United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1527
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a March 24,
2020 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. 3
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.

3
The Board notes that appellant submitted additional evidence to OWCP following the March 24, 2020 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish expansion of the
acceptance of his claim to include bilateral carpal tunnel syndrome, bilateral knee arthritis, and
internal derangement of the right knee.
FACTUAL HISTORY
On November 9, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2010 he sustained low back and right knee
injuries when loading a postal container onto a truck while in the performance of duty. He
explained that the truck pulled away without warning, causing the container to roll backward.
Appellant stopped work on November 3, 2010. On November 4, 2010 he received treatment in a
hospital emergency department.
In a November 13, 2010 report, Dr. F. Kennedy Gordon, Board-certified in internal and
sports medicine, provided a history of injury and treatment. He noted that appellant under went
arthroscopic right meniscal repair in January 2010. Dr. Gordon diagnosed right-sided cervical
strain, right superior trapezius strain, paralumbar sprain/strain, lower right abdominal strain, right
groin strain, right medial collateral ligament sprain, and history of right meniscal tear. 4
On November 23, 2010 OWCP accepted the claim for lumbar, thoracic, and cervical spine
sprains, sprain of the right lateral collateral ligament, and a groin sprain. 5 It paid appellant wageloss compensation on the supplemental rolls commencing December 26, 2010 and on the periodic
rolls commencing September 25, 2011.6
On July 1, 2011 OWCP referred appellant for a second opinion evaluation and report from
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon. In a July 22, 2011 report, Dr. Lakin
opined that the accepted right knee injury remained active. He recommended right knee
arthroscopy.
On July 7, 2013 appellant returned to modified duty as a mail handler for two hours a day.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls
commencing July 7, 2013.
In an August 1, 2013 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
reviewed a history of injury and treatment. He noted a January 2010 right knee arthroscopy prior
to the accepted injury and a 2003 nonoccupational left knee arthroscopy. On examination,
Dr. Filippone noted: bilaterally-positive Tinel’s and Phalen’s signs over the median nerve at the
wrists; diminished pinprick sensation in the right thumb, index, and middle fingers; decreased
4

Dr. Gordon provided periodic reports dated from December 6, 2010 through May 31, 2013 noting continued right
medial collateral ligament pain and a right meniscal tear requiring surgical repair. A December 30, 2010 magnetic
resonance imaging (MRI) scan of the right knee demonstrated prior meniscal surgery, tear or retear of the posterior
horn, joint effusion, chondromalacia of the patella, diffuse thickening of the patellar tendon, spurring of the p atellar
poles, and a posterior popliteal cyst.
5

Appellant underwent right inguinal hernia repair in February 2016.

6

From June 23, 2011 through February 14, 2013, appellant underwent a series of OWCP-authorized cervical and
lumbar injections, and stereotactic radiofrequency neurotomy of the right L3, L4, L5, S1, S2, and S3 nerve roots.

2

pinprick sensation over the distal volar aspect of all five left fingers and hypothenar eminence;
limited range of motion throughout the spine; right knee swelling; an equivocally-positive drawer
sign in the right knee; and crepitation over the right medial meniscus. He diagnosed cervical and
thoracic radiculitis, right inguinal hernia. and internal derangement of the right knee. Dr. Filippone
opined that all of these diagnoses “need to be accepted by [OWCP].”7
In a September 12, 2013 report, Dr. David Deramo, a Board-certified orthopedic surgeon,
provided a history of January 2010 right knee surgery and the accepted November 3, 2010
employment injury. He diagnosed right knee pain, acute right medial meniscus tear, internal
derangement of the right knee, and patellar chondromalacia.
In a September 13, 2013 report, Dr. Filippone opined that electromyography/nerve
conduction velocity (EMG/NCV) studies of the bilateral upper extremities demonstrated bilateral
carpal tunnel syndrome. 8
Appellant stopped work on March 7, 2014 and did not return.
On June 17, 2014 Dr. Marc S. Arginteanu, a Board-certified neurosurgeon, performed
OWCP-authorized partial L5 laminectomy, partial S1 laminectomy, and L5-S1 discectomy.
By decision dated June 25, 2014, OWCP accepted a recurrence of disability and a need for
medical treatment commencing March 7, 2014. It expanded the acceptance of the claim to include
lumbosacral spondylosis without myelopathy.
By decision dated July 9, 2014, OWCP accepted another recurrence of disability effective
June 17, 2014. It authorized payment of wage-loss compensation for partial disability from
May 31 through June 16, 2014. OWCP placed appellant on the periodic compensation rolls
retroactive to June 29, 2014.
Dr. Filippone provided periodic reports dated from September 5, 2014 through June 30,
2015 diagnosing cervical, 9 thoracic, and lumbar radiculopathy; bilateral carpal tunnel syndrome
with positive Tinel’s and Phalen’s signs; and internal derangement of the right knee. He opined
that these conditions were causally related to the accepted November 3, 2010 employment injury.10
7

An August 19, 2013 MRI scan of the right knee demonstrated mild tricompartmental osteoarthritis, chronic
thickening of the medial collateral ligament and patellar tendon, persistent tear of the posterior horn of the medial
meniscus, persistent radial tear of the lateral meniscus, chondromalacia, and a popliteal cyst and a focal area of
inflammation in the superolateral aspect of Hoffa’s fat pad. August 21, 2013 MRI scans of the cervical and thoracic
spine demonstrated disc bulges at C5-6, C6-7, and C7-T1, thoracic kyphosis and spondylosis deformans, and multiple
Shmorl’s nodes in the lower thoracic region.
8

In November and December 2013 appellant underwent a series of OWCP-authorized lumbar and lumbosacral
injections.
9

A January 13, 2015 MRI scan of the cervical spine demonstrated a C4-5 broad-based posterior disc bulge, C5-6
broad-based midline disc herniation with mild spinal stenosis, board-based posterior disc bulge at C6-7, and C7-T1
asymmetric disc bulge to the right. A May 20, 2015 MRI scan of the right knee demonstrated postoperative changes
from prior partial medial meniscectomy, increased cartilage loss, and patellar tracking disorder.
10

Appellant underwent a series of OWCP-authorized epidural steroid injections from March 26 through
August 13, 2015.

3

In a June 8, 2015 report, Dr. Yaser El-Gazzar, an orthopedic surgeon, noted the onset of
right knee pain after the November 3, 2010 employment injury. On examination, he observed
crepitance of both knees. Dr. El-Gazzar diagnosed patellofemoral syndrome, a right meniscal tear,
acquired genu varum deformity, and synovitis status postemployment injury. He administered a
series of cortisone injections and prescribed a knee brace.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 2, 2015
report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon, reviewed a statement of
accepted facts (SOAF) and the medical record and noted findings on examination. He opined that
the accepted cervical spine injury caused “double crush” bilateral carpal tunnel syndrome due to
compression of cervical nerve roots superimposed on mild compression of the median nerve at the
wrists.
Dr. Filippone submitted reports dated July 31, 2015 through September 26, 2017 finding
appellant totally disabled from work due to cervical, 11 thoracic, and lumbar radiculopathy, bilateral
carpal tunnel syndrome, and internal derangement of the right knee. He op ined that these
conditions were caused by the accepted November 3, 2010 employment injury.
Thereafter, OWCP referred appellant for a second opinion report to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 6, 2017 report, Dr. Askin reviewed a SOAF
and the medical records. On examination, he observed bilaterally-positive Tinel’s sign at the wrist,
and limited active range of motion throughout the spine. Dr. Askin opined that the accepted
employment conditions had resolved without residuals. He attributed appellant’s spinal and
musculoskeletal complaints to obesity “and not consequential to the fact that he fell on
November 3, 2010.” Dr. Askin concluded that the acceptance of appellant’s claim “should not be
expanded to include any other conditions for the November 3, 2010, incident.”
In reports dated November 20, 2017, Dr. Filippone noted bilateral hand numbness
secondary to the use of a cane. 12 In reports dated December 19, 2017, he noted that both knees
were tender and effused. Dr. Filippone opined that appellant urgently required right knee
arthroscopy.
In a January 26, 2018 letter, appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include bilateral carpal tunnel syndrome, based on Dr. Henderson’s
July 2, 2015 opinion.
In a February 14, 2018 report, Dr. Paul M. Brisson, a Board-certified orthopedic surgeon,
related appellant’s complaints of increased numbness and weakness in both hands. He opined that
appellant had sustained cervical and lumbar spine injuries in the November 3, 2010 employment
incident. In a March 14, 2018 report, Dr. Brisson diagnosed bilateral radiculopathy at C5, C6, C7,
and L5-S1.

11

In an October 20, 2015 report, Dr. Filippone noted that a May 6, 2015 EMG/NCV study of the bilateral upper
extremities demonstrated right C5, C6, and C7 cervical radiculopathy and left C5-6 cervical radiculopathy.
12

A November 29, 2017 MRI scan of the right knee demonstrated status post partial lateral meniscectomy,
“[r]ecurrent tear within the posterior horn of the lateral meniscus, “[n]ew vertical tear within the body and posterior
horn” of the medial meniscus, and a small ganglion cyst.

4

OWCP found a conflict of medical opinion between Dr. Filippone, for appellant, and
Dr. Askin, for the government, regarding whether acceptance of the claim should be expanded to
include additional spinal conditions, bilateral carpal tunnel syndrome, and derangement of the right
knee, and whether appellant had continuing work-related disability or required further medical
treatment. It referred appellant, an updated statement of accepted facts (SOAF), and the medical
record to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict of opinion
as the impartial medical examiner (IME).
In a February 15, 2018 report, Dr. Carlson diagnosed resolved cervical, thoracic, and
lumbar sprains, status post lumbar discectomy, a resolved L5-S1 disc herniation, resolved right
lateral collateral ligament sprain, nonoccupational bilateral carpal tunnel syndrome, and
nonoccupational osteoarthritis of both knees.
In a June 4, 2018 report, Dr. Imran Ashraf, a Board-certified orthopedic surgeon,
diagnosed a work-related right knee injury and post-traumatic osteoarthritis. He recommended
right knee surgery.
By notice dated July 18, 2018, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as the accepted employment conditions had ceased. It afforded
him 30 days to submit additional evidence or argument.
Appellant, through counsel, contended in an August 13, 2018 statement that Dr. Carlson
provided insufficient medical rationale. He submitted reports from Dr. Filippone dated from
July 18 through August 16, 2018 reiterating previous diagnoses.
By decision dated August 29, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement of the right
knee, bilateral knee arthritis, right inguinal hernia, herniated/bulging discs of the cervical and
lumbar spine, and cervical and lumbar degenerative disc disease, based on Dr. Carlson’s opinion
as the special weight of the medical evidence.
By decision dated September 7, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, based on Dr. Carlson’s opinion as the
special weight of the medical evidence.
Appellant, through counsel timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review with regard to both the expansion and termination decisions.
During the hearing, held on February 21, 2019, counsel contended that OWCP should have
accepted bilateral carpal tunnel syndrome/double crush syndrome based on Dr. Henderson’s
July 2, 2015 opinion instead of posing the same question to Dr. Askin. He submitted additional
reports from Dr. Filippone dated September 13, 2018 through April 25, 2019, which reiterated that
the November 3, 2010 employment injuries caused bilateral carpal tunnel syndrome and internal
derangement of the right knee.
By decision dated May 8, 2019, OWCP’s hearing representative reversed the September 7,
2018 termination decision, set aside the August 29, 2018 expansion decision, and remanded the
case for additional development.

5

On remand, OWCP referred appellant, an updated SOAF, and the medical record to
Dr. Howard M. Pecker, Board-certified in orthopedic surgery and sports medicine, for an impartial
medical opinion. In an August 6, 2019 report, Dr. Pecker reviewed the medical record and SOAF.
On examination of appellant, he observed triggering of the index and long fingers of the right hand,
and a palpable medial osteophyte of the right knee. Dr. Pecker noted that there was no evidence
of carpal tunnel syndrome. He diagnosed degenerative cervical and lumbar disc disease, and
osteoarthritis of both knees. Dr. Pecker opined that all conditions present on examination were
age-related, without contribution by physical trauma. He returned appellant to full-time medium
duty.
By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day based on Dr. Pecker’s August 6, 2019 report
as the special weight of the medical evidence.
By separate decision also dated September 5, 2019, OWCP denied expansion of the
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement
of the right knee, bilateral knee arthritis, herniated/bulging cervical and lumbar discs, cervical and
lumbar degenerative disc disease, and inguinal hernia based on Dr. Pecker’s opinion as the special
weight of the medical evidence.
On September 12, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both September 5, 2019
decisions. The hearing was held on January 17, 2020.
OWCP subsequently received a July 24, 2019 report, wherein Dr. Serge Menkin, Boardcertified in physiatry and pain medicine, provided a history of injury and treatment. On
examination, he noted positive cervical, thoracic, and lumbar facet loading maneuvers, positive
Apley’s maneuver and McMurray’s sign in the right knee, and a positive right patellofemoral grind
test. He diagnosed lumbar radiculopathy, lumbar facet pain, cervicalgia, thoracic pain, and right
knee pain. Dr. Menkin reiterated these diagnoses in reports through December 18, 2019.
By decision dated March 24, 2020, OWCP’s hearing representative reversed the
September 5, 2019 termination decision. He remanded the case to obtain a supplemental report
from Dr. Pecker on whether the accepted November 3, 2010 employment injury had caused or
contributed to herniated/bulging cervical and lumbar discs, cervical and lumbar degenerative disc
disease, and right inguinal hernia. The hearing representative affirmed the September 5, 2019
denial of expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome, internal derangement of the right knee, and bilateral knee arthritis, based on
Dr. Pecker’s report as the special weight of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
13

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.14 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.15
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evid ence.16
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 17 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.18
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.19
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.20
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or IME) who shall make an
examination. 21 This is called a referee examination and OWCP will select a physician who is
14

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

15

Id.

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
17

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
18

See P.M., Docket No. 18-0287 (issued October 11, 2018).

19

D.B., supra note 14; see V.K., Docket No. 19-0422 (issued June 10, 2020).

20

B.P., Docket No. 19-1376 (issued January 4, 2021); M.O., Docket No. 18-0229 (issued September 23, 2019);
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
21

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

7

qualified in the appropriate specialty and who has no prior connection with the case.22 When there
exist opposing medical reports of virtually equal weight and rationale and the case is referred to
an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 23
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Pecker, the IME, opined in his August 6, 2019 report that appellant’s bilateral knee
conditions were age-related with no contribution from physical trauma. However, he did not
identify the conditions that necessitated the prior bilateral knee surgeries, or explain whether the
accepted right medial collateral ligament sprain would have had any effect on those degenerative
processes or caused an acute meniscal tear. Additionally, in contrast to appellant’s treating
physicians, Dr. Pecker opined that there were no objective findings of carpal tunnel syndrome. He
did not address the reports of Dr. Filippone or Dr. Henderson, which documented the presence of
bilateral carpal tunnel syndrome and supported causal relationship. As Dr. Pecker did not provide
medical rationale, his opinion requires clarification.24
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification and/or
elaboration, OWCP has the responsibility to secure a supplemental report from the exa miner for
the purpose of correcting the defect in the original opinion. 25
For the above-described reasons, the opinion of Dr. Pecker requires clarification.
Therefore, in order to address the unresolved conflict in the medical opinion evidence, the Board
will remand the case to OWCP for a supplemental opinion regarding whether OWCP should
expand its acceptance of the claim to include bilateral carpal tunnel syndrome , internal
derangement of the right knee, and bilateral knee osteoarthritis. If Dr. Pecker is unable to clarify
his opinion or if his requested supplemental report is also lacking rationale, OWCP shall refer
appellant to a new IME for the purpose of obtaining a rationalized medical opinion on the issue. 26
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

23

R.R., supra note 14; see Y.I., Docket No. 20-0263 (issued November 30, 2020); Darlene R. Kennedy, 57 ECAB
414 (2006).
24

B.P., supra note 21.

25

T.C., Docket No. 20-1170 (issued January 29, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
26

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

8

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
M.P., Appellant

Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1289
Issued: September 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 15, 2014 appellant, through his representative, filed a timely appeal from the
December 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied his consequential injury 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
this case.
ISSUE
The issue is whether appellant’s accepted right knee injury on September 21, 2007 caused
a consequential back injury.
FACTUAL HISTORY
On September 21, 2007 appellant, a 32-year-old sheet metal mechanic (aircraft),
sustained a traumatic injury in the performance of duty while squatting. OWCP accepted his
1

5 U.S.C. § 8101 et seq.

claim for a torn right medial meniscus. On June 2, 2009 appellant underwent an arthroscopic
partial meniscectomy.
Dr. Anthony L. Cruse, the attending orthopedic surgeon, saw appellant on July 29, 2009
and noted that “he does better.” Findings were negative. Appellant stated that he was ready to
return to full duty.
Dr. Cruse followed up on August 25, 2009. Appellant stated that “he is doing all right.”
Findings were again negative. Dr. Cruse released appellant from care.
On February 1, 2010 Dr. John W. Ellis, the attending Board-certified family physician,
related appellant’s history. After noting the right knee surgery, he commented that, due to an
altered gait from the injury, appellant started to have problems with his lower back. “He states
that the last couple of months it has gotten worse.” A magnetic resonance imaging scan (MRI)
showed no herniation but did show a small left paracentral disc protrusion at L4-5 and a small
contained midline disc protrusion at L5-S1. Dr. Ellis offered the following on the cause of
injury:
“It is my medical opinion, based upon my examination of the employee, review of
available medical records, my education, training, experience and upon
reasonable medical certainty, that the injuries, impairments and disabilities set
forth in my diagnosis and findings arose out of and in the course of the
employee’s employment and that said employment and work duties contributed
to, aggravated and caused this employee’s said injuries, disabilities and
impairments.”
Appellant claimed compensation for total disability beginning August 2, 2009.
An OWCP medical adviser found insufficient evidence in the medical record to warrant
the acceptance of disc protrusions or other lumbar conditions. He noted that the attending
surgeon made no mention of any back complaints at the time of initial presentation for treatment.
Further, Dr. Ellis’ comment about gait disturbance appeared in conflict with the attending
surgeon’s specific right knee physical examination findings, which were in close temporal
proximity.
In a decision dated March 2, 2011, OWCP denied appellant’s wage-loss claim.
On April 28, 2011 Dr. Ellis advised that when he first saw appellant on April 28, 2008,
he had no symptoms or complaints regarding his back. It was his opinion that appellant’s current
back symptoms and complaints were entirely related to the right knee. “The patient has had to
walk with an altered gait for so long prior to his surgery and even after his surgery that his back
complaints and problems are related to his right knee injury.”
An OWCP hearing representative affirmed the denial of appellant’s wage-loss claim.
She noted that although it was the strong belief of appellant’s representative that appellant’s back
condition was related to his injury-related altered gait, the issue was whether appellant had
provided evidence of his total disability beginning August 2, 2009, and that his surgeon had
released him to full duty on July 29, 2009.
2

On May 15, 2013 OWCP reviewed the merits of appellant’s case and denied his lumbar
injury claim on the grounds that the medical evidence was insufficient to establish that his
lumbar condition was causally related to the September 21, 2007 work injury.
In a decision dated December 18, 2013, an OWCP hearing representative affirmed. She
noted that appellant began complaining about low back pain in April 2009, and the medical
records indicated that he believed this was due to his altered gait following the right knee injury.
There was no mention of an altered gait in any of the medical records prior to April 2009.
Dr. Ellis opined that the work injury caused or contributed the disc protrusions at L4-5 and L5S1, but he did not discuss how he arrived at this conclusion. No other treating physician reported
an altered gait or any objective findings to support that appellant’s right knee condition was
sufficient to cause an altered gait or contribute to a lumbar condition.
On appeal, appellant’s representative argues that Dr. Ellis’ February 1, 2010 opinion,
reiterated on April 28, 2011, is a well-reasoned opinion supported by sound medical rationale.
He adds that, if the opinion of OWCP’s medical adviser carried any weight, it would create a
conflict.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 A claimant seeking benefits under FECA has
the burden of proof to establish the essential elements of his claim by the weight of the
evidence,3 including that he sustained an injury in the performance of duty and that any specific
condition or disability for work for which he claims compensation is causally related to that
employment injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8

2

5 U.S.C. § 8102(a).

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

3

It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and 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 attributable to the employee’s own intentional conduct.9
ANALYSIS
OWCP accepts that on September 21, 2007 appellant tore his right medial meniscus in
the performance of duty, for which he underwent an arthroscopic meniscectomy on June 2, 2009.
Appellant claims that this knee injury and surgery caused an altered gait, which in turned caused
a low back injury that totally disabled him from work beginning August 2, 2009. He therefore
carries the burden of proof to establish the element of causal relationship.
The Board has reviewed the medical record and can find only two reports that provide an
affirmative support for appellant’s consequential injury claim. The first is the February 1, 2010
report from Dr. Ellis, the attending family physician. In relating appellant’s history, Dr. Ellis
commented that, due to an altered gait from the injury, appellant began to have problems with his
lower back, which worsened over the last couple of months. It is not clear to the Board whether
Dr. Ellis was simply reporting what appellant had told him.
Dr. Ellis described the small disc protrusions seen on the MRI scan of appellant’s lumbar
spine and included a statement of opinion on cause of injury, which expressed his medical
opinion that the employee’s diagnoses and findings arose out of and in the course of
employment. However, there is nothing specific to appellant in this statement. It does not
address appellant by name or identify his injury or refer to any particular medical record or
finding or diagnosis. It does not explain from a medical or physiological point of view how an
altered gait caused or aggravated the small disc protrusions found on the MRI scan or otherwise
caused total disability for work beginning August 2, 2009.
Medical conclusions unsupported by rationale are of little probative value.10
The second such opinion in the record is also from Dr. Ellis date April 28, 2011. On that
date, Dr. Ellis addressed appellant’s claim more directly. It was his opinion, he reported, that
appellant’s current back symptoms and complaints were entirely related to the right knee. “The
patient has had to walk with an altered gait for so long prior to his surgery and even after his
surgery that his back complaints and problems are related to his right knee injury.”
Although this is supportive of appellant’s claim, it still fails to provide sufficient medical
rationale to establish causal relationship. Dr. Ellis did not offer a diagnosis for appellant’s low
back complaints and problems. If he meant the small left paracentral disc protrusion at L4-5 and
the small contained midline disc protrusion at L5-S1, he did not explain how an altered gait
could biomechanically affect these protrusions, or what evidence there was beyond appellant’s
subjective complaints that demonstrated an aggravation of these protrusions.
9

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

4

OWCP observed that the medical record made no mention of an altered gait prior to
April 2009, and that Dr. Cruse, the attending surgeon who saw appellant that year, made no
mention of low back symptoms or complaints. The Board notes that appellant was improving
when he saw Dr. Cruse on July 29, 2009. A physical examination of his right knee was negative,
and appellant stated he was ready to start back to full duty. Further, when appellant saw
Dr. Cruse on August 25, 2009, approximately three weeks after he claimed his low back
condition had totally disabled him for work and advised that he was doing all right. His right
knee findings were once again negative, and Dr. Cruse released him from further care.
Dr. Ellis failed to address the relevant facts in his medical opinions. He did not reconcile
this opinion with the rest of the medical evidence of record, including the benign examination
findings reported by Dr. Cruse and appellant’s representations that he was doing all right and
was ready to start back to full duty.
Medical conclusions based on inaccurate or incomplete histories are of little probative
value.11
The Board finds that Dr. Ellis’ opinion on causal relationship lacks sufficient probative
value to establish the critical element of causal relationship. Accordingly, the Board finds that
appellant has not met his burden to establish that his accepted right knee injury on September 21,
2007 caused a consequential low back injury. The Board will therefore affirm OWCP’s
December 18, 2013 decision denying his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
Appellant’s representative asserts that Dr. Ellis’ February 1, 2010 opinion, reiterated on
April 28, 2011, is a well-reasoned opinion supported by sound medical rationale. As explained
above, the Board rejects such assertion. OWCP’s medical adviser did not rebut Dr. Ellis’
professional opinion. Rather he reviewed the record before him and advised OWCP, consistent
with the Board’s finding on appeal, that there is insufficient medical support for OWCP to
expand its acceptance of appellant’s case.
CONCLUSION
The Board finds that appellant has not met his burden to establish that his accepted right
knee injury on September 21, 2007 caused a consequential low back injury.

11

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

5

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF TRANSPORTATION,
)
FEDERAL AVIATION ADMINISTRATION,
)
Oklahoma City, Ok, Employer
)
___________________________________________ )
D.D., Appellant

Appearances:
Gary L. Davis, III, Esq., for the appellant
No appearance, for the Director

Docket No. 09-602
Issued: January 15, 2010

Oral Argument October 14, 2009

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

JURISDICTION
On December 29, 2008 appellant filed a timely appeal of an October 3, 2008 decision of
the Office of Workers’ Compensation Programs, which denied appellant’s request for
reconsideration without conducting a merit review. Because more than one year has elapsed
between the most recent merit decision dated September 26, 2003, and the filing of this appeal,
the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office used the proper standard of review when it refused to
reopen appellant’s claim for reconsideration of the merits on the grounds that her request was
untimely filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY
On August 13, 1998 appellant, then a 36-year-old legal instruments examiner, filed an
occupational disease claim alleging that she sustained an emotional condition resulting from a
hostile work environment while in the performance of duty. Appellant stopped work on
February 22, 1996. The employing establishment indicated that appellant was removed from her
job on September 26, 1997 because she was physically unable to perform the duties of her job.
The Office accepted appellant’s claim for post-traumatic stress disorder and depressive disorder
and paid wage-loss compensation.
On July 22, 2003 the Office referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. Amal Chakraburtty,
a Board-certified psychiatrist. On August 25, 2003 appellant was informed that her appointment
with Dr. Chakraburtty had been rescheduled to September 6, 2003. She was advised of the new
time. The record reflects that the notice was mailed to appellant at her address of record.
On September 8, 2003 the Office was advised that appellant did not keep her
appointment.
On September 11, 2003 the Office proposed to suspend appellant’s compensation
benefits on the grounds that she failed to appear for the examination scheduled for September 6,
2003 with Dr. Chakraburtty. It allowed her 15 days to provide in writing good cause for her
failure to appear and informed her of the penalty provision of section 8123(d) of the Federal
Employees’ Compensation Act.1 The record reflects that the notice was again mailed to her
address of record. Appellant did not respond.
By decision dated September 26, 2003, the Office suspended appellant’s compensation
effective October 5, 2003 because of her refusal to attend the scheduled examination.
On June 30, 2008 appellant requested reconsideration in person. She related that she did
not receive the Office’s letter and, therefore, she did not reschedule the appointment.2
In a decision dated October 3, 2008, the Office denied appellant’s request for
reconsideration for the reason that it was not timely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
An employee shall submit to examination by a medical officer of the United States, or by
a physician designated or approved by the Secretary of Labor, after the injury and as frequently
1

5 U.S.C. §§ 8101-93. The Board notes that the Office made a typographical error, as it indicated section
8423(d) as opposed to section 8123(d). However, the Office properly explained the contents of section 8123(d).
2

The Board also notes that the record contains a September 12, 2007 letter in which appellant advised the Office
that she did not receive the correspondence of September 11, 2003, that she “did not refuse nor obstruct an
examination” and requested that the Office resume her benefits. Additionally, the record contains May 7, 2008
correspondence in which appellant again requested that the Office resume her benefits.

2

and at the times and places as may be reasonably required.3 If an employee refuses to submit to
or obstructs an examination, her right to compensation is suspended until the refusal or
obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the
period of the refusal or obstruction is deducted from the period for which compensation is
payable to the employee.4
To invoke this provision of the law, the Office must ensure that the claimant has been
properly notified of her responsibilities with respect to the medical examination scheduled.
Either the claims examiner or the medical management assistant may contact the physician
directly and make an appointment for examination. The claimant and representative, if any,
must be notified in writing of the name and address of the physician to whom she is being
referred as well as the date and time of the appointment. The notification of the appointment
must contain a warning that benefits may be suspended under 5 U.S.C. § 8123(d) for failure to
report for examination. The claimant must have a chance to present any objections to the
Office’s choice of physician, or any reasons for failure to appear for the examination, before the
Office acts to suspend compensation.5
If the claimant does not report for a scheduled appointment, she should be asked in
writing to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation should be suspended in accordance with 5 U.S.C. § 8123(d) until the date on
which the claimant agrees to attend the examination. Such agreement may be expressed in
writing or by telephone (documented on Form CA-110). When the claimant actually reports for
examination, payment retroactive to the date on which the claimant agreed to attend the
examination may be made. The claimant’s statement that she will not appear for an examination
is not sufficient to invoke the penalty. Refusal to schedule an examination at the direction of the
Office is also insufficient to invoke section 8123(d).6 The action of the employee’s
representative is considered the action of the employee for the purpose of determining whether
the employee refused to submit to or in any way obstructed an examination required by the
Office.7
ANALYSIS
The Board finds that Office used the incorrect standard of review when it refused to
reopen appellant’s claim for reconsideration of the merits on the grounds that her request was
untimely filed and failed to demonstrate clear evidence of error. The record reflects that on
September 26, 2003 the Office suspended her compensation effective October 5, 2003 on the
grounds that her refusal to attend the scheduled examination resulted in an obstruction.
3

5 U.S.C. § 8123(a).

4

Id. at § 8123(d).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (July 2000).
6

Id.

7

20 C.F.R. § 10.323.

3

On June 30, 2008 appellant visited the Office to inquire into what she needed to do to
resume her benefits. Although the Office characterized the visit and her inquiry as a request for
reconsideration, the Board finds that the Office should have adjudicated her claim to determine
whether her compensation benefits should continue to be suspended or reinstated.8 The Office
should have ascertained whether appellant’s appearance on June 30, 2008 would constitute her
agreement to attend the Office medical examination. As noted above, when appellant actually
reports for the examination, payment retroactive to the date on which she agreed to attend the
examination may be made.9 Thus, the Office’s treatment of her appearance on June 30, 2008 as
a request for reconsideration was improper and shall be reversed. As the Office did not properly
adjudicate this issue, the case will be remanded for an appropriate decision.
CONCLUSION
The Board finds that the Office applied the improper standard of review when it refused
to reopen appellant’s claim for reconsideration of the merits on the grounds that her request was
untimely filed and failed to demonstrate clear evidence of error.

8

See Frank W. Manning, Docket No. 97-1505 (issued August 4, 1999).

9

The Board also notes that appellant contacted the Office on September 12, 2007 and May 7, 2008 and
requested that the Office resume her benefits.

4

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2008 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action
consistent with this decision.
Issued: January 15, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Devon, PA, Employer
_________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-309
Issued: May 23, 2008

Case Submitted on the Record

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

JURISDICTION
On November 8, 2007 appellant filed a timely appeal from a June 19, 2007 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the Office’s
January 11, 2007 decision which denied his claim for an increased schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
determination.
ISSUE
The issue is whether appellant established that she has more than a 14 percent permanent
impairment of her right foot for which she received a schedule award.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In an August 28, 2006
decision, the Board found that the case was not in posture for decision regarding whether
1

Docket No. 06-155 (issued August 28, 2006).

appellant had more than 14 percent impairment to her right foot. The Board noted that a conflict
remained unresolved, as Dr. James Nutt, a Board-certified orthopedic surgeon and impartial
medical examiner, failed to clarify whether appellant had an impairment of the foot or her lower
extremity. The Board directed the Office to secure a supplemental report from Dr. Nutt to
correct the defect in his original opinion. The facts and the history contained in the prior appeal
are incorporated by reference. The facts, history and analysis germane to the present issue have
been reiterated.
By letter dated September 27, 2006, the Office requested that Dr. Nutt, clarify his opinion
with regard to whether appellant sustained impairment to her foot or lower extremity.
In a September 28, 2006 report, Dr. Nutt opined that appellant’s injury could be
evaluated utilizing Table 17-31.2 This resulted in a “4 percent impairment of the whole person
or a 10 percent impairment of the lower extremity or a 14 percent impairment of the foot from
the calcaneo-cuboid joint.”
By decision dated January 11, 2007, the Office found that the medical evidence did not
support an increased schedule award. The Office found that Dr. Nutt had clarified his opinion
that appellant was entitled to either 10 percent impairment of the lower extremity or 14 percent
impairment to the foot. The Office indicated that the number of compensation days payable was
essentially the same. The Office indicated that appellant would be entitled to payment for
200.90 days for 14 percent to the foot or 201.60 days for 10 percent of the right leg. The Office
found that the evidence did not support an increase in impairment for which appellant had been
compensated.
By letter dated January 17, 2007, appellant’s representative requested a hearing, which
was held on April 2, 2007.
At the hearing, appellant’s representative alleged that the report of the impartial medical
examiner was inadequate as the reference utilized by Dr. Nutt related to whole person
impairment. He also alleged that a second clarification was not allowed and a new impartial
medical examiner should be obtained.
By decision dated June 19, 2007, the Office hearing representative affirmed the
January 11, 2007 decision. The Office hearing representative found that the report of Dr. Nutt
addressed the conflict as specified by the Board and that the Office properly denied an increase
in the schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
2

A.M.A., Guides 544.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

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 appellants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all appellants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.6 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.7
ANALYSIS
The Office determined that a conflict in medical opinion was created between Dr. Weiss,
appellant’s physician, who found that appellant had 27 percent impairment to the right lower
extremity, and Dr. Whittaker, who determined that appellant had no more than 10 percent
impairment of the right lower extremity. The Office referred appellant to Dr. Nutt, a Boardcertified orthopedic surgeon and impartial medical examiner, to resolve the conflict. On the
prior appeal, the Board directed that the Office request clarification from Dr. Nutt with regard to
appellant’s impairment.
Section 8123(a) of the Act8 provides, 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.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

5

A.M.A., Guides (5th ed. 2001).

6

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000); see also Paul A. Toms, 28 ECAB 403 (1987).

8

5 U.S.C. §§ 8101-8193.

9

Id. at 8123(a).

10

Barbara J. Warren, 51 ECAB 413 (2000).

3

In a September 28, 2006 report, Dr. Nutt opined that appellant’s injury could be
evaluated utilizing Table 17-31.11 Under that table, a claimant with impairment to the calcaneocuboid could receive either “4 percent impairment of the whole person or 10 percent impairment
of the lower extremity or 14 percent impairment of the foot from the calcaneo-cuboid joint.”
The Board notes that Table 17-31 provides the option of choosing any of these percentages. In
applying Dr. Nutt’s findings to the A.M.A., Guides, the Office’s medical adviser expressed
appellant’s impairment as impairment to the lower extremity. The Board has held that where the
residuals of an injury to a scheduled member of the body extend into an adjoining area of a
member also enumerated in the schedule, such as an injury of a finger into a hand, or a hand into
the arm, or of a foot into the leg, the schedule award should be made on the basis of the
percentage loss of use of the larger member.12 Thus, appellant’s impairment is more properly
expressed in terms of impairment to the right leg and this is consistent with Dr. Nutt’s opinion.
The Board finds that Dr. Nutt provided a well-rationalized report based on a proper
factual background and explaining his application of Table 17-31. His opinion is entitled to the
special weight accorded an impartial medical examiner. Dr. Nutt’s report, therefore, constitutes
the weight of the medical opinion evidence and establishes that appellant has no more than 10
percent impairment of the right leg.
While the difference between calculating impairment as being attributable to the leg or to
the foot is minimal, there is a slight difference. According to 5 U.S.C. § 8107(c)(2), the
compensation for total loss of a leg is equal to 288 weeks. Whereas under 5 U.S.C.
§ 8107(c)(4) the compensation for total loss of a foot is equivalent to 205 weeks. As appellant
has 10 percent impairment of the leg, he is entitled to 28.8 weeks of compensation. If he had 14
percent impairment of the foot, he would be entitled to 28.7 weeks of compensation. Appellant
is entitled to an additional .1 (one tenth) week in addition to the 28.7 weeks he has already
received for the impairment to his right foot.13 There is no other medical evidence, conforming
with the A.M.A., Guides that establishes any greater impairment. The Board finds that the
medical evidence establishes that appellant has 10 percent right lower extremity impairment.
Therefore, appellant’s award is modified to reflect that appellant is entitled to an award of 10
percent to the right lower extremity.
On appeal, appellant’s representative alleged that appellant was entitled to greater
impairment than the amount awarded and that the weight of the medical evidence should not rest
with the impartial medical examiner, as his report was insufficient to resolve the medical
conflict. However, Dr. Nutt clarified the nature of his rating of appellant’s lower extremity in
conformance with the A.M.A., Guides. His report is sufficient to resolve the medical conflict.
Subsequent to Dr. Nutt’s report, appellant did not submit any medical evidence, conforming with
the A.M.A., Guides, to support a greater impairment.14
11

Supra note 2.

12

Charles B. Carey, 49 ECAB 528 (1998).

13

28.8 minus 28.7=.10

14

Appellant is not precluded from submitting relevant medical evidence to the Office in support of a request for
an additional schedule award.

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained more than a 10 percent impairment of the right lower extremity for which she received
a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 19, 2007 is affirmed, as modified.
Issued: May 23, 2008
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0780
Issued: October 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 3, 2018 appellant, through her representative, filed a timely appeal from a
January 19, 2018 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 has established that OWCP should expand acceptance of
her claim to include a supraspinatus tear of the left shoulder and bulging cervical discs.
FACTUAL HISTORY
On February 4, 2015 appellant, then a 56-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on January 20, 2015, while at work, she sustained a concussion
when a fence fell striking the left side of her head. She stopped work on January 22, 2015. OWCP
accepted the claim for neck sprain and a concussion without loss of consciousness. It paid
appellant wage-loss compensation for total disability beginning March 11, 2015.
In a February 15, 2015 attending physician’s report (Form CA-20), Dr. Deborah Eisen,
specializing in critical care medicine, provided a history of appellant being hit on the head by an
unsecured gait while moving mail on a deck. She diagnosed a concussion and cervical sprain/strain
due to the employment activity.
A magnetic resonance imaging (MRI) scan study of the cervical spine, obtained on
February 26, 2015, revealed bulging discs at C3 to C7, straightening of the cervical lordosis, and
a chronic loss of height at C5 and C6.
Dr. Eisen, in an undated report received by OWCP on March 4, 2015, discussed appellant’s
work injury and noted that she complained of neck and radiating shoulder pain, headaches, and
dizziness. She diagnosed a concussion, a cervical spine bulge, and cervical sprain/strain.
Dr. Eisen related, “There are seven cervical vertebrae that are separated by discs that support the
spinal cord. With axial compression to the spinal vertebrae, such as in this case with a blunt force
to the head, the vertebrae get compressed putting pressure on the discs. When the contents (nucleus
pulposus) get pressed together, this results in a cervical disc bulge.” She advised that the “act of
the gate hitting [appellant] in the head causing an acceleration-deceleration injury would result in
a concussion with no loss of consciousness, a bulge to the cervical discs and a cervical sprain
strain.” Dr. Eisen advised that the diagnoses were also consistent with appellant’s symptoms and
the findings on examination.
An OWCP medical adviser reviewed the evidence on March 12, 2015 and related, “I do
not believe the multiple bulging cervical discs between C3 and C7 seen on the MRI scan were due
to the trauma of January 20, 2015. Bulging discs are seen on most MRI scans of the spine and are
usually considered either normal or incidental findings. This is especially true when they are seen
at multiple levels at one section of the spine, as in this case.” The medical adviser recommended
a second opinion examination.
By decision dated April 1, 2015, OWCP denied appellant’s request to expand acceptance
of her claim to include cervical disc bulges as causally related to the January 20, 2015 employment
injury. It noted that an OWCP medical adviser had considered the request and found that the
evidence did not establish that she sustained employment-related diagnoses other than a neck
sprain and concussion without loss of consciousness.

2

OWCP subsequently received a January 22, 2015 report from the emergency room.
Dr. Elizabeth Marilyn Franzek, who specializes in emergency medicine, obtained a history of
appellant being struck by a fence post and subsequently experiencing dizziness and syncope. She
noted that the fence was “too heavy to lift off [and] someone had to help her.” Dr. Franzek found
that appellant likely had postconcussive syndrome.
On July 6, 2015 Dr. Eisen referred appellant for a left shoulder MRI scan. The MRI scan
study, obtained on August 7, 2015, revealed a moderate full-thickness distal supraspinatus tendon
tear with retraction of the tendon margin to the medial numeral head, narrowing of the
acromioclavicular joint space, and spurring of the distal clavicle and distal acromion process.
In a report dated August 18, 2015, Dr. Eisen requested that OWCP expand acceptance of
the claim to include a left shoulder condition. She noted that appellant was hit by a gate on her
head and left side and that she could not “lift the gate off of herself.” At the time she initially
sought treatment her physicians focused on her head rather than her shoulder. Dr. Eisen related,
“In addition, when [appellant] told this office the history it was thought that the gate was too heavy
to lift off of her rather than she was physically unable to lift the gate due to injuring her shoulder.”
She related that examination findings showed a positive left supraspinatus test and Apley’s test
and that the left shoulder MRI scan study showed a full-thickness distal supraspinatus tear.
OWCP referred appellant to Dr. Thomas P. Nipper, a Board-certified orthopedic surgeon,
for a second opinion examination. In a report dated January 27, 2016, Dr. Nipper discussed her
current complaints of pain in the left shoulder and neck and reviewed the evidence of record. On
examination, he found left shoulder weakness with external rotation and abduction, full range of
motion of the cervical spine, and normal strength and sensation of the upper extremities.
Dr. Nipper diagnosed a resolved neck sprain. He further found a left shoulder rotator cuff tear,
which he noted OWCP indicated was unrelated to the employment injury. Dr. Nipper opined that
appellant could resume work considering only her neck condition.
On April 1, 2016 Dr. Eisen, in an addendum to her August 18, 2015 report, indicated that
appellant’s diagnosis was a left supraspinatus tear.
OWCP, on June 3, 2016, requested that Dr. Nipper address whether the acceptance of
appellant’s claim should be expanded to include a supraspinatus tear of the left shoulder. It
enclosed additional medical evidence for his review.
Dr. Nipper, in a June 7, 2016 addendum, reviewed the additional medical evidence and
noted that the January 22, 2015 report from the emergency department did not refer to a left
shoulder injury or support Dr. Eisen’s finding that appellant fell on her left shoulder. He opined
that OWCP should not expand acceptance of the claim to include a left supraspinatus tear given
the fact that it was not mentioned in the initial reports from the emergency department.
On November 7, 2016 OWCP advised appellant of its proposed termination of her wageloss compensation and entitlement to medical benefits. It found that Dr. Eisen’s reports
represented the weight of the evidence and established that she had no further disability or residuals
of her accepted injury.

3

In a November 18, 2016 initial evaluation, Dr. Jason R. Baynes, a Board-certified
orthopedic surgeon, obtained a history of a fence falling on appellant, hitting her head, and “having
her fall with the fence falling on her left shoulder….” He related that she had shoulder symptoms
when she sought treatment for dizziness on January 22, 2015, but that physicians did not
concentrate on her shoulder complaints. Dr. Baynes diagnosed a traumatic full thickness rotator
cuff tear of the left shoulder after an employment-related accident. He recommended a rotator cuff
repair and advised that appellant was totally disabled.
By decision dated January 5, 2017, OWCP terminated appellant’s wage-loss compensation
and authorization for medical benefits. It noted that she did not initially assert that she fell on the
ground on her left shoulder or needed help lifting the gate. OWCP found that appellant had no
disability due to her accepted neck sprain or concussion, but instead had disability due to a left
rotator cuff tear, which it had not accepted as work related.
Appellant, on January 30, 2017, requested a telephone hearing before an OWCP hearing
representative. At the telephone hearing, held on July 13, 2017, she related that on January 20,
2015 she was helping a new driver take mail off a truck when a metal gate fell and hit her head.
Appellant was unable to lift it off and yelled for assistance, and the new driver lifted it off of her.
She did not know the driver, but his name was in a report given to her supervisor. At the time
appellant sought treatment she was dizzy and confused, so the medical professionals evaluated her
head rather than her neck and shoulder. She related that she tried to lift the gate off with her left
shoulder, but it was too heavy. Appellant asserted that the fence hit her head and then landed on
her shoulder after she fell.
By decision dated September 25, 2017, OWCP’s hearing representative reversed the
January 5, 2017 decision. He found that Dr. Nipper did not provide a reasoned opinion regarding
whether appellant’s bulging discs were caused or aggravated by the work injury. The hearing
representative instructed OWCP to obtain a supplemental report from Dr. Nipper addressing
whether her disc bulges were caused or aggravated by the work incident and whether her attempt
to lift the metal gate resulted in or aggravated her rotator cuff tear.
Dr. Nipper, in an October 3, 2017 supplemental report, again noted that the hospital report
did not mention a left shoulder injury. He related:
“Based on these emergency room records, the left shoulder condition does not
appear to be causally related to the accident of January 20, 2015.
“As to whether the claimant’s disc bulges (documented in the MRI scan of
February 26, 2015) were caused or aggravated by the work accident of January 20,
2015, when a metal gate struck her head and hand it should be noted that the disc
bulges noted on this MRI scan are part of degenerative disc disease and not trauma
related.”
By decision dated January 19, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include a left shoulder supraspinatus tear and bulging cervical discs. It
determined that Dr. Nipper’s reports constituted the weight of the evidence and established that

4

her left shoulder rotator cuff tear and cervical disc bulges were not causally related to the
January 20, 2015 employment injury.
On appeal appellant’s representative asserts that the reports from Dr. Eisen were sufficient
to expand acceptance of the claim to include cervical disc bulges and a left shoulder supraspinatus
tear. He maintains that the emergency room did not address every issue, but instead the primary
concern at the time, and thus Dr. Nipper used an inaccurate basis for finding the conditions
unrelated. The representative further contends that Dr. Nipper did not provide rationale for his
opinion and thus OWCP did not adequately comply with the remand instructions of the hearing
representative.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.3
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.4 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
The weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.6 Neither the mere fact that a disease or condition manifests itself during a
period of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
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 a
third physician who shall make an examination.8 The implementing regulation provides 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 OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a

3

See V.B., Docket No. 12-599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

4

See Kenneth R. Love, 50 ECAB 276 (1999).

5

See John W. Montoya, 54 ECAB 306 (2003).

6

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

7

See V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECABA 623 (2000).

8

5 U.S.C. § 8123(a).

5

physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9
ANALYSIS
The Board finds that the case is not in posture for decision as there is an unresolved conflict
in medical opinion between Dr. Eisen, appellant’s attending physician, and Dr. Nipper, an OWCP
referral physician, regarding whether she sustained bulging cervical discs and a left shoulder
supraspinatus tear as a result of the accepted January 20, 2015 employment injury.
OWCP accepted that appellant sustained a cervical sprain and a concussion without loss of
consciousness on January 20, 2015 when she was struck by a falling fence. Dr. Eisen, on March 4,
2015, noted that she complained of neck pain radiating into her shoulder, headaches, and dizziness.
She opined that axial compression to the vertebrae of the spine due to blunt force trauma to the
head had resulted in pressure on the discs and cervical bulging discs as demonstrated by MRI scan
study. On August 18, 2015 Dr. Eisen found that a left shoulder MRI scan revealed a full-thickness
distal supraspinatus tear, which she attributed to appellant trying to lift the fence off of her left side
on the date of injury.
By contrast Dr. Nipper, the second opinion physician, opined in reports dated June 7, 2016
and October 3, 2017 that appellant did not sustain a left shoulder condition as a result of the
January 20, 2015 work injury. He further concluded, in his October 3, 2017 report, that her
cervical disc bulges were unrelated to the January 20, 2015 employment injury, but instead
resulted from a degenerative condition.
Both Dr. Eisen and Dr. Nipper provided a description of the employment injury and both
discussed the medical evidence and their physical findings. The Board, therefore, finds that a
conflict in medical opinion exists regarding whether appellant’s bulging cervical discs and left
shoulder supraspinatus tear were causally related to the accepted work injury of
January 20, 2015.10 OWCP regulations provide 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 OWCP medical adviser, OWCP shall appoint a third physician to make an examination.11
The Board will thus remand the case to OWCP for referral to an impartial medical examiner
regarding whether the acceptance of appellant’s claim should be expanded to include bulging
cervical discs and a left shoulder condition.12 Following this and any such further development as
may be deemed necessary, OWCP shall issue a de novo decision.

9

20 C.F.R. § 10.321.

10

See W.B., Docket No. 17-1994 (issued June 8, 2018).

11

5 U.S.C. 8123(a); see also G.K., Docket No. 16-1119 (issued March 16, 2018).

12

See P.S., Docket No. 17-0802 (issued August 18, 2017).

6

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 11, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Frankie Sanders, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1453
Issued: August 4, 2016

Case Submitted on the Record

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

JURISDICTION
On June 25, 2015 appellant, through her representative, filed a timely appeal of a May 6,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed between April 23, 2014, the date of OWCP’s most recent merit
decision, and the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
appellant’s claim.

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 OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).
On appeal appellant’s representative asserts that a conflict existed between the opinion of
her attending physician and OWCP referral physician at the time her benefits were terminated on
November 18, 2012. Appellant is requesting an impartial evaluation.
FACTUAL HISTORY
On September 7, 2011 appellant, then a 57-year-old postal clerk, filed a traumatic injury
claim (Form CA-1) alleging that she was injured when she fell from a chair at work that day.
She stopped work and did not return. OWCP accepted right shoulder sprain and neck sprain
caused by the September 7, 2011 employment injury.3
OWCP continued to develop the claim and in May 2012 referred appellant to Dr. Eric S.
Furie, a Board-certified orthopedic surgeon, for a second opinion evaluation.4 By decision dated
November 8, 2012, it found that the weight of the medical evidence rested with the opinion of
Dr. Furie, and terminated appellant’s wage-loss compensation and medical benefits, effective
November 18, 2012. Following a request for review of the written record, an OWCP hearing
representative affirmed the termination on March 21, 2013.
In a June 19, 2013 decision, OWCP denied appellant’s schedule award claim, and in a
nonmerit decision dated November 20, 2013, denied her reconsideration request of the June 19,
2013 decision.
In a merit decision dated April 23, 2014, OWCP denied modification of the March 21,
2013 decision in which an OWCP hearing representative affirmed the termination of appellant’s
compensation benefits. Appellant retired on disability effective June 25, 2014.
On April 17, 2015 appellant requested reconsideration. In support of her request she
submitted reports from Dr. Zouheir A. Shama, a surgeon, dated July 22 and December 4, 2014.
In his reports, Dr. Shama described physical examination findings and discussed cervical and
right shoulder magnetic resonance imaging (MRI) scan results. He diagnosed multilevel cervical
stenosis and partial tear of right rotator cuff. Dr. Shama opined that appellant’s accepted sprains
3

The record indicates that appellant has additional claims: No. xxxxxx196, accepted for a left knee strain and
torn lateral meniscus that occurred on May 15, 1992; No. xxxxxx636, accepted for lumbar strain and lumbar
subluxation that occurred on February 15, 2001; and an additional claim No xxxxxx128 that was denied. Under
No. xxxxxx636, OWCP terminated appellant’s benefits on June 4, 2012. This was affirmed by an OWCP hearing
representative on January 30, 2013. In merit decisions dated January 31 and November 10, 2014 and July 16, 2015,
OWCP denied modification of the prior decisions.
4

In a June 26, 2012 report, Dr. Furie noted his review of the record and appellant’s complaint of right shoulder
and neck pain. He performed physical examination and diagnosed right rotator cuff tendinosis, cervical
osteoarthritis, cervical stenosis, L5-S1 facet joint arthritis, and chronic right sternoclavicular joint anterior
dislocation. Dr. Furie stated that the only diagnosis related to the September 7, 2011 employment injury was the
rotator cuff tendinosis, for which appellant had no restrictions. He advised that she could perform her usual job.

2

should have been upgraded to include aggravation of her preexisting degenerative disc disease
and to include a rotator cuff injury. He concluded that she continued to have residuals from the
employment injury. Appellant also submitted an unsigned, unidentified physical performance
test that includes no analysis of findings.
In a nonmerit decision dated May 6, 2015, OWCP denied appellant’s reconsideration
request. The decision noted that she did not assert that OWCP erroneously applied or interpreted
a specific point of law or advance a relevant legal argument not previously considered. As to the
evidence submitted, OWCP found that Dr. Shama’s opinion of July 22, 2014 did not provide
arguments not previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.5 Section 10.608(a) of OWCP regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).6 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.7 Section 10.608(b) provides that, when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated May 6, 2015 denying appellant’s application for review.
The merit issue in this case is whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective November 18, 2012. In a merit decision dated
November 8, 2012, it terminated her benefits, effective November 18, 2012. The termination
was affirmed by an OWCP hearing representative on March 21, 2013 and in a merit OWCP
decision on April 23, 2014. Appellant requested reconsideration on April 17, 2015 and
submitted additional medical evidence including a report from Dr. Shama dated July 22, 2014.
The Board finds that, as appellant did not assert that OWCP erroneously applied or
interpreted the law or advance a relevant legal argument not previously considered by OWCP,
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(a).

7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(b).

3

she was not entitled to a review of the merits of her claim based on the first and second abovenoted requirements under section 10.606(b)(3).9
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted additional medical evidence from Dr. Shama. Dr. Shama described physical
examination and MRI scan findings. He diagnosed multilevel cervical stenosis and partial tear
of right rotator cuff. Dr. Shama opined that appellant’s accepted sprains should have been
upgraded to include aggravation of her preexisting degenerative disc disease and to include a
rotator cuff injury. He concluded that she continued to have residuals from the employment
injury.
The Board finds that Dr. Shama’s July 22, 2014 report, which had not previously been
reviewed by OWCP, constitute relevant, and pertinent new evidence in regard to the matter of
whether OWCP properly terminated appellant’s benefits or whether she has any continuing
disability. It is not necessary that the evidence be sufficient to establish the claim, only that it is
new, relevant, and pertinent to the issue presented.10
As appellant submitted pertinent new and relevant evidence on reconsideration that was
not previously considered by OWCP, she is entitled to a review of the merits of her claim under
section 10.606(b)(3) of OWCP regulations.11 The case shall therefore be remanded to OWCP to
consider whether the Dr. Shama’s reports, submitted by her on reconsideration, are sufficient to
require further development. The Board will therefore set aside OWCP’s May 6, 2015 decision.
After this and such further development deemed necessary, OWCP shall issue an appropriate
merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for a merit review
pursuant to section 8128(a) of FECA.

9

Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

10

C.L., Docket No. 14-1904 (issued May 18, 2015).

11

Supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2015 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: August 4, 2016
Washington, DC

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

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

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

5