United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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S.G., Appellant
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and
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DEPARTMENT OF HOMELAND SECURITY,
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TRANSPORTATION SECURITY
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ADMINISTRATION, Warwick, RI, Employer
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___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 13-1993
Issued: June 13, 2014

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 August 28, 2013 appellant filed a timely appeal from the April 24, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her request
for further merit review. As the last merit decision was issued on October 12, 2012, more than
180 days from the filing of this appeal, and pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of the claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 20, 2012 appellant, then a 45-year-old transportation security officer, filed a
traumatic injury claim alleging that she injured her left knee that day when she walked out of the
bag room door onto packed snow and fell while in the performance of duty. The employing
establishment confirmed that she fell and noted that employees were advised not to walk outside
when conditions were snowy or icy.
A January 30, 2012 magnetic resonance imaging (MRI) scan, read by Dr. Krishanu B.
Gupta, a Board-certified diagnostic radiologist, revealed a tear of the insertion of the posterior
cruciate ligament, medial cruciate ligament and severe medial compartment and moderate
patellofemoral and lateral compartment osteoarthritis, massive joint volume and effusion with
synovitis and a small cystic lesion seen within the visualized portions of the distal femur.
In a February 7, 2012 disability certificate, Dr. Norman Kornwitz, a Board-certified
orthopedic surgeon, advised that appellant was unable to work. In a February 7, 2012 treatment
note, he noted that she had an MRI scan which demonstrated significant medial compartment
wear, a tear at the posterior cruciate ligament with a large effusion. Dr. Kornwitz examined
appellant and recommended knee replacement surgery. OWCP also received notes from
physical therapy and nurses.
By decision dated April 18, 2012, OWCP denied appellant’s claim. It found that the
medical evidence did not establish that her left knee condition was related to the
January 20, 2012 incident.
On July 8, 2012 appellant requested reconsideration. She enclosed additional medical
evidence and argued that her condition was work related. Appellant noted that she was
examined nine days prior to her injury and did not have a “posterior cruciate ligament” tear in
her left knee.
In a May 30, 2012 report, Dr. Kornwitz opined that, based upon an MRI scan and
appellant’s examination, “it is my opinion that her posterior cruciate ligament tear was causally
related to her slip and fall on January 20, 2012 while working security.” OWCP received a copy
of the February 7, 2012 report from Dr. Kornwitz and physical therapy notes.
In a July 6, 2012 report, Dr. Wolfgang Fitz, an orthopedic surgeon, noted that he saw
appellant on January 11, 2012. His evaluation of her left knee revealed an effusion, Baker’s cyst
and limited range of motion. Dr. Fitz noted that appellant lacked 10 degrees of extension and
was limited to 70 degrees of flexion. He advised that her posterior cruciate ligament was intact.
Dr. Fitz explained that a total knee replacement was recommended based upon his review of the
radiographic findings and physical examination.
By decision dated October 12, 2012, OWCP denied modification of the April 18, 2012
decision.
On April 12, 2013 appellant requested reconsideration and submitted additional evidence.
She described what happened on the date of the incident. Appellant related that she slipped on
ice and packed snow and fell on her back and was unable to move due to excruciating pain. She
2

noted that her left leg was injured in the incident. Appellant was able to return to full duty on
January 1, 2013 without restrictions. She submitted evidence including various statements and
incident reports pertaining to the January 20, 2012 incident. They included: an April 7, 2006
letter from the employing establishment, which indicated that appellant was offered an
appointment as a transportation security officer; a January 20, 2012 incident report; several
statements from colleagues and parking activity reports. Statements included: an October 26,
2012 statement from Raymond Houtman; a November 2, 2012 statement from Gregory Burr; a
November 21, 2012 statement from Stephen Stone; a December 27, 2012 statement from
John P. Pierson; a January 4, 2013 statement from Transportation Security Officer John Poland;
and an April 14, 2013 statement from Carolyn “Scarlet” Scire. These statements either noted
observing appellant immediately after she fell or indicated that she did not have health issues
prior to the fall.
In a December 21, 2012 report, Dr. Fitz noted that appellant was under his care and could
return to work on January 1, 2013. OWCP received copies of the January 30, 2012 MRI scan
from Dr. Gupta and the February 7 and May 30, 2012 reports from Dr. Kornwitz.
By decision dated April 24, 2013, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant review of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4

2

Id. at § 8128(a).

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

3

ANALYSIS
Appellant disagreed with the denial of her claim and requested reconsideration on
April 18, 2013. The underlying issue on reconsideration is medical in nature, whether the
January 20, 2012 work incident contributed to an injury. In her April 12, 2013 statement,
appellant described the January 20, 2012 incident and asserted that she sustained a work-related
injury. This statement does not show that OWCP erroneously applied or interpreted a specific
point of law or advance a relevant legal argument not previously considered by OWCP as the
underlying issue is medical in nature. Also with her reconsideration request, appellant submitted
various witness statements and incident reports pertaining to the January 20, 2012 incident. This
is not relevant and pertinent new evidence, as the issue on appeal is medical in nature. The
factual occurrence of the January 20, 2012 incident is not in dispute as that incident has been
accepted. The claim was denied due to insufficient medical evidence on causal relationship;
medical evidence addressing how the work incident caused or aggravated a diagnosed medical
condition.
The new medical evidence submitted by appellant included a December 21, 2012 report
from Dr. Fitz, who noted that she was under his care and could return to work on
January 1, 2013. This report, while new, is not relevant as Dr. Fitz did not address the causal
relationship between the accepted work incident and a diagnosed medical condition. The
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case.5 OWCP received copies of the January 30, 2012 MRI scan from
Dr. Gupta and the February 7 and May 30, 2012 reports from Dr. Kornwitz. However, it
previously considered these reports in the prior decision dated October 12, 2012. The Board has
held that the submission of evidence or argument which repeats or duplicates that already in the
case record does not constitute a basis for reopening a case.6
Consequently, the evidence submitted by appellant on reconsideration does not satisfy
any of the regulatory criteria for reopening a claim for a merit review. Therefore, OWCP
properly denied appellant’s request for reconsideration.7
On appeal, appellant argued that the evidence supported that the incident occurred as
she alleged. The Board notes that the factual occurrence of the incident is not in dispute.
Appellant also argued that she did not have any medical conditions prior to her fall and that
Dr. Kornwitz provided an opinion that her condition was causally related. As noted, OWCP
previously considered Dr. Kornwitz’s opinion and found that it was insufficient.
Furthermore, the Board, in the present appeal, does not have jurisdiction to consider the
5

Robert P. Mitchell, 52 ECAB116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).
6

Edward W. Malaniak, 51 ECAB 279 (2000).

7

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); Candace A. Karkoff, 56 ECAB 622 (2005)
(when an application for reconsideration does not meet at least one of the three requirements enumerated under then
section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review
on the merits).

4

merits of the claim. As discussed, appellant did not submit sufficient evidence to require
OWCP to reopen the claim for a merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2014
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

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

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Docket No. 11-750
Issued: January 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On February 3, 2011 appellant filed a timely appeal of a November 24, 2010 Office of
Workers’ Compensation Programs’ (OWCP) merit decision regarding appellant’s rate of pay.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
This case has previously been before the Board on appeal. In a decision dated May 1,
2008, the Board found that appellant worked at the employing establishment as a delivery
supervisor from August 15, 1998 through January 25, 2002 and began working as a part-time
flexible carrier on January 26, 2002. The Board previously determined that appellant had not
worked in the position of part-time flexible carrier for substantially the whole year prior to the
beginning of his disability in March 2002 and that the record established that the position was
one which would have afforded employment for substantially a whole year.
2

With respect to the calculation of an appellant’s pay rate for compensation purposes,
FECA provides for different methods of computation of average annual earnings depending on
1

5 U.S.C. § 8101 et seq.

2

Docket No. 07-2083 (issued May 1, 2008).

whether the employee worked in the employment in which he was injured substantially for the
entire year immediately preceding the injury and would have been afforded employment for
substantially a whole year, except for the injury.3 Section 8114(d)(2) of FECA provides
“Average annual earnings are determined as follows: … If the employee did not
work in employment in which he was employed at the time of his injury during
substantially the whole year immediately preceding the injury, but the position
was one which would have afforded employment for substantially a whole year,
the average annual earnings are a sum equal to the average annual earnings of an
employee for the same class working substantially the whole immediately
preceding year in the same or similar employment by the United States in the
same or neighboring place as determined under paragraph (1) of this subsection.”4
In the May 1, 2008 decision, the Board directed OWCP to undertake further development
by contacting the employing establishment to determine whether there was more than one similar
employee and whether the employing establishment selected a similar employee with the highest
number of hours in addition to requesting whether the employee selected was of the same grade,
step and area as appellant.
In undertaking further development, OWCP received confirmation that the selected
employee was of the same grade step and area of appellant, however, OWCP did not ask that the
employing establishment provide the remainder of the information requested by the Board in the
May 1, 2008 decision. It did not ask whether more than one employee had a similar grade, class
and area and it did not obtain the actual yearly earnings of the employee working the greatest
number of hours in the same position as appellant, i.e., part-time flexible carrier.
OWCP did not follow the Board’s remand instructions and request all the additional
information as directed in the Board’s May 1, 2008 decision. In the July 26 and November 24,
2010 decisions, it essentially used the pay rate determination of May 9, 2007 in calculating
appellant’s loss of wage-earning capacity.
The Board has final authority to determine questions of law and fact. Its determinations
are binding upon OWCP and must, of necessity, be so accepted and acted upon by the Director
of OWCP.5 The Board finds that OWCP failed to undertake development of appellant’s pay rate
in accordance with the Board’s May 1, 2008 decision and the case will be set aside and
remanded to OWCP for further development concerning appellant’s pay rate as specifically
directed in the prior Board decision. Following any such further development as deemed
necessary, OWCP shall issue an appropriate decision in this case.

3

5 U.S.C. § 8114(d)(1), (2).

4

Id. at § 8114(d)(2).

5

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84 (1949). See also
Frank W. White, 42 ECAB 693 (1991) (Board’s order in a prior appeal imposed an obligation on the Director to take
particular actions as directed). See L.C., Docket No. 09-1816 (issued March 17, 2010) (OWCP did not follow the
Board’s instructions in ascertaining the information necessary to determine payrate).

2

IT IS HEREBY ORDERED THAT the November 24, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this order of the Board.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE ARMY, AVIATION &
MISSILE COMMAND, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 17-0779
Issued: December 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 24, 2017 appellant, through counsel, filed a timely appeal from a
December 20, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease causally related to accepted factors of his federal employment.
FACTUAL HISTORY
On August 8, 2014 appellant, then a 58-year-old aircraft mechanical parts repairer, filed
an occupational disease claim (Form CA-2) alleging that he was having difficulty grasping items
at work. He explained that his physician suspected he was dropping his tools and parts at work
due to carpal tunnel syndrome. Appellant indicated that he first became aware of his claimed
condition and realized that it resulted from his federal employment on March 18, 2013. He did
not stop work. Appellant also noted that he had previously sustained a neck injury on
November 28, 2006.3 The employing establishment reported that appellant would be temporarily
accommodated performing light-duty tasks.
Appellant provided a position description for an aircraft mechanical parts repairer, a
detailed list of his employment duties as of 1975, and medical reports regarding treatment for his
November 28, 2006 work-related neck injury.
Dr. Paxton J. Longwell, a Board-certified neurologist, conducted an electromyography
and nerve conduction velocity (EMG/NCV) study of appellant’s upper extremities and in a
March 25, 2014 report noted that appellant worked as a helicopter mechanic. He related
appellant’s complaints of neck and bilateral hand pain and of weakness and numbness in both
hands. Dr. Longwell indicated that examination revealed normal and symmetrical deep tendon
reflexes (DTR). Tinel’s sign of both wrists were positive. Dr. Longwell reported that the
EMG/NCV study of the upper extremities showed significant compressive neuropathies of the
bilateral median nerves at the wrist, i.e., moderately-severe bilateral carpal tunnel syndrome. He
noted no evidence of cervical radiculopathy, brachial plexopathy, or more proximal entrapment
neuropathy.
On May 6, 2014 appellant underwent cervical fusion surgery. In hospital records dated
May 6 and 7, 2014, Dr. Smith noted a diagnosis of acute cervical radiculopathy. He
recommended pain medication and provided discharge instructions.
In a May 24, 2014 hospital record, Dr. Antonio Lykos, an osteopath specializing in
family medicine, related appellant’s complaints of headache and neck pain. He noted appellant’s
history of a slip and fall and status post cervical fusion. Examination of appellant’s neck
revealed tenderness and decreased range of motion. Dr. Lykos reported a negative cervical spine
computerized tomography (CT) scan. He diagnosed forehead hematoma and acute cervical spine
strain and provided discharge instructions.
3

The record reveals that appellant had a previously accepted traumatic injury claim OWCP File No. xxxxxx207
for neck sprain and brachial neuritis or radiculopathy occurring on November 28, 2006. Appellant received
schedule award benefits for this injury from November 4 2011 until September 4, 2012. He also received
compensation benefits on the periodic rolls from May 6 until July 1, 2014 and on the supplemental rolls from
November 4, 2014 through January 7, 2015.

2

In a May 24, 2014 cervical spine CT scan report, Dr. Kenneth Cook, a Board-certified
radiologist, noted no acute abnormalities. He also observed an intact previous surgery for C4-6
degenerative disease. In a May 24, 2014 head and brain CT scan report, Dr. Cook indicated a
negative CT of the brain.
Dr. Smith completed a June 27, 2014 work capacity evaluation (Form OWCP-5c) in
which he checked a box marked “No” indicating that appellant was not capable of performing
his usual job. He noted that appellant could work with restrictions of no reaching, twisting,
pushing, pulling, lifting, squatting, kneeling, and climbing.
In a July 8, 2014 Form OWCP-5c, Dr. Pendleton indicated that appellant was capable of
working with restrictions of no reaching, reaching above the shoulder, twisting,
bending/stooping, pushing, pulling, lifting, squatting, kneeling, and climbing. He noted that
appellant was status post anterior cervical fusion surgery at C5-6 to C7.
Appellant indicated in an undated statement that he underwent pain management with
Dr. Gabriel Lopez, a Board-certified anesthesiologist, for five years following his November 28,
2006 neck injury. He explained that in 2013, Dr. M.J. Pendleton, an internist, became his
primary care physician and referred him to Dr. Howard Smith, a Board-certified neurosurgeon,
who recommended diagnostic testing. Appellant explained that the results of the diagnostic
testing revealed that he had a severe case of carpal tunnel syndrome and needed surgery. He
noted that his condition would worsen if he kept using his hands and elbows. Appellant
indicated that after the cervical surgery he still experienced grip numbness, tingling in both
hands, and he continued to drop tools. Therefore he concluded that his neck injury caused the
carpal tunnel syndrome.
The employing establishment informed appellant in a July 22, 2014 memorandum that he
would be temporarily accommodated performing light-duty tasks. It described appellant’s
employment duties.
Dr. Smith continued to treat appellant. In a July 25, 2014 report, he noted that appellant
was status post anterior cervical discectomy and fusion and still complained of a burning
sensation to both shoulders and into the bilateral upper extremities. Dr. Smith described
appellant’s 2006 neck injury and the medical treatment he had received. He indicated that he
reviewed a recent cervical spine magnetic resonance imaging (MRI) scan which showed a large
disc herniation at C5-6 with signal changes in the cord on the T2 images and a right C6-7 disc
herniation. Dr. Smith reported that an EMG/NCV study also revealed bilateral carpal tunnel
syndrome. He related appellant’s diagnoses of brachial neuritis, cervicalgia, and cervical
spondylosis onset January 31, 2014 and carpal tunnel syndrome onset March 28, 2014. Upon
physical examination of appellant’s cervical spine, Dr. Smith noted that appellant’s wound was
well-healed and sensation was intact to light touch and pinprick. Strength was 5/5. Dr. Smith
explained that he had expected appellant to be doing much better by this time and recommended
physical therapy and a functional capacity evaluation (FCE). He provided a July 25, 2014 duty
status report (Form CA-17) with appellant’s work restrictions.

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Appellant submitted a July 29, 2014 employing establishment health unit note by a
physician assistant with an illegible signature which indicated that appellant could return to work
with restrictions continuing for eight weeks.
In an August 8, 2014 statement, E.C., appellant’s supervisor, reported that appellant
worked in the UH-60 Transmission Assembly cost center and related that his duties as an aircraft
mechanical parts repairer were to assemble and subassemble air force and army transmissions.
He explained that appellant used his hands and wrist to turn wrenches and record information on
all supporting documents. E.C. noted that he was unaware of appellant’s carpal tunnel syndrome
resulting from the prior November 28, 2006 injury. He related that, since becoming appellant’s
supervisor, appellant had not complained about the condition to him or use any leave due to a
carpal tunnel problem. E.C. indicated that he was not informed of appellant’s carpal tunnel
syndrome until July 22, 2014 when appellant asked for assistance to fill out a Form CA-2. He
reported that appellant was temporarily accommodated beginning July 22, 2014 to perform lightduty tasks.
Appellant submitted a September 5, 2014 FCE report by Maria Chavez, a physical
therapist, who concluded that appellant was capable of performing light to medium work.
On September 23, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a November 8, 2014 handwritten statement, appellant related that on October 27, 2014
he was working on a UH-60 main transmission and started to break torque when he felt a bone or
muscle move. He indicated that he felt back pain and neck stiffness when he turned to the left or
right. Appellant reported the injury and went to the blue room where emergency medical
services (EMS) were called. He related that when EMS arrived they informed him that his vitals
were high. Appellant explained that he returned to work because his supervisor told him that the
work excuse from his doctor did not sufficiently explain the duties that he could not perform. He
noted that when he went to see Dr. Pendleton on November 4, 2014, Dr. Pendleton advised him
to consider medical disability retirement. Appellant indicated that the employing establishment
continued to instruct him to go to work because his medical documents were not sufficient to
excuse him from work.
In a letter dated November 21, 2014, OWCP advised appellant that the evidence
submitted was insufficient to establish his occupational disease claim. It requested that he
complete the attached development questionnaire to substantiate the factual elements of his claim
and provide medical evidence to establish a diagnosed condition as a result of his federal
employment. Appellant was afforded 30 days to submit the requested information.
Dr. Smith noted in a December 1, 2014 report that appellant remained under his care. He
indicated that appellant was informed not to return to work from October 29 to
November 26, 2014. Dr. Smith related that when appellant returned for a follow-up visit, he then
took appellant off work for an additional six weeks.
In a December 13, 2014 handwritten statement, appellant clarified that when he returned
to work on December 18, 2006 he worked regular duty. He noted that he did not work light duty
until after he stopped work from March 23 to July 21, 2013. Appellant explained that he then

4

worked limited duty for two weeks before returning to full duty. He alleged that during the time
period of working regular duty from August 23, 2013 to April 11, 2014 he complained of not
being able to hold and grab his tools, losing strength in his upper body to his fingers, and
numbness and tingling in both his hands and fingers. Appellant also provided a handwritten job
description of his duties.
By letter dated December 14, 2014, appellant informed OWCP that Dr. Smith would be
performing a medical procedure for his carpal tunnel syndrome. He noted that he would send
OWCP a copy of the medical evaluation.
In a December 16, 2014 letter, T.H., chief of the PSA Frontend Division of the
employing establishment, informed appellant that his request for FMLA leave until
December 24, 2014 due to his serious health condition was approved. He noted that appellant
was on LWOP status that began on November 24, 2014.
OWCP denied appellant’s claim in a decision dated January 14, 2015. It accepted
appellant’s employment duties as an aircraft mechanical parts repairer, but denied the claim
because the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted employment factors.
On January 22, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. On July 13, 2015 a telephonic hearing was held. Appellant
related that Dr. Wilson was the first doctor who noticed his carpal tunnel syndrome. He noted
that Dr. Smith performed neck surgery on him and also explained in his report how appellant
developed carpal tunnel syndrome. Appellant related that he still experienced numbness in his
hands and difficulty grasping objects. He noted that he still worked full time.
In a decision dated September 29, 2015, an OWCP hearing representative affirmed the
January 14, 2015 OWCP decision. She determined that the medical evidence of record
demonstrated that appellant was diagnosed with carpal tunnel syndrome, but found that it failed
to establish that his medical condition was causally related to his repetitive employment duties.
On September 21, 2016 appellant, through counsel, requested reconsideration. He
indicated that he was submitting various medical documents that were not previously considered.
Appellant resubmitted Dr. Longwell’s March 25, 2014 EMG/NCV study report, the
July 24, 2014 employing establishment health unit note with an illegible signature, and the
employing establishment’s December 23, 2014 letter. He also submitted additional employee
health notes dated July 24, 2013 to July 9, 2014 regarding various accidents and injuries that
appellant had experienced at work.
In an April 2, 2014 work release and hospital note, Dr. Alainya Tomanec, an
anesthesiologist, indicated that appellant was seen in the emergency department on
April 2, 2014. She noted a diagnosis of cervical radiculopathy. Dr. Tomanec opined that
appellant may return to work with restrictions on April 3, 2014. In the margins of the report,
appellant indicated that he had to return to work in April 2014 because his supervisor told him
that he would be put in LWOP status.

5

Appellant also submitted a description of his work duties and the movements he
performed in the disassembly area of his shop. He indicated that the physical requirements of his
job included pushing and pulling for 30 minutes on a cart, many times on wrenches and torque
wrenches per hour, walking for one hour, standing, sitting, and examining for five to six hours.
In a February 10, 2015 letter, Dr. Pendleton noted that appellant was seen in his office on
January 29, 2015. He related that based on physical evaluation and discussion with appellant’s
psychiatrist, appellant could return to sedentary work-related duties.
By decision dated December 20, 2016, OWCP denied modification of the September 29,
2015 decision. It found that the medical evidence of record was insufficient to establish that
appellant’s carpal tunnel syndrome was causally related to his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
Appellant alleges that he sustained carpal tunnel syndrome as a result of his repetitive
duties as an aircraft mechanical parts repairer. OWCP accepted appellant’s repetitive job duties
4

Supra note 2.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

8

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

6

and that he was diagnosed with bilateral carpal tunnel syndrome. However, it denied his claim
because the medical evidence submitted failed to establish that his bilateral carpal tunnel
syndrome was causally related to his employment. The Board finds that appellant has not met
his burden of proof to establish his occupational disease claim.
Appellant was primarily treated by Dr. Smith. In hospital records dated May 6 and 7,
2014, he noted a diagnosis of cervical radiculopathy. In a July 25, 2014 narrative report,
Dr. Smith described appellant’s 2006 cervical injury and the subsequent medical treatment he
had received. He reported on July 25, 2014 that an EMG/NCV study revealed bilateral carpal
tunnel syndrome. Dr. Smith provided physical examination findings and noted diagnoses of
brachial neuritis, cervicalgia, and cervical spondylosis onset January 31, 2014 and carpal tunnel
syndrome onset March 28, 2014. He indicated that appellant could work with restrictions. The
Board notes that Dr. Smith did not provide an opinion on the cause of appellant’s diagnosed
conditions. The Board has held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.10 Dr. Smith did not opine or explain how appellant’s employment duties as an
aircraft mechanic caused or contributed to his carpal tunnel syndrome. Likewise, Dr. Lykos’
May 29, 2014 hospital record and Dr. Tomanec’s April 2, 2014 note related diagnoses of
forehead hematoma, acute cervical spine strain and cervical radiculopathy, but did not provide an
opinion relating the cause of these diagnosed conditions. As such these reports are of limited
probative value regarding the issue of causal relationship.11
Similarly, the diagnostic reports, including Dr. Longwell’s March 25, 2014 EMG/NCV
study report and Dr. Cook’s May 24, 2014 cervical spine CT scan report also provided a medical
diagnosis, but no opinion on the cause of the condition.12 These reports, therefore, are also
insufficient to establish appellant’s claim.
Appellant provided medical reports by Dr. Pendleton who noted in a July 8, 2014
Form OWCP-5c that appellant was status post anterior cervical fusion surgery at C5-6 to C-7 and
was able to work with restrictions. In a February 10, 2015 letter, he authorized appellant to
return to sedentary work-related duties. Dr. Pendleton, however, did not provide any medical
diagnosis, other than being post anterior cervical fusion surgery. Accordingly, the Board finds
that his medical reports lack probative value because he failed to provide a firm, medical
diagnosis, or any explanation as to the cause of appellant’s alleged condition.13
The additional employing establishment health unit note by a physician assistant and the
physical therapist’s notes also lack probative value. Healthcare providers such as physician

10

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
11

Id.

12

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

13

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

7

assistants, physical therapists, or nurse practitioners, are not considered physicians as defined
under FECA.14
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation.15 Such a relationship must be
shown by rationalized medical evidence of causal relation based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.16 Because appellant has not submitted such rationalized medical evidence in this case,
the Board finds that he has not met his burden of proof to establish his occupational disease
claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an
occupational disease causally related to accepted factors of his federal employment.

14

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. See 5 U.S.C. § 8102(2);
David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as nurses, physician assistants and physical therapists
are not competent to render a medical opinion under FECA). See also M.M., Docket No. 16-1617 (issued
January 24, 2017).
15

See D.R., Docket No. 16-0528 (issued August 24, 2016).

16

Patricia J. Bolleter, 40 ECAB 373 (1988).

8

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.17
Issued: December 11, 2017
Washington, DC

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

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

17

Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board
effective December 11, 2017.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 11-1293 & 11-1825
Issued: April 9, 2012

Case Submitted on the Record

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

JURISDICTION
On May 2, 2011 appellant, through his attorney, filed a timely appeal from a January 11,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
his recurrence of disability claim. On August 2, 2011 he appealed a June 28, 2011 decision
affirming a schedule award for facial disfigurement. 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 case.
ISSUES
The issues are whether: (1) appellant met his burden of proof to establish that he
sustained a recurrence of disability commencing June 7, 2004 causally related to his accepted
condition; and (2) appellant is entitled to more than $50.00 for permanent facial disfigurement.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is the second appeal in the present case. In a March 9, 2011 decision, the Board
affirmed a February 16, 2010 OWCP decision, finding that appellant failed to meet his burden of
proof to establish that he sustained certain cervical disc conditions causally related to his
September 4, 2004 work injury.2 The facts and the circumstances of the case up to that point are
set forth in the Board’s prior decision and incorporated herein by reference.3
Appellant came under the treatment of Dr. Robert J. Takacs, a Board-certified orthopedic
surgeon, from June 5 to August 18, 2003. Dr. Takacs noted that appellant had right arm, leg and
neck problems since the September 4, 2001 work injury. He diagnosed herniated disc at C4-5
and recommended an anterior cervical discectomy and fusion, which OWCP authorized and was
performed on June 10, 2003. In a July 24, 2003 report, Dr. Takacs noted that appellant was
making good progress after surgery. He diagnosed healed spinal fusion of the neck and released
appellant to full-time light-duty work on August 2, 2003 with lifting limited to 10 pounds and no
overhead work. On August 13, 2003 Dr. Takacs clarified that appellant was limited to working
seated at a table with the work in front of him with no excessive flexing or extension of his neck.
On August 2, 2003 the employing establishment offered appellant a light-duty position as
a mail handler, eight hours per day, from 7:00 a.m. to 3:30 p.m. effective that date. The duties
included sorting letters, flats on a belt subject to restrictions of no lifting over 10 pounds and no
overhead work. Appellant accepted the position.
In reports dated October 13 and 27, 2003, Dr. Takacs noted that x-rays revealed
appellant’s cervical spine fusion at C4-5 was solidly in place both superiorly and inferiorly. In
an October 27, 2003 work capacity evaluation, he noted that appellant could work full time with
permanent restrictions of no frequent over the shoulder work, lifting from the floor limited to 35
pounds, from waist 20 pounds and overhead lifting up to 20 pounds. On November 28, 2003
Dr. Takacs noted that appellant had minimal pain after surgery, full range of neck motion and
normal neurological examination. He advised that, based on a functional capacity evaluation,
appellant had permanent restrictions on lifting more than 35 pounds from the floor, lifting more
than 25 pounds from the waist, lifting more than 20 pounds overhead and no frequent overhead
work. Dr. Takacs noted that appellant fell within a light to medium physical demand level of
work and had reached maximum medical improvement. On December 8, 2003 he noted that
appellant was limited to an eight-hour day.
Appellant sought treatment from Dr. William O. Reed, Jr., a Board-certified orthopedic
surgeon. In reports dated May 11 and June 3, 2004, Dr. Reed treated appellant for right arm pain
postsurgery. Appellant had normal sensory and motor function in the upper extremities and
intact reflexes. Dr. Reed noted an MRI scan of the cervical spine did not reveal abnormalities
which would cause arm pain. He diagnosed persistent radiculopathy of the right arm following
2

On September 4, 2001 appellant, a 43-year-old mail handler, was injured while pushing and pulling all purpose
containers. OWCP accepted cervical strain and a herniated disc at C4-5. Appellant also has a claim accepted for
left carpal tunnel syndrome in file number xxxxxx882.
3

Docket No. 10-1101 (issued March 9, 2011).

2

surgery and continued his work restrictions.
On July 19, 2004 Dr. Reed noted an
electromyogram (EMG) revealed chronic radiculopathy on the left. He believed this to be a
transient condition that could be due to surgery. Dr. Reed stated that the right arm pain was
improving, “not terribly bothersome” and that continued improvement was expected.
On September 15, 2005 appellant telephoned OWCP and noted that he currently received
an annuity from the Office of Personnel Management (OPM) but advised that he wanted to apply
for wage-loss compensation. He asserted that the employing establishment was unable to
accommodate him. OWCP asked appellant to file a claim for a recurrence of disability.
Appellant reiterated his assertions in a January 4, 2006 telephone call. In a January 8, 2006
e-mail, he asked for compensation for scarring.
On January 27, 2006 appellant submitted a CA-7, claim for compensation for the period
starting June 2004. The employing establishment noted that appellant stopped work and
accepted a disability retirement effective on June 7, 2004.
In a February 6, 2006 letter, OWCP advised appellant of the factual and medical evidence
needed to establish his recurrence claim. In a February 7, 2006 letter, appellant stated that he
was never offered a light-duty job. On February 11, 2006 he indicated that he was not working a
light-duty job and he stopped work because of a worsening condition; rather, he stopped because
he was unable to perform his mail handler duties. Appellant noted that his disability did not
allow him to perform his mail handler duties and he was not offered other suitable work.
In a decision dated April 19, 2006, OWCP denied appellant’s claim for wage loss finding
that the evidence did not establish that his disability for work was caused by his accepted injury.
On April 19, 2006 appellant requested an oral hearing which was held on August 9, 2006.
He submitted reports from Dr. Curtis D. Johnson, a Board-certified orthopedic surgeon, dated
August 11 to October 17, 2006. Appellant was treated for neck and shoulder pain. Dr. Johnson
diagnosed status post C4-5 cervical fusion, multilevel degenerative disc disease of the cervical
spine, myofascial pain and failed neck syndrome and recommended physical therapy and trigger
point injections. A September 25, 2006 cervical spine MRI scan revealed a solid interbody
fusion at C4-5, mild degenerative central canal stenosis at C3-4, C4-5, mild degenerative
bilateral foraminal stenosis at C3-4 with no disc protrusion or extrusion.
In an October 20, 2006 decision, the hearing representative affirmed the April 19, 2006
decision. He found that the evidence failed to establish appellant’s claim for recurrence of
disability beginning June 2004. The hearing representative did not establish a change in the
nature of the light-duty position or a change in the nature and extent of appellant’s work-related
condition.
On June 7, 2010 appellant filed a Form CA-7, claim for compensation, for the period
June 20, 2004 to June 7, 2010 for “loss of job.” In a June 23, 2010 letter, OWCP requested
additional information. It noted that appellant’s disability retirement was effective on
June 7, 2004. At that time, appellant had permanent restrictions from Dr. Takacs and had
accepted a light-duty job in February 2004. OWCP requested that appellant address why he
stopped work on June 7, 2004.
3

The employing establishment noted that appellant accepted disability retirement on
June 7, 2004 and, at that time, he was working under Dr. Takacs’ October 27, 2003 restrictions.
Appellant accepted a modified assignment within these restrictions. OWCP requested that the
employing establishment confirm if the limited-duty job would remain available. In a June 23,
2010 e-mail, the employer advised that limited-duty work within appellant’s work restrictions
would have remained available to appellant had he not retired on June 7, 2004.
In a July 4, 2010 letter, appellant noted that he turned down three or four modified
assignments because they were not within his permanent restrictions. He contended that the
employing establishment was not complying with his doctor’s orders.
In a decision dated July 28, 2010, OWCP denied appellant’s claim for wage-loss
compensation as of June 7, 2004. It noted that when he accepted disability retirement, he was
working limited duty within his work restrictions which would have remained available had he
not voluntarily retired. OWCP found no evidence to establish that appellant was unable to
perform the physical requirements of the modified mail handler position.
On September 13, 2010 appellant filed a claim for a schedule award for facial
disfigurement. OWCP notified him that he might be eligible for a schedule award of up to
$3,500.00 for facial disfigurement. It provided appellant with the appropriate application and a
medical form for his physician to complete. Appellant requested an oral hearing which was held
on November 3, 2010.
On October 5, 2010 appellant submitted a disfigurement award application, including
photographs of his face. He stated that his disfigurement was due to a surgical procedure which
left a 2¼ inches long and ½ inch wide scar on his neck and noted the scar area was darker than
his normal skin tone. Appellant noted that the surgery resulted in his retirement from the
employing establishment. When applying for jobs, he was asked about his scar and was asked to
undergo a physical examination which he failed. On May 5, 2010 Dr. Leslie Wiscombe, an
osteopath, stated that appellant’s neck disfigurement would not improve. She stated that the scar
was 8 millimeters wide and 50 millimeters long and was dark and discolored located in the left
submandibular area. Appellant submitted three color photographs of his neck.
On October 21, 2010 OWCP forwarded appellant’s file to an OWCP medical adviser.
On November 12, 2010 the medical adviser reviewed the medical record and photographs. He
noted that, to even see the scar as a consequence of the cervical surgery, appellant has to extend
the neck at a 30 degree angle which was not the normal carrying angle of the head on the neck.
The medical adviser noted that the scar was mildly hyperpigmented but at the normal carrying
angle of the head would be hardly noticeable. He noted that to be considered for a schedule
award, the disfigurement of the head, face or neck must be of a character that was likely to
handicap appellant in seeking or maintaining employment. The medical adviser noted that
appellant’s scar would have minimal impact on obtaining or maintaining employment. He
recommended a schedule award of $50.00 for the surgical scar.

4

In a November 23, 2010 decision, OWCP granted appellant a schedule award for $50.00
facial disfigurement. On November 30, 2010 appellant requested an oral hearing which was held
on April 14, 2011.4
Following the November 3, 2010 hearing on appellant’s wage-loss claim, the employer
submitted a November 30, 2010 letter that reiterated he was provided a modified job according
to his physical restrictions. It disputed appellant’s assertion that he worked at his full duties.
The employer advised that appellant was instructed by his manager not to exceed his doctor’s
restrictions. It noted that appellant’s modified job assignment would still be available had he not
retired in June 2004.
In a decision dated January 11, 2011, an OWCP hearing representative affirmed the
July 28, 2010 decision denying appellant’s claim for a recurrence of disability beginning
June 7, 2004.
In a decision dated June 28, 2011, an OWCP hearing representative affirmed the
November 23, 2010 disfigurement schedule award. The hearing representative reviewed the
photographs of the scar and found that it was not a serious disfigurement that would handicap
appellant in securing or maintaining employment.
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-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 show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.5
OWCP’s regulations define the term recurrence of disability as follows: “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.
This term also means an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.”6
4

At the hearing, appellant’s counsel questioned whether a District Director or Assistance District Director of
OWCP properly reviewed the matter and concurred in the award. The hearing representative asserted, at the
hearing, that a District Director agreed with the award but the record contains no document from a District Director
concurring with the medical adviser’s opinion on impairment due to scarring.
5

Terry R. Hedman, 38 ECAB 222 (1986).

6

20 C.F.R. § 10.5(x); J.F., 58 ECAB 124 (2006); Elaine Sneed, 56 ECAB 373, 379 (2005); 20 C.F.R. § 10.5(x).

5

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for cervical strain and a herniated disc at C4-5. It
authorized an anterior cervical discectomy and fusion and left iliac crest bone excision which
was performed on June 10, 2003. Following this surgery, Dr. Takacs released appellant to fulltime limited-duty work. On October 27, 2003 he provided permanent restrictions and on
November 28 and December 8, 2003 he reiterated appellant’s restrictions. There is no
contemporaneous evidence of record indicating that the employer did not provide work in
compliance with Dr. Takacs’ restrictions.
Appellant accepted retirement disability on
June 6, 2004. On June 7, 2010 he claimed compensation for total disability beginning in
June 2004 which OWCP developed as a recurrence of disability claim. In the instant case,
appellant has not submitted sufficient evidence to support a change in the nature and extent of
the injury-related condition or a change in the nature and extent of the light-duty requirements.
Reports from Dr. Takacs predate the beginning of the claimed period of disability. His
reports, as noted, following appellant’s surgery indicated that appellant could work full time
within restrictions. Dr. Takacs’ reports most contemporaneous with the beginning of the claimed
period of disability do not offer any opinion that appellant was either totally disable or disabled
from working his light-duty job on or about June 7, 2004. Reports from Dr. Reed dated May 11
and June 3, 2004, noted treatment for right arm pain postcervical surgery and continued his work
restrictions. On July 19, 2004 Dr. Reed opined that appellant’s condition was “not terribly
bothersome” and continued improvement was expected. He provided no opinion that appellant
was either totally disabled or unable to perform his modified duties on or after June 7, 2004.
These reports are insufficient to establish that appellant had work-related disability beginning
June 7, 2004. Instead, they indicate that appellant could continue to work full time within his
restrictions.
Reports from Dr. Johnson from August 11 to October 17, 2006, noted appellant’s
treatment for neck and shoulder pain status post cervical fusion at C4-5. Dr. Johnson diagnosed
status post C4-5 cervical fusion, multilevel degenerative disc disease of the cervical spine,
myofascial pain and failed neck syndrome. However, he does not specifically address how
appellant sustained a change in the nature and extent of his injury-related condition such that he
could not perform his light-duty job on or after June 7, 2004. There is no other medical evidence
of record substantiating that appellant was totally disabled or was unable to perform his limitedduty work beginning June 7, 2004 due to his accepted conditions.
The Board also finds that there is no credible evidence which substantiates that there was
a change in the nature and extent of appellant’s light-duty requirements or that he was otherwise
required to perform duties which exceeded his medical restrictions.

7

M.D., 59 ECAB 211 (2007).

6

On his June 7, 2010 Form CA-7 appellant claimed compensation for “loss of job.” In a
July 4, 2010 letter, he noted that he turned down three or four modified assignments because they
were not within his permanent restrictions. Appellant noted that the employer did not comply
with his doctors orders. However, there is no evidence establishing that any particular duty that
he actually performed exceeded his work restrictions or the employer did not provide him with
appropriate work within his restrictions. The record reveals that appellant voluntarily accepted
disability retirement on June 7, 2004 and at the time of retirement he was working under
restrictions, as noted, from Dr. Takacs. Appellant accepted the modified assignment within
those restrictions and performed that position until the time of his retirement. On June 23 and
November 30, 2010 the employer confirmed that the limited-duty work was within his work
restrictions and would have remained available to him had he not chosen to retire on
June 7, 2004.
Appellant has not met his burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements that prevented him from working beginning June 7, 2004.
LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8107(c)(21) that, for serious disfigurement of the face, head or
neck of a character likely to handicap an individual in securing or maintaining employment,
proper and equitable compensation not to exceed $3,500.00 shall be awarded in addition to any
other compensation payable under this schedule.8 In a case involving facial disfigurement, the
question before the Board is whether the amount awarded by OWCP was based upon sound and
considered judgment and was proper and equitable under the circumstances as provided by
section 8107(c)(21) of FECA.9 As the only limitation on OWCP’s authority is reasonableness,
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions that are contrary to both logic and probable deduction from
established facts.10 The Board will not interfere with or set aside a disfigurement determination
of OWCP unless it is clearly in error.11
OWCP’s procedures provide:
“d. OWCP Medical Evaluation. After the CE has gathered the required evidence, the
case will be referred to the [d]istrict [m]edical [a]dviser (DMA). The DMA will review
the photographs submitted along with the medical evidence of record and place a
memorandum in the file describing the disfigurement and stating whether maximum
improvement has occurred. If not, final action on the application for disfigurement will
be deferred.”
8

5 U.S.C. § 8107(c)(21).

9

Hylan Shelton, 57 ECAB (2006).

10

Daniel J. Perea, 42 ECAB 214, 221 (1990).

11

Matthew Leonka, 38 ECAB 119, 121 (1986).

7

If the DMA finds maximum improvement has occurred, the concurrence of the Assistant
District Director or the District Director must be obtained. The parties evaluating the
disfigurement will place a memorandum in the file which states their findings and decision with
supporting rationale. The case will then be returned to the claims examiner for payment of the
award or denial of the application.12
ANALYSIS -- ISSUE 2
A review of the case record shows that OWCP failed to follow its procedures. On
October 5, 2010 appellant submitted a disfigurement award application. On November 12, 2010
the medical adviser reviewed the medical record and photographs. He found that the scar was
mildly hyperpigmented but, at the normal carrying angle of the head, would be hardly noticeable.
The medical adviser opined that the scar would have minimal impact on obtaining or maintaining
employment. He recommended a schedule award of $50.00 for the surgical scar. On
November 23, 2010 OWCP granted appellant a schedule award for $50.00 facial disfigurement.
The Board notes that, after the medical adviser reviewed appellant’s claim, OWCP did not refer
the case to an Assistant District Director or the District Director for review as contemplated by
OWCP procedures.13 Rather, the determination of appellant’s disfigurement schedule award was
based solely upon the medical adviser’s review of the medical records and inspection of the
photographs. As noted, OWCP procedures provide that the concurrence of the Assistant District
Director or the District Director must be obtained. Although the hearing representative indicated
at the April 14, 2011 hearing that a District Director had concurred in the award, the record
contains no such evidence from the District Director regarding the award. Therefore, the case
will be remanded to OWCP for further development consistent with this decision to be followed
by an appropriate decision regarding appellant’s entitlement to a schedule award for
disfigurement.14
On remand OWCP should follow its procedures in evaluating appellant’s impairment for
facial disfigurement. After conducting necessary development, OWCP should issue an
appropriate merit decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability beginning June 7, 2004. The Board finds that the case not in
posture for decision with regard to his schedule award claim for disfigurement.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.8 (January 2010); see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010).
13

Supra note 12.

14

See Lon E. Grinage, 57 ECAB 177 (2005) (where the Board found that OWCP did not follow its procedures
when it evaluated a claimant’s impairment due to disfigurement when it failed to refer a photograph to the medical
adviser for review and obtain the concurrence of the Assistant District Director or the District Director).

8

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed. The June 28, 2011 decision is set aside and the
case remanded for further development in conformance with this decision.
Issued: April 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
FEDERAL DEPOSIT INSURANCE
CORPORATION, RESOLUTION TRUST
CORPORATION, Newport Beach, CA, Employer
__________________________________________

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

Docket No. 09-348
Issued: December 29, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2008 appellant filed a timely appeal from a May 19, 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 over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition as a consequence of her
accepted employment injury.
FACTUAL HISTORY
This case is before the Board for the third time. By decision dated February 12, 1998, the
Board affirmed a January 7, 1997 decision finding that appellant’s claim was untimely filed.1 In
a decision dated March 16, 2001, the Board reversed a December 2, 1998 decision after
1

Docket No. 96-845 (issued February 12, 1998).

determining that she had timely filed her claim for compensation.2 The findings of fact and
conclusions of law from the prior decisions are hereby incorporated by reference.
On February 23, 1994 appellant, then a 37-year-old former managing agent, filed an
occupational disease claim alleging that she sustained problems with her neck, shoulder and back
due to factors of her federal employment. In accompanying statements, she asserted that she also
sustained anxiety, panic attacks, ulcers and asthma due to her neck injury and stress caused by
pain. Appellant attributed her condition to extensive travel by automobile and airplane, lifting
luggage, files and documents and stress and tension in the course of her employment. She
maintained that she sustained increased anxiety and panic attacks due to her unresolved pain.
Appellant stopped work on September 11, 1990. On September 14, 1990 she underwent surgery
on a C4-5 herniated disc. Appellant returned to work on February 7, 1991 and resigned from
employment on March 15, 1991, citing as reasons her inability to travel and lift luggage due to
neck and shoulder pain as well as family difficulties.
In a statement dated July 29, 1994, the employing establishment related that appellant’s
work assignments were more than 30 miles from her residence and she could stay overnight at
assignments and receive official travel time for commuting to and from work assignments.
In a letter to the Office dated August 24, 1994, Dr. William C. Munn, II, a Boardcertified psychiatrist, noted that appellant experienced pain in her neck, back and shoulders and
increased loss of function of the arms and hands traveling for the employing establishment.3 He
stated, “With the increasing pain and loss of function of her arms and hands, [appellant] began to
have anxiety and alarm over her condition.” Dr. Munn diagnosed panic attacks while
commuting. He further found that her limitations and pain after surgery caused increased stress
and anxiety. Dr. Munn continued to submit periodic reports describing appellant’s condition and
its relationship to employment.
On April 19, 2001 the Office accepted appellant’s claim for an aggravation of cervical
disc herniation. By decision dated October 3, 2001, it found that she was not entitled to
compensation for her cervical condition after February 6, 1991. On March 12, 2002 a hearing
representative set aside the October 3, 2001 decision and remanded the case for further
development of the medical evidence to determine the extent of appellant’s disability due to her
accepted work injury. The hearing representative further instructed the Office to develop the
issue of whether her September 14, 1990 cervical surgery was employment related.
By decision dated May 6, 2002, the Office accepted appellant’s claim for cervical strain,
a temporary aggravation of preexisting C4-5 disc herniation/osteoarthritic changes, all resolved.
It found that she was not entitled to compensation for more than one month. On April 24, 2003 a
hearing representative set aside the May 6, 2002 decision after finding a conflict in medical
evidence. After development of the medical evidence, by decision dated July 24, 2003, the
Office determined that appellant was totally disabled from September 14, 1990 through
2

52 ECAB 315 (2001).

3

The record contains numerous reports from Dr. Munn describing his treatment of appellant for anxiety from
1993 onward.

2

February 6, 1991 and any aggravation due to employment ceased when she resigned from work
on March 15, 1991. It further found that the work injury did not result in the need for cervical
surgery.
In a decision dated February 13, 2004, a hearing representative vacated the July 24, 2003
decision. She noted that Dr. Munn attributed appellant’s need for psychiatric treatment to her
cervical condition. The hearing representative instructed the Office to refer her for a second
opinion to determine whether she sustained a psychological condition due to her accepted
cervical condition.
On March 2, 2004 appellant related that she sustained pain and numbness radiating
through her arms into her fingers while driving during the course of her employment. She stated,
“I found myself unable to drive my car without having a full-blown panic attack thinking I was
going to lose control and crash….” Appellant related that she became depressed due to her panic
attacks and continuous pain. She also claimed as employment-related gastric ulcers,
fibromyalgia, chronic pain syndrome, chronic sleep disorder and disability due to a disc
herniation.
On April 7, 2004 the Office provided Dr. Munn with a statement of accepted facts and
requested that he reexamine appellant to clarify the nature of her emotional condition. In a
report dated May 31, 2004, Dr. Munn noted that he had treated her for 14 years. He related that
appellant “developed chest and neck pain with numbness and tingling paresthesias in her arms
and hands while undergoing the physical stress of driving and handling luggage.” Dr. Munn
diagnosed generalized anxiety disorder and panic attacks which he attributed due to “physical
and emotional stress and the subsequent neck and shoulder pain and paresthesias and
numbness.…” He related that following appellant’s cervical surgery she developed disabling
major depressive disorder due to pain from her physical limitations.
In a report dated July 14, 2004, Dr. Bradley Daigle, a Board-certified psychiatrist, who
provided a second opinion examination, diagnosed a history of panic disorder with mild
agoraphobia and mild adjustment disorder with depressed mood. He found that “factors of
employment did, indeed, lead directly to [appellant’s] initial panic episode and the ensuing panic
and agoraphobia as well as the secondary development of adjustment disorder with depression.”
In response to the Office’s request for clarification, on September 22, 2004, Dr. Daigle found
that appellant’s “psychiatric condition arose in conjunction with the original perceptions of
symptoms and instability of her neck, as well as the aggravation of the cervical spine condition
and surgery, as well as additional nonorthopedic factors of stress, including driving, tension and
so forth.”
By decision dated November 4, 2004, the Office denied appellant’s claim for a
consequential emotional condition. On June 24, 2005 a hearing representative set aside the
November 4, 2004 decision. She noted that the Office did not address the issue of whether
appellant was entitled to disability after February 6, 2001 due to her orthopedic condition. The

3

hearing representative found that the Office should further develop the issue of whether she
sustained a consequential emotional condition.4
The Office referred appellant to Dr. Benjamin Kaufman, a Board-certified psychiatrist,
for a second opinion examination. In a report dated November 14, 2005, Dr. Kaufman
diagnosed a somatization disorder, a pain disorder associated with fibromyalgia and a histrionic
personality disorder with conversion symptoms including pain and weakness. He stated, “In my
opinion, [appellant’s] current emotional condition is caused by the aggravation of her cervical
spine condition [in an] emotionally labile individual.” Dr. Kaufman agreed with Dr. Daigle that
appellant’s “psychiatric complaints stem from that traumatic or pain disorder, during which she
had suffered a panic disorder and the onset of a generalized anxiety disorder.” He found that he
would need further examination to provide a diagnosis.
By decision dated January 10, 2006, the Office found that appellant had no residuals of
her accepted cervical condition after September 10, 1990. It further determined that her
temporary aggravation of a herniated cervical disc did not necessitate her September 14, 1990
cervical fusion and that she had no psychiatric condition due to her accepted work injury.
On March 20, 2006 Dr. Munn again described appellant’s onset of panic attacks while
driving during the course of her work duties. He asserted that her panic attacks and generalized
anxiety disorder “were precipitated by the pain, numbness and paresthesias caused by her
physical condition. When I first saw [appellant] on May 18, 1993, she had not driven on a
highway for two and one-half years because of her panic level anxiety.” Dr. Munn also
diagnosed major depression due to postsurgical pain and limitations and fibromyalgia due to her
neck condition.
By decision dated April 10, 2006, a hearing representative set aside the January 10, 2006
decision after finding that the Office should obtain clarification from Dr. Kaufman. On June 6,
2006 Dr. Kaufman stated, “[Appellant’s] injuries that are employment related and accepted in
the [s]tatement of [f]acts constituted a significant stressor to an underlying but dormant histrionic
personality disorder that underlies conversion symptoms.” He found that her complaints since
March 15, 1991 were unrelated to employment.
By decision dated July 27, 2006, the Office determined that appellant had no residuals of
her work injury after March 15, 1991 and did not sustain a consequential emotional condition. It
further found that she had not established any additional physical conditions due to her accepted
employment injury.5
By decision dated April 3, 2007, a hearing representative remanded the case for the
Office to obtain clarification from Dr. Kaufman regarding whether appellant sustained a
consequential emotional condition. He affirmed the finding in the July 27, 2006 decision that
4

The hearing representative also instructed the Office to amend the statement of accepted facts.

5

In a report dated January 22, 2007, Dr. Munn disagreed with Dr. Kaufman’s finding that she had a personality
disorder or conversion symptoms. On February 13, 2007 appellant described the list of conditions that she believed
resulted from her employment.

4

she had not established that she sustained any other consequential conditions or residuals of her
accepted cervical condition after she resigned from employment.
On May 17, 2007 the Office referred appellant to Dr. Robert B. Hepps, a Board-certified
psychiatrist, for a second opinion examination.6 In a report dated July 5, 2007, Dr. Hepps
diagnosed an adjustment disorder with mixed anxiety and depressed mood, panic disorder and a
probable personality disorder. He found that appellant’s condition was not due to factors of
employment if she sustained only a temporary aggravation of her neck condition. Dr. Hepps
concluded, “If it is accepted that [appellant did] not have an emotional or psychiatric condition
which was caused by the temporary aggravation of her neck condition (and it is my opinion that
this is the case), then there is no industrially caused psychiatric disability.”
By decision dated July 30, 2007, the Office denied appellant’s claim for a consequential
emotional condition. On August 21, 2007 appellant requested an oral hearing, which was held
on February 26, 2008. At the hearing, she attributed her panic attacks and anxiety to her concern
that her employment-related cervical condition would cause her to lose control of her vehicle.
In a decision dated May 19, 2008, the Office hearing representative affirmed the July 30,
2007 decision after finding that appellant failed to establish an emotional condition due to her
accepted work injury.7
On appeal, appellant argues that she resigned due to her employment injury and that the
aggravation of her cervical disc herniation did not cease with her resignation. She also contends
that all of the second opinion examiners opined that her psychiatric condition was a consequence
of her accepted work injury.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of or in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.8
If a subsequent injury is the direct and natural result of a compensable primary injury, it is
compensable.9
Section 8123(a) 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
6

Dr. Kaufman indicated that he no longer performed second opinion examinations.

7

On April 9, 2008 appellant appealed to the Board. She subsequently requested that the Board dismiss her appeal
on May 8, 2008. In an order dated June 19, 2008, the Board dismissed appellant’s appeal. Order Dismissing
Appeal, Docket No. 08-1319 (issued June 19, 2008).
8

Albert F. Ranieri, 55 ECAB 598 (2004).

9

Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117 (1988); A. Larson, The Law of
Workers’ Compensation § 10.01 (2005).

5

a third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.11
ANALYSIS
Appellant alleged that she sustained anxiety and panic attacks as a result of her cervical
condition, accepted by the Office for a temporary aggravation of a preexisting C4-5 disc
herniation and osteoarthritic changes and cervical strain. The Office found that she sustained a
temporary aggravation of preexisting C4-5 disc herniation and osteoarthritic changes and
cervical strain from the identified work factors of extensive travel, including driving an
automobile, and lifting and carrying luggage. It determined that the aggravation resolved no
later than March 15, 1991, when appellant resigned from employment. The Office further found
that her September 14, 1990 cervical disc surgery was unrelated to the work-related temporary
aggravation of her cervical condition.
In numerous reports from 1993 onward, Dr. Munn, appellant’s attending physician,
diagnosed panic disorder due to her fear of losing control of her vehicle while commuting for
employment as a result of her cervical condition. On August 24, 1994 he related that she
experienced anxiety due to her pain and loss of function in her arms while traveling in the course
of her employment. In reports dated May 31, 2004 and March 20, 2006, Dr. Munn attributed
appellant’s panic attacks and generalized anxiety disorder to her work-related neck and shoulder
pain and paresthesias. The Office developed the issue of whether she sustained an emotional
condition as a consequence of her accepted work injury. It referred appellant to Dr. Daigle and
Dr. Kaufman, both of whom attributed her emotional condition, in part, to the aggravation of her
cervical spine condition. On May 17, 2007 the Office referred her to Dr. Hepps for a second
opinion examination. On July 5, 2007 Dr. Hepps opined that the temporary aggravation of
appellant’s neck condition did not cause a psychiatric condition.
The Board finds that a conflict in medical opinion exists between Dr. Munn, appellant’s
attending physician, and Dr. Hepps, the Office referral physician, regarding whether she
sustained a consequential emotional condition. Section 8123(a) of the Federal Employees’
Compensation Act provides that, if there is a 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.12 The case will be remanded to the Office to

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

5 U.S.C. § 8123(a); B.P., 60 ECAB ___ (Docket No. 080-1457, issued February 2, 2009).

6

resolve the conflict under section 8123(a). After such further development as deemed necessary,
the Office should issue an appropriate decision.13
CONCLUSION
The Board finds that the case is not in posture for decision due to an unresolved conflict
in medical opinion.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2008 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: December 29, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

In view of the Board’s disposition of the merits, it will not address appellant’s arguments on appeal.

7