell advised that his reason for discontinuing appellant’s total disability on January 17,
2006 was supported by the fact that she was no longer on narcotic medication, her range of
motion of the lumbar spine was relatively normal and she had relatively normal strength in her
lower legs.
Neither the June 21, 2006 nor the August 3, 2006 report submitted by Dr. Bueff provided
any opinion regarding appellant’s ability to work. It is well established that medical evidence
5

Joyce M. Doll, 53 ECAB 790 (2002).

6

Id.

7

20 C.F.R. § 10.517(a).

8

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
9

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

10

Gloria G. Godfrey, 52 ECAB 486 (2001).

11

Gayle Harris, 52 ECAB 319 (2001).

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which does not offer an opinion on a given medical question is of limited probative value on that
issue.12 Similarly, the many form reports appellant submitted did not provide any opinion
regarding appellant’s capacity for work.13
In a report dated January 19, 2005, Dr. Hawk advised that appellant could work eight
hours a day with restrictions. On March 28, 2005 Dr. Rowe advised that she could return to full
duty on March 31, 2005. Dr. Matthews advised on April 4, 2006 that appellant was totally
disabled for the period April 11, 2005 to April 11, 2007. On May 30, 2006 he advised that
appellant could perhaps work 4 hours a day with sitting, walking, standing, reaching, repetitive
movements, pushing, pulling, lifting, kneeling and climbing restricted to 4 hours a day, with no
reaching above her shoulder, twisting, bending or stooping, with a 10-pound lifting restriction
and 15-minute breaks every 2 hours. Other than the difference in the lifting restriction,
Dr. Matthews’ report is essentially in agreement with that of Dr. Mitchell. Dr. Matthews,
however, provided no explanation for his conclusions and a medical opinion not fortified by
medical rationale is of little probative value.14 As stated above, Dr. Mitchell provided medical
justification for his findings and conclusions.
Appellant contended on appeal that the offered position was temporary and part time.
The Board notes that, while the initial job offer was for a three-month period, on March 22, 2006
the employing establishment advised that the position remained open and available. Because
Dr. Mitchell advised that appellant could return to full-time work three months after January 17,
2006, the original offer for employment of four hours a day was based on this assessment. The
employing establishment assured that the position remained available. The position, therefore, is
not temporary. Furthermore, even though the offered position was for four hours a day,
appellant had been working this schedule since January 17, 2003 and had received wage-loss
compensation for four hours a day. Had she accepted the offered position, she would have
continued to receive compensation for four hours a day. Neither Office regulations nor Office
procedures prohibit a part-time suitability offer.15 Office procedures merely advise that a job is
not suitable if it involves less than four hours of work per day when the claimant is capable or
working four or more hours per day.16 The Board, therefore, concludes that the weight of the
medical evidence rests with the well-rationalized opinion of Dr. Mitchell, which was based on a
proper factual background and establishes that appellant could physically perform the duties of
the offered position.17
In order to properly terminate appellant’s compensation under section 8106, the Office
must provide her notice of its finding that an offered position is suitable and give appellant an
12

See generally A.D., 58 ECAB ____ (Docket No. 06-1183, issued November 14, 2006).

13

Supra note 3.

14

Charles W. Downey, supra note 2.

15

See 20 C.F.R. § 10.507; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining
Wage-Earning Capacity, Chapter 2.814.4 (July 1997).
16

Federal (FECA) Procedure Manual, id. at Chapter 2.814.4b(1).

17

Gayle Harris, supra note 11.

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opportunity to accept or provide reasons for declining the position.18 The record established that
the Office properly followed the procedural requirements. By letter dated March 22, 2006, the
Office advised appellant that a partially disabled employee who refused suitable work was not
entitled to compensation and that the offered position had been found suitable. Appellant was
notified of the penalty provision of section 8106 and allotted 30 days to either accept or provide
reasons for refusing the position. In a letter dated May 11, 2006, the Office advised appellant
that the reasons given for not accepting the job offer were unacceptable. She was given an
additional 15 days in which to accept the position. There is no evidence of any procedural defect
in this case. The Office provided appellant with proper notice. She was offered a suitable
position by the employing establishment and such offer was refused. Thus, under section 8106
of the Act, appellant’s compensation was properly terminated effective June 11, 2006 on the
grounds that she refused an offer of suitable work.19
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
effective June 11, 2006 pursuant to 5 U.S.C. § 8106(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 2 and June 6, 2006 be affirmed.
Issued: September 20, 2007
Washington, DC

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

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

18

See Maggie L. Moore, supra note 8.

19

Joyce M. Doll, supra note 5.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, MAIN OFFICE,
Newark, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1002
Issued: September 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 2, 2007 appellant filed a timely appeal from a September 21, 2006 decision of
the Office of Workers’ Compensation Programs, adjudicating her schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 10 percent impairment of her left upper
extremity.
FACTUAL HISTORY
On January 24, 1995 appellant, then a 29-year-old (letter sorting machine) clerk, filed an
occupational disease claim alleging that beginning in January 1995 she developed pain in her
right wrist due to keying mail. The Office accepted her claim for right carpal tunnel syndrome.
On February 10, 1995 appellant underwent a right carpal tunnel release. On April 24, 1998 the

Office accepted left carpal tunnel syndrome as causally related to her federal employment.
Appellant did not undergo surgery on her left hand. She submitted a claim for a schedule award.
In a May 15, 1997 report, Dr. David Weiss, an osteopathic orthopedic specialist, provided
findings on physical examination and diagnosed bilateral carpal tunnel syndrome. He found that
appellant had a 30 percent impairment of each upper extremity due to entrapment of the median
nerve at the wrist, based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment.1 Appellant had difficulty grasping objects bilaterally, pushing and
pulling and with activities requiring fine dexterity. Her left hand pain level was rated as 4 on a
scale of 0 to 10. Regarding appellant’s left upper extremity, Dr. Weiss stated:
“Examination of [appellant’s] left hand revealed tenderness noted over the palmar
surface of the left wrist joint. Range of motion of [her] left wrist revealed palmar
flexion 75/75 degrees; dorsiflexion 75/75 degrees; radial deviation 20/20; ulnar
deviation 35/35 degrees. The Tinel’s sign is positive. The Phalen’s sign is also
positive. The Carpal Compression test is positive. It should be noted on gross
observation of the hand, there is noted to be thenar atrophy.”
***
“Grip strength testing performed via Jamar Dynamometer at level [No.] 3
revealed 8 kg [kilograms] of force strength in the right hand versus 14 kg of force
strength in the left hand. [Appellant] is right hand dominant. Normal grip
strength testing for a 31-year-old female is 30 kg in the right hand and 28 kg in
the left hand[;] these are both abnormal readings on this patient.”
***
“[Appellant] has [p]ins and needles [sensations]…. [She] awake[ns] at night with
her hands asleep. [Appellant] also continues to use wrist splints at night….”
On June 16, 1997 Dr. J. Harold Bennett, an orthopedic surgeon, agreed with Dr. Weiss
that appellant had bilateral carpal tunnel syndrome and permanent impairment.
On July 11, 1997 an Office medical adviser stated that appellant had a 20 percent
impairment of the right upper extremity for loss of grip strength based on Table 32 at page 65 of
the A.M.A., Guides, fourth edition. On July 15, 1997 the Office granted appellant a schedule
award for 62.40 weeks from May 15, 1997 to July 25, 1998 based on a 20 percent impairment of
her right upper extremity. By decision dated April 2, 1998, an Office hearing representative
affirmed the July 15, 1997 decision.
A June 14, 1999 report of a nerve conduction study (NCS) and electromyogram (EMG)
reported no evidence of bilateral median or ulnar neuropathies. On June 28, 2000 Dr. Dwayne E.
Patterson, a Board-certified physiatrist, advised that left upper extremity motor and sensory
nerve conduction studies and an EMG were normal. On July 14, 2000 Dr. G. Hadley Callaway,
1

A.M.A., Guides (4th ed. 1995). Dr. Weiss did not reference specific tables or sections of the A.M.A., Guides.

2

an attending Board-certified orthopedic surgeon, noted that EMG and NCS tests revealed no
cervical radiculopathy or any other neural brachial plexopathy or peripheral neuropathy.
On January 19, 2001 Dr. Harry L. Collins, Jr., a Board-certified orthopedic surgeon and
an Office medical adviser, stated that appellant had no left upper extremity impairment based on
the report of Dr. Callaway, who noted negative electrodiagnostic tests.
On January 23, 2001 the Office found a conflict in the medical opinion evidence between
Dr. Weiss and Dr. Collins as to whether appellant had any impairment of her left upper
extremity. The Office advised that it would refer her to an impartial medical specialist.
In an unsigned March 5, 2001 report, Dr. Stanley R. Bylciw, a Board-certified orthopedic
surgeon and an Office referral physician,2 provided findings on physical examination and stated
that appellant had a 10 percent impairment of the left upper extremity. He did not reference the
A.M.A., Guides or explain how he determined her impairment.
On October 18, 2001 the Office granted appellant a schedule award for 31.20 weeks3
from March 5 to October 9, 2001 based on a 10 percent impairment of her left upper extremity.
On October 23, 2001 appellant requested a hearing. By decision dated February 21, 2002, an
Office hearing representative noted that the Office found a conflict in the medical evidence but
did not refer appellant for an independent medical examination. She also noted that Dr. Bylciw
failed to use the applicable edition of the A.M.A., Guides and provided insufficient medical
rationale for his impairment rating. The hearing representative remanded the case for an
independent medical examination on the issue of whether there was evidence of continuing left
carpal tunnel syndrome and, if so, whether appellant had any left upper extremity impairment.
On April 18, 2002 the Office referred appellant, together with the case file, statement of
accepted facts and a list of questions, to Dr. Paul H. Wright, a Board-certified orthopedic
surgeon, for an impairment rating of her left upper extremity. The Office indicated in a
document entitled, “QUESTIONS TO BE RESOLVED”:
“Please provide a narrative report, including your response to questions below.
Please refer [to] the Statement of Accepted Facts4 and the entire file.
“1. Does [appellant] have left carpal tunnel syndrome as a result of her job
injury.… Please provide your opinion based on objective findings by results of
examination and test (including Phalen’s and Tinel’s sign and results of any nerve
condition conduction or EMG studies).
2

The list of questions provided to Dr. Bylciw indicated that he was a referral (second opinion) physician.

3

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of an upper extremity. 5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by 10 percent equals 31.20 weeks of
compensation.
4

The statement of accepted facts stated that appellant filed a claim for bilateral carpal tunnel syndrome,
underwent a right carpal tunnel release and received a schedule award for impairment to the right arm. The
statement of accepted facts did not state that left carpal tunnel syndrome was accepted. It did not indicate that
appellant received a schedule award for a 10 percent impairment of the left upper extremity.

3

“2. If [appellant] has left carpal tunnel syndrome, please complete the enclosed
[Form] CA 1303 for an impairment rating. Please utilize the [A.M.A., Guides,
fifth edition] for your rating.”
By decision dated June 4, 2002, the Office denied appellant’s claim for more than a
10 percent impairment of the left upper extremity. On June 10, 2002 appellant requested a
hearing that was held on December 19, 2005.5
By decision dated March 10, 2006, an Office hearing representative set aside the June 4,
2002 decision and remanded the case for the Office to obtain a copy of Dr. Wright’s report and
issue a de novo decision on appellant’s entitlement to a schedule award for her left upper
extremity.
In a May 7, 2002 report, obtained by the Office on March 27, 2006, Dr. Wright reviewed
appellant’s medical history and the statement of accepted facts. He provided findings on
physical examination and stated:
“Statement of Accepted Facts indicates that [appellant] … filed a notice of
occupational disease for bilateral carpal tunnel syndrome. She underwent right
carpal tunnel release surgery … and was awarded a permanent partial impairment
rating of 20 percent of her right upper extremity.
“The main question to be resolved is does [appellant] have left carpal tunnel
syndrome as a result of her job with the [employing establishment].
“[Appellant] relates that she still has quite a bit of pain in her left upper extremity.
She indicates that the pain is in the shoulder region, the elbow region, the forearm
region, as well as the wrist and hand. [Appellant] relates that the pain is
aggravated by activity….”
***
“[Appellant] relates that her No. 1 problem now is pain in the left upper
extremity. She relates that it starts in the collarbone and extends down into the
shoulder, down the posterior aspect of the forearm and into the long and ring
fingers. She also points to the volar radial aspect of the wrist as being the location
of pain….
“[Appellant] relates that her second problem is numbness in the left upper
extremity. She indicates that it seems to start in the elbow and then causes the
entire thumb to go numb. She also developed numbness in the outer aspect of the

5

The record shows that appellant’s June 10, 2002 hearing request was misplaced by the Office until
April 8, 2005.

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small finger. This seems to come and go and she is not aware of specific
activities or positions that either help or cause the problem.”
***
“[Appellant’s] left hand and wrist area shows no specific swelling or effusion to
the synovial joints. There is no evidence of synovitis of the IP [interphalangeal]
joints, MCPs [metacarpophalangeal] or wrist joint. There is some mild puffiness
in the volar radial aspect of the wrist overlying the radial artery. This is proximal
to the actual wrist joint and is mildly tender. There is also some mild but palpable
triggering of the thumb flexor tendon.
She is tender over the CMC
[carpometacarpal] joint of the left thumb, which is mildly prominent…. She has
full range of motion of the fingers and no triggering or crepitus other than the
thumb. Allen’s testing shows good flow through both arteries at the wrist.
Phalen’s testing does not cause discomfort. Reverse Phalen’s testing causes pain
in the volar aspect of the wrist but no numbness. Two point discrimination is
totally inconsistent at all fingertips at 6 mm [millimeters] and also 10 mm. Light
touch sensation is present in all fingertips. The wrist shows 70 degrees
dorsiflexion, 80 degrees palmar flexion, 30 degrees ulnar deviation and
10 degrees radial deviation. The left elbow has no specific tenderness, swelling
or synovitis. There is some diffuse tenderness to palpation along the extensor
muscles and posterior aspect of the forearm…. The elbows show 0 to150 degrees
of flexion, 90 degrees supination and 80 degrees pronation. The left shoulder is
mildly tender rather diffusely, especially over the anterior aspect. There is more
tenderness directly over the superior aspect of the trapezius muscle on the left,
which is quite light. She does have scapulothoracic crepitus with range of motion
of the left shoulder. Left shoulder motion elicits complaints of pain and is limited
by resisted muscle contractions. Motor strength testing of the shoulder girdle
shows diminished strength in all planes and all muscle groups. Flexion and
extension of the elbow and wrist also shows diminished strength to every function
tested. … On specific examination of the hands, there is no evidence of thenar
atrophy. There is no evidence of trophic changes.
“RADIOGRAPHS: Radiographs and additional studies were not obtained today.
“IMPRESSION: Painful left upper extremity, with finding[s] consistent with
multiple areas of tendinitis fitting the overall picture of fibromyalgia.
“DISCUSSION: The specific question for today’s referee examination is ‘Does
[appellant] have left carpal tunnel syndrome?’ There is no objective evidence of
carpal tunnel syndrome of the left wrist that I can detect. Her physical
examination today does not indicate or even suggest carpal tunnel syndrome on
the left. In addition, she has had electrodiagnostic studies which were normal on
the left. Since there is no evidence of left carpal tunnel syndrome, there is no
permanent partial impairment rating for left carpal tunnel syndrome. The letter
from the [Office] indicates a conflict between the attending physician and the
[Office] medical adviser in regards to the permanent partial impairment rating that

5

she was given for left carpal tunnel syndrome. I have reviewed the [A.M.A.,
Guides] for both the fourth and fifth editions and I can find no objective evidence
on total review today for a permanent partial impairment rating based on carpal
tunnel syndrome of the left wrist.”
On April 13, 2006 the Office reissued its June 4, 2002 decision.
On April 18, 2006 appellant requested a hearing that was held on August 16, 2006. Her
attorney argued that the Office misled Dr. Wright by failing to advise him that it had accepted
left carpal tunnel syndrome and granted a schedule award for a 10 percent impairment of the left
upper extremity. The attorney maintained that the purpose of the referral to Dr. Wright was to
determine appellant’s left upper extremity impairment under the A.M.A., Guides, not whether
she had left carpal tunnel syndrome. He also questioned whether Dr. Wright had been selected
by the Office under the rotational system using the Physicians’ Directory System (PDS) as
specified in Office procedures.6
By decision dated September 21, 2006, an Office hearing representative affirmed the
April 13, 2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulation8 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.9
Section 8123(a) of the Act provides that “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”10 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of

6

An Office hearing representative noted in a September 21, 2006 decision that the case record contained a PDS
appointment schedule form dated April 18, 2002, documenting that the Office selected Dr. Wright as the impartial
medical specialist in rotation from the PDS.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id.

10

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).

6

such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.11
ANALYSIS
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is necessary to determine whether appellant has more than a 10 percent left
upper extremity impairment.
The Office found a conflict in the medical opinion evidence between Dr. Weiss and
Dr. Collins. It referred appellant to Dr. Wright to determine whether she had continuing left
carpal tunnel syndrome and, if so, her left upper extremity impairment, based on the A.M.A.,
Guides, fifth edition. The statement of accepted facts provided to Dr. Wright, to use as a frame
of reference in forming his opinion, stated that appellant filed a notice of occupational disease for
bilateral carpal tunnel syndrome, underwent right carpal tunnel release surgery and received a
schedule award for right upper extremity impairment. The statement of accepted facts did not
include the fact that the Office accepted left carpal tunnel syndrome or that appellant had
received a schedule award for left upper extremity impairment. Dr. Wright noted in his report
that the statement of accepted facts reflected that appellant underwent surgery for right carpal
tunnel syndrome and received a schedule award for right upper extremity impairment. He stated:
“The main question to be resolved is does [appellant] have left carpal tunnel syndrome as a result
of her job with the [employing establishment]. It appears that Dr. Wright believed that the
Office was asking him to determine whether appellant sustained left carpal tunnel syndrome as a
result of her employment, not whether she had impairment due to her accepted left carpal tunnel
syndrome. He noted left upper extremity symptoms and impairments, including pain, numbness,
tenderness, positive reverse Phalen’s testing, decreased motor strength, decreased left shoulder
range of motion and decreased radial deviation of the wrist (10 degrees).12 As noted,
Dr. Wright’s diagnosis was tendinitis and fibromyalgia, not left carpal tunnel syndrome. The
Board finds that the statement of accepted facts provided to Dr. Wright is not complete and
accurate as it does not reflect that the Office accepted left carpal tunnel syndrome and granted
appellant a schedule award based on a 10 percent impairment.13 Therefore, Dr. Wright’s report
is not based on a complete and accurate factual background and is not sufficient to resolve the
conflict in the medical opinion evidence as to appellant’s left upper extremity impairment.
On appeal, appellant asserted that the case record does not reflect that Dr. Wright was
properly selected from the PDS. An Office hearing representative noted in the September 21,
2006 decision that the case record contained a PDS appointment schedule form dated April 18,
2002, documenting that the Office selected Dr. Wright as the impartial medical specialist in
11

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

12

Ten degrees of radial deviation of the wrist equals a two percent impairment according to Figure 16-31 at page
469 of the A.M.A., Guides, fifth edition.
13

Office’s procedures provide that a statement of accepted facts must contain the date of injury, claimant’s age,
the job held on the date of injury, the employer, the mechanism of injury and the claimed or accepted conditions.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.12 (June 1995);
see also Darletha Coleman, 55 ECAB 143 (2003).

7

rotation from the PDS. There is no indication in the record, nor has appellant provided evidence,
that the Office did not follow its procedures in selecting Dr. Wright as the impartial medical
specialist from the PDS. Therefore, this argument is without merit.14
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should prepare a new statement of accepted facts and refer appellant to an appropriate Boardcertified medical specialist for a left upper extremity impairment rating.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2006 is set aside and the case is remanded for
further development consistent with this opinion.
Issued: September 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14

Appellant indicated on appeal that Dr. Weiss had provided a June 26, 1998 report in which he identified
specific tables in the fourth edition of the A.M.A., Guides that he used in his impairment rating. However, the case
record does not contain a June 26, 1998 report from Dr. Weiss.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G, Appellant
and
DEPARMENT OF VETERANS AFFAIRS,
SAN FRANCISCO VETERANS HOSPITAL,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 14-1137
Issued: November 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 14, 2014 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated January 30, 2014 denying her recurrence
claim. 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 claim.
ISSUE
The issue is whether appellant established a recurrence of a medical condition due to the
accepted April 4, 1988 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a December 19, 2005 decision, the
Board affirmed in part and reversed in part OWCP’s March 28, 2005 decision terminating
appellant’s compensation benefits effective March 28, 2005 on the grounds that she no longer
had residuals of her April 4, 1988 employment injury.2 The Board found that OWCP met its
burden of proof to terminate appellant’s compensation benefits effective March 28, 2005 with
respect to the cervical strain, but had failed to meet its burden of proof in terminating her
compensation benefits with respect to the condition of torticollis and hysterical conversion.3 The
facts and the law of the previous Board decision are incorporated herein by reference.
By decision dated September 26, 2007, OWCP found appellant’s employment as a
program support clerk effective June 15, 2007 fairly and reasonably represented her
wage-earning capacity with no loss of wages.
On July 5, 2011 appellant filed a recurrence claim for medical treatment. She indicated
that she had not stopped work. By decision dated August 16, 2011, OWCP accepted the
recurrence claim. In a September 26, 2012 letter, it noted that it had not received any medical
information in over a year and administratively closed the claim.
On November 6, 2012 appellant filed a recurrence claim alleging medical treatment only.
The employing establishment noted that she had not filed any new injury reports or presented
any medical evidence to support a recurrence or new injury. By decision dated February 1,
2013, OWCP denied appellant’s recurrence claim. It noted that her case remained closed for
medical care. By decision dated May 22, 2013, its hearing representative affirmed the
February 1, 2013 decision.
On November 1, 2013 appellant filed a recurrence claim seeking medical treatment
related to the April 4, 1988 employment injury. She did not claim wage-loss compensation and
listed the date of recurrence as December 1, 2012. Appellant stated that she had a change or
worsening of her accepted work-related conditions, noting severe pain on her left neck which
traveled down her left side to her shoulder and back.
In an August 15, 2013 report, Dr. Melanie Lising, a Board-certified neurologist, noted the
history of injury and that appellant was transferring medical care due to insurance issues. She
stated that appellant had a history of cervical dystonia and neck spasms for about 25 years. A
medical history was discussed and examination findings provided. Dr. Lising diagnosed cervical
dystonia with an unknown etiology. She noted that appellant had an essentially normal general
neurological examination and an underlying lesion was not suspected as her movements had

2

Docket No. 05-1390 (issued December 19, 2005).

3

On May 27, 1988 appellant, then a 40-year-old mail clerk, filed a traumatic injury claim alleging that on
April 4, 1988 she suffered severe neck pain while in the performance of her duties. OWCP accepted the claim for a
cervical strain and subsequently included the conditions of spasmodic torticollis and precipitation of hysterical
conversion. Appellant stopped work on May 16, 1988, returned for a few days and stopped work completely on
July 12, 1988. She was eventually placed on OWCP’s periodic compensation rolls.

2

improved and remained stable for over 20 years. Dr. Lising’s other hyperkinetic movement of
spasms may be compensatory or secondary to her exposure to tardive dyskinesia.
In a November 18, 2013 letter, OWCP noted that the evidence of record was insufficient
to support her claim for a recurrence of her medical condition. It requested additional medical
evidence from appellant, including medical evidence that her accepted-work related condition
subsequently worsened without intervening cause. Appellant was accorded 30 days to submit
the requested information.
In a January 17, 2014 statement, appellant stated that her belief that repetitive lifting
heavy loads of mail, sorting mail and reaching high letter boxes as a mail clerk was causing her
neck pain. She submitted a description of her work duties, a statement entitled “History of the
Original Injury” and a January 1, 2007 statement indicated that the pain in her right elbow from
opening and closing drawers felt better after she went to a few weeks of physical therapy.
Appellant also submitted a letter to Dr. Michael M. Cohen, an orthopedic surgeon,
requesting her medical records. In a June 21, 2013 letter, Dr. Cohen noted that she would no
longer be under his care as of June 21, 2013 and referred her to the Neurology Clinic at UCSF
Medical Center for chronic torticollis and chronic myofascial neck pain. Copies of progress
notes from him dated May 3, 2006, January 1, 2007 and September 28, 2009 were received.
Appellant submitted a statement requesting transfer of care to Dr. Lising. In a
December 1, 2013 report, Dr. Lising noted the history of injury and appellant’s medical course.
She presented examination findings and diagnosed cervical dystonia. Dr. Lising stated that the
etiology of dystonia was uncertain and that she could not determine if it was directly related to
appellant’s prior injury as appellant was new to the center. She indicated that appellant had
current disability and worsening of her dystonia that affected her ability to work with regards to
being able to carry heavy objects or do tasks that required her to maintain a certain posture of her
head for an extended period of time.
By decision dated January 30, 2014, OWCP denied appellant’s recurrence claim of a
medical condition. It found that she had not established that she required additional medical
treatment due to a worsening of her accepted work-related conditions without intervening cause.
OWCP noted appellant’s claim remained closed for medical care.4
LEGAL PRECEDENT
Appellant has the burden of establishing that she sustained a recurrence of a medical
condition that is causally related to her accepted employment injury. To meet her burden, she
must furnish medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the condition is causally related to the employment

4

OWCP advised appellant that if she believed that her repetitive activities at work caused or contributed to her
current cervical condition, she may file a new claim for an occupational disease.

3

injury and supports that conclusion with sound medical rationale.5 Where no such rationale is
present, the medical evidence is of diminished probative value.6
OWCP regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.7
OWCP procedure manual provides that, after 90 days of release from medical care (based
on the physician’s statement or instruction to return as needed or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.8
ANALYSIS
OWCP accepted that appellant sustained a cervical strain, torticollis and hysterical
conversion as a result of the April 4, 1988 work injury. In its prior decision, the Board found
that OWCP met its burden of proof in terminating appellant’s compensation benefits for the
cervical strain effective March 28, 2005, but not for the conditions of torticollis and hysterical
conversion. By decision dated September 26, 2007, OWCP found appellant’s employment as a
program support clerk effective June 15, 2007 fairly and reasonably represented her wageearning capacity with no loss of wages. On September 26, 2012 it noted that it had not received
any medical information in over a year and therefore administratively closed the claim. In her
November 1, 2013 claim for recurrence of disability, appellant attributed the increase in her neck
pain to repetitive lifting heavy loads of mail, sorting mail and reaching high letter boxes as a mail
clerk. The Board finds that there is presently insufficient medical evidence to establish that she
required further medical treatment for a continuing employment-related condition.
There is no indication that appellant was under medical care for her accepted conditions
within 90 days prior to the November 1, 2013 claim for recurrence. Therefore this case cannot
be accepted without a rationalized opinion supporting causal relationship.9 In her reports of
August 15 and December 1, 2013, Dr. Lising indicated that the etiology can be
primary/idiopathic or secondary to another pathology/injury and is often difficult to distinguish.
5

Ronald A. Eldridge, 53 ECAB 218, 220 (2001).

6

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Albert C. Brown, 52 ECAB 152, 155 (2000).

7

20 C.F.R. § 10.5(y).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013). The
procedure manual provides, with certain exceptions, that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. Id. at Chapter 2.1500.4(a).
9

Id.

4

She diagnosed cervical dystonia with an unknown etiology. The fact that a condition’s etlology
is unknown or obscure neither relieves appellant of the burden of establishing a causal
relationship by the weight of the medical evidence, nor shifts the burden of proof of OWCP to
disprove an employment relationship.10 While Dr. Lising indicated in her December 1, 2013
report that appellant has current disability and a worsening of her dystonia which affects her
ability to work, she advised the etiology of dystonia was uncertain and that she could not
determine if it is directly related to appellant’s prior injury. Therefore, she specifically opined
that she could not attribute appellant’s increase in disability and worsening of the cervical
dystonia to the prior injury. Thus, Dr. Lising’s opinion negates a causal relationship between the
April 4, 1988 work injury and appellant’s condition in 2013.
Appellant also submitted reports from Dr. Cohen dated May 3, 2006, January 1, 2007 and
September 28, 2009.
However these reports predate her recurrence claim filed on
November 1, 2013 and, thus, are not relevant to the current claim.
Appellant must submit a rationalized medical opinion addressing the causal relationship
between her current neck conditions in 2013 to her accepted condition of cervical strain in 1998.
An award of compensation may not be based on surmise, conjecture, speculation or upon her
own belief that there was a causal relationship between her condition and her employment.11
Appellant has not submitted a rationalized medical opinion addressing causal relationship. The
Board finds that OWCP properly denied appellant’s 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 10.607.12
CONCLUSION
The Board finds that appellant failed to establish a recurrence of disability causally
related to her April 4, 1988 employment injury.

10

Judith J. Montage, 48 ECAB 292, 294-95 (1997).

11

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

12

OWCP properly noted that if appellant and her physician believe that repetitive activities at work caused or
contributed to appellant’s current cervical condition by direct cause, acceleration, temporary or permanent
aggravation, she may file a new claim for an occupational disease.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 30, 2014 is affirmed.
Issued: November 14, 2014
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
W.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laurel, MS, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 09-2373
Issued: September 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 28, 2009 appellant, through his representative, filed a timely appeal of a
September 29, 2008 merit decision of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s medical
and wage-loss compensation benefits effective September 30, 2008.
On appeal, appellant’s representative contends that the report of the impartial medical
specialist was not sufficient to support the termination of appellant’s compensation benefits.
FACTUAL HISTORY
This case has previously been before the Board. On October 1, 1980 appellant twisted
his foot and ankle in the performance of duty. The Office accepted his claim for a right ankle
sprain on January 9, 1981 and expanded his claim to include arthritis of the metatarsal cuneiform
joint of the right foot on July 25, 1986. The medical evidence establishes that appellant had a

preexisting condition of Charcot-Marie-Tooth disease, a severe peripheral neuropathy. The
Office entered him on the periodic rolls on November 8, 1984. It proposed to terminate
appellant’s compensation benefits by letter dated June 16, 1992.
By decision dated December 1, 1992, the Office finalized the termination effective
December 13, 1992. Appellant appealed this decision to the Board. In a decision dated
September 20, 1996,1 the Board reversed the termination. The facts and the circumstances of the
case as set out in the Board’s prior decision are incorporated by reference.
The Office entered appellant on the periodic rolls on January 24, 1997. Appellant’s
attending physician, Dr. Steven D. Nowicki, a Board-certified orthopedic surgeon, supported
appellant’s disability for work and diagnosed Charcot-Marie-Tooth disease, as well as
osteoarthritis of the right knee. He stated that appellant’s accepted injury-related conditions were
still medically present and totally disabling. On November 14, 2006 Dr. Nowicki recommended
a powered wheelchair and found progressing weakness in appellant’s feet and hands.
The Office referred appellant, a statement of accepted facts and list of questions to
Dr. Byron Thomas Jeffcoat, a Board-certified orthopedic surgeon, for a second opinion
evaluation on April 16, 2007. The statement of accepted facts noted that appellant’s claim was
accepted for right ankle sprain.2 Dr. Jeffcoat completed a report on April 30, 2007 and provided
findings on examination. He found that appellant’s Charcot-Marie-Tooth disease was the reason
for his falls. Dr. Jeffcoat diagnosed Charcot-Marie-Tooth disease, severe degenerative arthritis
of the right knee, moderate arthritic changes of the metatarsal joints of the right foot, congestive
heart failure and small vessel disease with peripheral vascular disease of both lower legs and
diabetes mellitus. He opined that appellant’s work-related injuries had resolved and attributed
his prolonged disability to Charcot-Marie-Tooth disease which typically worsened with age.3
Dr. Jeffcoat stated that appellant was not capable of returning to gainful employment due to his
age and diagnosis of Charcot-Marie-Tooth disease.
The Office proposed to terminate appellant’s compensation on November 27, 2007 based
on Dr. Jeffcoat’s report. Appellant submitted additional records from Dr. Nowicki diagnosing
chronic severe worsening Charcot-Marie-Tooth disease of the hands and feet, insulin-dependent
diabetes, arterial insufficiency to his legs, gallbladder disease and hypertension. He submitted
several reports from Dr. Cleve E. Johnson, a Board-certified orthopedic surgeon, who stated that
1

Docket No. 94-2114 (issued September 20, 1996).

2

There are two statements of accepted facts in the record. An undated statement of accepted facts entered into
the record on April 10, 2007, stated that appellant’s 1980 employment injury was accepted for right ankle sprain as
well as permanent aggravation of Charcot-Marie-Tooth Disease of the right foot. A statement of accepted facts
dated April 10, 2007 lists appellant’s accepted conditions as right ankle sprain only and states that he has a
preexisting condition of Charcot-Marie-Tooth Disease effecting his right foot and ankle. There is no other
indication in the record that the Office accepted a permanent aggravation of Charot-Marie-Tooth disease as resulting
from appellant’s 1980 employment injury.
3

There is no indication in this report that Dr. Jeffcoat received the statement of accepted facts listing as an
accepted condition permanent aggravation of Charot-Marie-Tooth disease. He indicates that this condition was
continuing unlike the accepted work-related condition of right ankle sprain.

2

work-related injuries of repeated sprains had aggravated his preexisting condition of CharcotMarie-Tooth disease.
The Office found that there was a conflict of medical opinion evidence between
Drs. Johnson and Nowicki and Dr. Jeffcoat regarding the causal relationship of appellant’s
current condition to his accepted employment injuries. It referred appellant and a list of
questions to Dr. William L. Park, IV, a Board-certified orthopedic surgeon, for an impartial
medical examination. In a report dated February 29, 2008, Dr. Park stated that he had evaluated
appellant “as well as his available medical records.” He listed his findings on physical
examination and diagnosed Charot-Marie-Tooth or hereditary motor sensory neuropathy,
arthritic right knee and right foot tarsometararsal arthritis and history of ankle sprain on
October 1, 1980. Dr. Park noted that appellant’s ankle sprain had resolved and that the ankle
sprain was a result of his neuropathy rather than an aggravating factor of that disease. He stated
that appellant was not disabled due to his accepted employment injury, but instead due to his
chronic progressive neuromuscular disease.
The Office proposed to terminate appellant’s wage-loss compensation and medical
benefits in a letter dated March 7, 2008. It allowed him 30 days to respond.
By decision dated September 29, 2008, the Office terminated appellant’s medical and
wage-loss compensation benefits effective September 30, 2008.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.4
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.5 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability.6 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.7
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of the Act which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.8 This is called a referee
4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Id.

6

Furman G. Peake, 41 ECAB 361, 364 (1990).

7

Id.

8

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

3

examination and the Office will select a physician, who is qualified in the appropriate specialty
and who has no prior connection with the case.9 In situations were there are opposing medical
reports of virtually equal weight and rationale and the case is referred to an impartial medical
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based on a proper factual background, must be given special weight.10
The Office’s procedures provide that a statement of accepted facts must contain the date
of injury, claimant’s age, the job held on the date of injury, the employer, the mechanism of
injury and the claimed or accepted conditions.11 It may also include additional elements,
including appellant’s prior medical history, depending on the nature of the condition claimed and
the issues to be resolved.12 The purpose of the statement of accepted facts is to allow a physician
to form an impression of the individual and evidence to be evaluated. The statement of accepted
facts should state the conditions claimed and accepted by the Office, so the physician can assess
whether the diagnoses given in the medical evidence to be reviewed, as well as his own
diagnoses, are consistent with the conditions for which the claim was filed and accepted.13
ANALYSIS
The Office accepted appellant’s claim for sprain right ankle and arthritis of metatarsal
cuneiform joint of the right foot. Appellant’s attending physicians, Drs. Nowicki and Johnson,
Board-certified orthopedic surgeons, supported his disability for work due to his accepted
conditions. The second opinion physician, Dr. Jeffcoat, a Board-certified orthopedic surgeon,
found that appellant’s disability due to his accepted right ankle sprain had ceased. Due to this
conflict of medical opinion evidence the Office properly referred appellant to Dr. Park, a Boardcertified orthopedic surgeon, to resolve the issue of appellant’s continuing disability for work.
In a February 29, 2008 report, Dr. Park stated that he evaluated appellant “as well as his
available medical records.” He listed his findings on physical examination and diagnosed
Charot-Marie-Tooth or hereditary motor sensory neuropathy, arthritic right knee and right foot
tarsometararsal arthritis and history of ankle sprain on October 1, 1980. Dr. Park opined that
appellant’s ankle sprain had resolved and that the ankle sprain was a result of his neuropathy
rather than an aggravating factor of that disease. He stated that appellant was not disabled due to
his accepted employment injury, but instead due to his chronic progressive neuromuscular
disease. Dr. Park did not address any disability or medical residuals as a result of the additional
accepted condition of arthritis of metatarsal cuneiform joint of the right foot.

9

R.C., 58 ECAB 238 (2006).

10

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.12
(June 1995).
12

Id. at Chapter 2.809.13. Darletha Coleman, 55 ECAB 143 (2003).

13

Gwendolyn Merriweather, 50 ECAB 411 (1999).

4

The Board finds that the report of Dr. Park is not entitled to the special weight of the
medical opinion evidence because it was based on an inaccurate statement of accepted facts. The
Board notes that it is unclear whether Dr. Park relied on the Office’s April 10, 2007 statement of
accepted facts, which failed to include arthritis of metatarsal cuneiform joint of the right foot as
an accepted condition.14 There is no indication upon what he relied to provide the factual basis
for his report. The record does not contain a statement of accepted facts associated with the
materials referred to Dr. Parks and he did not specifically state that he reviewed the statement of
accepted facts. The statement of accepted facts included in the record and dated April 10, 2007
does not include all of appellant’s accepted conditions. As noted, the condition of arthritis of
metatarsal cuneiform joint of the right foot is not listed as an accepted condition. It is well
established that medical opinions based on an incomplete or inaccurate history are of diminished
probative value.15 Dr. Parks made no findings regarding appellant’s continuing disability or
medical residuals due to this condition. His opinion is, therefore, not based on a proper factual
history. For this reason, the Office improperly relied on the opinion of Dr. Parks to establish that
appellant had no remaining disability or residuals from the accepted injuries. It failed to meet its
burden of proof to terminate appellant’s compensation and medical benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits.

14

There is no evidence supporting that the Office accepted permanent aggravation of Charcot-Marie-Tooth
disease as a result of appellant’s 1980 employment injury other than an undated statement of accepted facts received
into the record on April 10, 2007. The Board finds that the record does not establish that this condition was actually
accepted by the Office.
15

Douglas M. McQuaid, 52 ECAB 382 (2001); T.G., Docket No. 07-2231 (issued June 2, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 22, 2010
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
I.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1198
Issued: March 8, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant, through counsel, filed a timely appeal from a February 1,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 As more
than 180 days has elapsed from OWCP’s last merit decision, dated December 20, 2019, to the

1

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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed beginning
on the day following the date of OWCP’s 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 February 1, 2021, the date of
OWCP’s last decision, was July 31, 2021. As this fell on a Saturday, appellant had until the close of the next business
day, Monday, August 2, 2021 to file the appeal. 20 C.F.R. § 501.3(f)(2. The appeal was received on Monday,
August 2, 2021, rendering it timely.

filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is 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 March 1, 2019 appellant, then a 60-year-old medical supply technician, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2019 she injured her legs, hips,
back, and shoulders when she slipped and fell on a greasy and wet floor while carrying metal trays
while in the performance of duty. 4 She did not stop work.
Appellant underwent diagnostic testing. An April 3, 2019 left shoulder x-ray scan revealed
mild degenerative changes at the acromioclavicular (AC) joint. A right shoulder x-ray scan was
unremarkable. A cervical spine computerized tomography (CT) scan revealed moderate right
foraminal stenosis at C3-4 and multiple degenerative grade 1 subluxations in the cervical and upper
thoracic spine.
In an April 5, 2019 report, Dr. Robert Reppy, an osteopath specializing in family medicine,
recounted that on February 26, 2019 appellant slipped on a concrete floor and fell on her head,
neck, shoulders, low back, and knees at work. He noted appellant’s complaints of neck and
bilateral knee pain. Dr. Reppy discussed appellant’s diagnostic test results, provided examination
findings, and diagnosed aggravation of existing low back pain, degenerative disc disease at C5-6
and C6-7, foraminal stenosis at C3-4, thoracic spine subluxation at multiple levels, and suspected
meniscus tear of the left knee. He also provided range of motion, comparative muscle report,
pinch/grip test, and lift strength evaluation reports dated April 8, 2019.
On April 4, 2019 appellant accepted a full-time, light-duty job offer.
An April 17, 2021 electromyography (EMG) and nerve conduction velocity (NCV) study
revealed abnormal findings of the upper extremities, which suggested the presence of left T1
radiculopathy.

3

5 U.S.C. § 8101 et seq.

4

OWCP assigned the claim OWCP File No. xxxxxx806. Appellant has two previously-accepted traumatic injury
claims. Under OWCP File No. xxxxxx662, OWCP accepted that appellant sustained a right hip contusion causally
related to a July 10, 2006 employment incident. Under OWCP File No. xxxxxx937, it accepted a closed fracture of
the upper and lower end of the left and right fibula condition as causally related to a June 18, 2017 employment
incident. Appellant also has a prior traumatic injury claim under OWCP File No. xxxxxx139 alleging left shoulder,
upper and lower back, left hip, and lower legs injuries due to a March 22, 2017 employment incident. OWCP denied
the claim, finding that the evidence of record was insufficient to establish that the March 22, 2017 incident occurred
as alleged. It has administratively combined OWCP File Nos. xxxxxx662, xxxxxx937, xxxxxx139, and xxxxxx806
with the latter claim as the master file.

2

In an April 25, 2019 report, Dr. Markus Kornberg, a Board-certified orthopedic surgeon,
indicated that he evaluated appellant for multiple symptoms related to a fall that she had at work
on February 26, 2019. On physical examination of the cervical spine, he reported tenderness of
the paracervicals and the trapezius and limited range of motion (ROM) testing. Examination of
appellant’s lumbar spine revealed tenderness of the paraspinal region at L5, tenderness of the
paraspinal region at L4 on the left, and limited ROM. Dr. Kornberg diagnosed low back pain and
lumbosacral spondylosis without myelopathy. He indicated that appellant had preexisting lumbar
issues and opined that she suffered an exacerbation of her preexisting condition. Dr. Kornberg
also diagnosed cervical spondylosis without myelopathy. He reported that appellant had
mechanical cervical neck pain with significant preexisting condition and opined that she suffered
“temporary exacerbation of recent traumatic insult.” Dr. Kornberg further diagnosed left knee
pain and explained that appellant suffered “traumatic insult to the left knee with resultant bruising.”
In a May 16, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised of the type of factual and medical evidence necessary to establish her claim and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond.
Appellant submitted additional reports by Dr. Reppy dated May 3 and June 7, 2019.
Dr. Reppy discussed appellant’s diagnostic test results and provided physical examination
findings. He diagnosed left knee chondromalacia, cervical stenosis, thoracic spine subluxation at
multiple levels, and aggravation of preexisting low back pain due to intervertebral discs.
Dr. Reppy completed a June 7, 2019 duty status form report (Form CA-17) indicating that
appellant could work full-time, modified-duty.
Appellant submitted an emergency room report dated April 3, 2019 by Dr. Elizabeth
Janevski, an emergency medicine physician, who recounted appellant’s complaints of severe neck
and upper back pain following a fall in late February. Dr. Janevski reported that physical
examination of appellant’s upper back demonstrated tenderness over the bilateral paraspinal region
of the upper back, shoulders, and lateral neck. Range of motion was limited due to pain.
Dr. Janevski indicated that a cervical spine CT scan showed degenerative narrowing, but no acute
pathology. She diagnosed muscle spasms of the neck and shoulder region.
By decision dated June 14, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the incident occurred as alleged. Thus,
it concluded that the requirements had not been met to establish an injury as defined by FECA.
On July 12, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
November 8, 2019. Appellant described her previous injuries to her neck, back, hips, and left
shoulder and prior workers’ compensation claims.
In a November 8, 2019 report, Dr. Reppy noted no changes in appellant’s cervical range of
motion. He diagnosed cervical stenosis, thoracic spine subluxation at multiple levels, left knee
chondromalacia, left shoulder degenerative joint disease at the AC joint, and displacement of
lumbar spine intervertebral discs.

3

By decision dated December 20, 2019, OWCP’s hearing representative modified the
June 14, 2019 decision to accept that the February 26, 2019 incident occurred as alleged and that
medical conditions were diagnosed. However, the claim remained denied as the medical evidence
of record was insufficient to establish causal relationship between the diagnosed conditions and
the accepted employment incident.
On December 20, 2020 appellant, through counsel, requested reconsideration. Counsel
argued that appellant’s claim should be accepted based on Dr. Reppy’s reports because he had
treated appellant for her other work-related injuries and had diagnosed aggravation of cervical and
lumbar spondylosis.
Appellant submitted the April 3, 2019 diagnostic examination reports of the lumbar spine
and bilateral shoulders, the April 17, 2019 EMG/NCV study, and Dr. Kornberg’s April 25, 2019
report and June 7, 2019 Form CA-17 report, which were previously reviewed.
Appellant also submitted radiograph reports dated February 28, 2019. A bilateral hip
radiograph showed mild femoracetabular joint space narrowing bilaterally and no acute displaced
fractures. A bilateral knee radiograph demonstrated very mild degenerative change. A lumbar
spine radiograph revealed mild degenerative changes at L5-S1.
OWCP received an April 3, 2019 work capacity evaluation form (Form OWCP-5c) from
Dr. Kornberg who noted a diagnosis of exacerbation of cervical and lumbar spondylosis.
Appellant also submitted a December 20, 2019 report by Dr. Reppy under OWCP File No.
xxxxxx937. Dr. Reppy indicated that he treated appellant for complaints of low back pain
radiating to the bilateral legs after she fell down last Sunday. He provided examination findings
and diagnosed status post right fibula fracture, bilateral tarsal tunnel syndrome, lumbar
degenerative disc disease, lumbar radiculopathy at L5 root and S1 root, and mononeuritis of the
right tibial. Appellant provided additional reports by Dr. Reppy dated January 24, 2020 through
February 5, 2021 regarding medical treatment for her lumbar and right lower extremity conditions.
By decision dated February 1, 2021, OWCP denied appellant’s request for reconsideration
of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
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.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument that: (1) shows that OWCP erroneously applied or interpreted a

5

5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April 28, 2021); 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).

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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. 6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 9
ANALYSIS
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).
On reconsideration, appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Moreover, she did not advance a relevant legal argument not previously
considered by OWCP. As such, appellant is not entitled to review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3). 10
In support of her request for reconsideration, appellant submitted additional medical
evidence, including February 28, 2019 radiograph reports, Dr. Kornberg’s April 3, 2019 Form
OWCP-5c, and Dr. Reppy’s reports dated December 20, 2019 through February 5, 2021. While
this medical evidence is new, it is not relevant because it does not address the underlying issue of
the present case, i.e., whether appellant has established causal relationship between the accepted
February 26, 2019 employment incident and her diagnosed medical conditions. The Board notes
that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.11 Moreover, appellant also submitted April 3, 2019
diagnostic examination reports of the lumbar spine and bilateral shoulders, an April 17, 2019
6

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). 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.
8

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); see B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
10

Id. at § 10.606(b)(3); G.K., Docket No. 20-1026 (issued December 11, 2020); D.T., Docket No. 20-0456 (issued
September 1, 2020).
11

D.C., Docket No. 19-0873 (issued January 27, 2020); E.G., Docket No. 18-0270 (issued August 24 2018);
Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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EMG/NCV study report, and Dr. Kornberg’s April 25, 2019 report and June 7, 2019 CA-17 form
report, which were previously reviewed. The Board has held that the submission of evidence
which duplicates or is substantially similar to evidence already in the case record does not
constitute a basis for reopening a case. 12 Therefore, for the above reasons, appellant also failed to
satisfy the third requirement under 20 C.F.R. § 10.606(b)(3). 13
The Board thus finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
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).
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2022
Washington, DC

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

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

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

12

S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59
ECAB 141 (2007).
13

See D.J., Docket No. 21-0371 (issued November 24, 2021).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 10-1783
Issued: March 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2010 appellant filed a timely appeal from an April 14, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury of his right ankle on August 21, 2006.
FACTUAL HISTORY
On August 22, 2006 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim alleging that on August 21, 2006 he twisted his right ankle when he stepped in a hole while
delivering mail. He included a signed, personal narrative and pay rate information.
On February 16, 2010 appellant filed a Form CA-7 for a schedule award.

In a letter dated March 10, 2010, the Office informed appellant that his claim had
originally been handled administratively as a simple/controverted claim to allow medical
payments up to $1,500.00, but that the merits of the case had not been formally adjudicated. It
advised that it would now proceed to formally adjudicate the claim and that the evidence
appellant submitted was insufficient to support his claim. The medical evidence of record did
not provide a diagnosis of any condition resulting from the August 21, 2006 employment
incident or a physician’s opinion regarding how the employment incident caused any diagnosed
condition.
On March 22, 2010 the Office received another Form CA-7 from appellant requesting a
schedule award. Appellant did not submit any additional medical evidence.
In a decision dated April 14, 2010, the Office denied appellant’s claim. It accepted that
the August 21, 2006 employment incident occurred as alleged, but found that the medical
evidence failed to provide a medical diagnosis or physician’s opinion regarding how any
condition was causally related to the employment incident.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act, that he filed his claim within the applicable time limitation and that an injury was
sustained in the performance of duty.3 To determine whether a federal employee actually
sustained a traumatic injury in the performance of duty, it first must be determined whether “fact
of injury” has been established.4 First, the employee must submit sufficient evidence to establish
that he actually experienced the employment incident at the time, place and in the manner
alleged. Second, the employee must submit evidence, in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB 178 (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

M.M., 60 ECAB __ (Docket No. 08-1510, issued November 25, 2008); Kathryn A. O’Donnell, 7 ECAB 227,
231 (1954).
4

T.S., 61 ECAB __ (Docket No. 09-2184, issued June 9, 2010); John J. Carlone, 41 ECAB 354, 356-57 (1989).

5

T.H., 59 ECAB 388 (Docket No. 07-2300, issued March 7, 2008); Bonnie A. Contreras, 57 ECAB 364, 367
(2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

2

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 employee.6
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a traumatic injury on August 21, 2006. The Office accepted that the employment
incident occurred as alleged when appellant stepped in a hole while delivering mail. However,
the issue of whether the accepted employment incident caused a personal injury generally can
only be established by the submission of medical evidence.7 In this case, appellant has not
submitted any rationalized, probative medical evidence demonstrating that the August 21, 2006
employment incident caused a right ankle injury, as claimed.
Appellant did not provide any medical report from a physician with a diagnosis of his
condition, or a medical opinion which sufficiently describes or explains how the August 21, 2006
employment incident caused the claimed injury. In a letter dated March 10, 2010, the Office
advised appellant of the evidence required to establish his claim but appellant failed to submit
any medical evidence.8 Appellant failed to establish that he sustained a right ankle injury as a
result of the August 21, 2006 employment incident and the Office properly denied his claim.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a right ankle injury on August 21, 2006.

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

J.Z., 58 ECAB 529 (2007); R.D., (Docket No. 10-1037, issued January 12, 2011).

8

See Donald W. Wenzel, 56 ECAB 390 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the April 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4