United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITY ENGINEERING COMMAND,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 07-1118
Issued: November 1, 2007

Case Submitted on the Record

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

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 13, 2007 decision denying his request for a review on the
written record as untimely filed and a November 28, 2006 merit decision denying his claim for
Parkinson’s disease. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained an occupational disease causally related to factors of his employment; and (2) whether
the Office properly denied a request for a review of the written record pursuant to 5 U.S.C.
§ 8124.

FACTUAL HISTORY
On September 27, 2006 appellant, a 57-year-old maintenance supervisor, filed an
occupational disease claim. He alleged manganese-induced Parkinson’s disease caused or
aggravated by his federal employment. Appellant worked in welder positions from 1981 to 1998
mostly in confined spaces such as mechanical rooms, utility rooms and boiler rooms. He first
realized that he was getting symptoms such as right hand tremor, drooling, anxiety, depression,
headaches and cold sweats, in 1998 and 1999. Appellant advised that he was not aware of the
type of disease he had until 2000, when he saw a neurologist. Since 2003, he has been employed
as a supervisor. Appellant attributed his condition to exposure to manganese fumes.
In a letter dated October 17, 2006, the Office asked appellant to provide additional factual
and medical information, including a comprehensive medical report from his treating physician
which contained an explanation of how such exposure or incidents in his federal employment
contributed to his condition.
Appellant submitted a statement describing his welding duties and exposure to heavy
concentrations of welding fumes two to three times a week, four to six hours a day from 1981 to
1998. He also submitted a May 23, 2006 tremor test of his arms.
In a January 9, 2006 discharge summary, Dr. Paul A. Nausieda, a Board-certified
neurologist, noted that appellant was hospitalized for a trial of anti-Parkinson medications to
treat his symptoms related to chronic manganese exposure. He noted that appellant had a history
of extensive welding and exposure to fumes since 1974. In 1998 a tremor developed in
appellant’s right arm, which gradually worsened and caused other symptoms to evolve.
Dr. Nausieda presented his examination findings and provided an impression of Parkinsonian
features and neuropsychological abnormalities. In a February 22, 2006 report, he noted
appellant’s occupational history of extensive fume exposure due to internal pipe welding.
Dr. Nausieda compared the examination findings of December 16, 2005 to an earlier 2002
examination and noted a slow progression of the disease as appellant’s left arm and head were
now involved. A December 16, 2005 accelerometry showed a high-frequency tremor of about
seven hertz in the right hand versus the typical four to five hertz tremor seen in untreated
idiopathic Parkinson’s disease with no discrete frequency distribution noted in the left hand.
Dr. Nausieda noted that laboratory studies during appellant’s January 9, 2006 hospitalization
showed elevated serum manganese levels on two separate determinations, in the absence of other
laboratory abnormalities. He concluded that appellant remained Parkinsonian, with mild rightsided bradykinesia with a resting, postural and action tremor component. Dr. Nausieda stated
that his examination showed clear signs of Parkinsonism with an atypical action tremor and
bilateral distribution with a limited and unsustained response to medication. He opined that
appellant’s symptoms were consistent with manganese-induced Parkinsonism, noting that
appellant’s neuropsychiatric, autonomic and motor complaints were consistent with this disorder.
Dr. Nausieda indicated that examination findings suggested a slowly progressive disease process.
Copies of treatment notes dated December 10, 2005 to May 12, 2006 were provided.
In a January 31, 2006 report, Dr. Jorge E. Mendizabal, a Board-certified neurologist,
noted that appellant worked as a welder for 20 years until 1999. Appellant presented with a fiveyear history of tremor and rigidity, predominantly involving his right side. Dr. Mendizabal noted

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that appellant had a history of welding and exposure to manganese fumes. He stated that at some
point appellant’s blood manganese levels were obtained and were elevated. Dr. Mendizabal
reported examination findings and opined that appellant had Parkinsonism with a possible
manganese fume exposure. He explained that, due to a lack of access to appellant’s records, he
had no objective evidence of whether a magnetic resonance imaging (MRI) scan showed basal
ganglia abnormalities on T1 sequence or whether appellant’s manganese levels were elevated to
a toxic range.
In a September 28, 2006 statement, Donald Taylor, production division director, agreed
with appellant’s statement of work activities and his exposure to manganese during welding
work performed. In a report conducted by Materials Analysis Services, Inc., it was found that
appellant was exposed to significant amounts of manganese from the welding jobs he performed.
By decision dated November 28, 2006, the Office denied appellant’s claim on the
grounds that the medical evidence was insufficient to establish that his Parkinson’s condition
was caused or aggravated by his federal employment.
On December 15, 2006 the Office received additional material from the employing
establishment.1 On January 5, 2007 appellant requested a review of the written record. He
advised that he did make an earlier request as he had been out of town.
By decision dated February 13, 2007, the Office denied appellant’s request for a review
of the written record, finding that it was not made within 30 days of the November 28, 2006
decision. The Branch of Hearings and Review further denied the request finding that the issue
could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.4

1

This included occupational surveillance and certification physical examinations dated March 12, 1998 to
August 4, 2004; Occupational Safety and Health Administration Respirator medical evaluation questionnaires dated
February 6, 2001 to November 25, 2002; navy air sampling result summaries for welding/cutting/brazing operations
performed by welding shop employees at the employing establishment; and an Associated Press article of
June 27, 2006.
2

5 U.S.C. §§ 8101-8193.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

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To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.8 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,9 must be one of reasonable medical certainty10 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.11 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.12
ANALYSIS -- ISSUE 1
The record supports that appellant was exposed to manganese during his work as a
welder. The Board finds however that there is insufficient medical evidence to support that his
claimed condition was caused or aggravated by his employment.
Dr. Nausieda noted appellant’s occupational history of exposure to welding fumes since
1974 and that his initial symptoms appeared in 1998. In a February 22, 2006 report, he
diagnosed manganese-induced Parkinsonism based on a comparison of examination findings
from 2002 and 2005, a December 16, 2005 accelerometry and laboratory studies during
appellant’s January 9, 2006 hospitalization which showed evaluated serum manganese levels.
While Dr. Nausieda was aware of appellant’s occupational history, he did not specifically
explain how appellant’s Parkinsonism was caused or contributed to by the history of exposure to
fumes. The Board has long held that medical evidence which does not offer any opinion
5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

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

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

Charles E. Evans, 48 ECAB 692 (1997).

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regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.13 The Board finds that this evidence is insufficient to establish appellant’s
claim.
Dr. Mendizabal also noted an occupational history of 20 years of welding experience and
being exposed to manganese fumes. In a January 31, 2006 report, he diagnosed Parkinsonism
with a possible exposure to manganese fumes, noting that he did not have access to appellant’s
records to verify the objective medical evidence of record. Dr. Mendizabal did not address
causal relationship between the accepted employment factors and appellant’s diagnosed
condition. His report acknowledged that it was not based on a full medical history or record
review. Dr. Mendizabal’s report is insufficient to establish appellant’s claim as he failed to offer
an opinion regarding the cause of appellant’s condition.14
Appellant did not submit adequate medical evidence addressing causal relationship. The
Board finds that there is insufficient rationalized medical evidence of record to establish that
appellant sustained an occupational disease causally related to factors of his employment. He
failed to meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant for compensation not satisfied
with a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.15
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.16 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.17
ANALYSIS -- ISSUE 2
In a November 28, 2006 decision, the Office denied appellant’s claim. Appellant’s letter
requesting a review of the written record was dated January 5, 2007, more than 30 days after the
November 28, 2006 decision. Thus, the Office properly found that appellant’s hearing request
was not timely filed under section 8124(b)(1) of the Act and that he was not entitled to a review
of the written record as a matter of right.

13

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

14

Id.

15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. §§ 10.616, 10.617.

17

Claudio Vasquez, 52 ECAB 496 (2002).

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The Office then exercised its discretion and determined that appellant’s request for a
hearing could equally well be addressed by requesting reconsideration and submitting additional
evidence establishing that the claimed occupational disease was causally related to his federal
employment. As the only limitation on the Office’s authority is reasonableness, abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from known
facts.18 The Board finds that there is no evidence of record that the Office abused its discretion
in denying appellant’s request. Thus, the Board finds that the Office’s denial of appellant’s
request for a review of the written record was proper under the law and the facts of this case.
CONCLUSION
As appellant did not provide the necessary medical evidence to establish that he sustained
an occupational disease causally related to factors of his employment, he has failed to meet his
burden of proof. The Board additionally finds that the Office properly denied appellant’s request
for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the February 13, 2007 and November 28, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

18

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINSTRATION, Orlando, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1032
Issued: March 4, 2013

Case Submitted on the Record

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

JURISDICTION
On April 16, 2012 appellant, through her representative, filed a timely appeal from a
February 29, 2012 Office of Workers’ Compensation Programs’ (OWCP) decision denying her
claim for an employment-related injury. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
back and lower body conditions in the performance of duty on June 28, 2011, as alleged.
On appeal, appellant’s representative contends that appellant’s injuries were not merely
caused by walking from one end of a terminal to another, but other job duties, such as screening
checkpoints and assisting passengers, which required lifting her hands above her head, lifting
1

5 U.S.C. § 8101 et seq.

5 to 20 pounds in violation of her 10-pound restriction and standing for long periods of time. He
further contends that her June 28, 2011 injuries are an aggravation of her previous injuries from
2007 and 2010.
FACTUAL HISTORY
On July 16, 2011 appellant, then a 45-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that she sustained injuries to her low back,
buttocks, hips and both legs and feet while walking in the performance of duty on June 28, 2011.
By letter dated July 22, 2011, OWCP requested additional factual and medical evidence.
It allotted appellant 30 days to submit additional evidence and respond to its inquiries.
In a July 6, 2011 statement, appellant related that her injury occurred while she was
walking from one duty station to another. Her supervisor asked her to walk faster in order to
relieve her coworkers. Appellant explained that she could not walk any faster and experienced
pain in her back, buttocks, hips, upper and lower legs and feet. She was assigned to sit at an exit
lane where she remained until it was time for her to go home at 6:00 p.m. Appellant was asked
to stay late but excused herself as she needed to seek relief from the pain.
In a July 18, 2011 attending physician’s report, Dr. William Neese, an osteopath Boardcertified in family medicine, diagnosed herniated nucleus pulposus (HNP) at L4-5 and L5-S1, a
cyst at S3 and neuralgia in both lower extremities. He reported that appellant had acute back and
leg pain while walking fast from one section to another at the employing establishment on
June 28, 2011. Dr. Neese opined that she was totally disabled commencing June 29, 2011.
On July 27, 2011 appellant submitted a second narrative statement indicating that her
light-duty restrictions included alternate sitting and standing every 20 minutes and no lifting,
pushing or pulling over 10 pounds, no lifting over the shoulder and no repetitive lifting. Her job
required an extensive amount of walking, standing and pushing items weighing 5 to 40 pounds
through an x-ray machine, which violated her medical restrictions. Appellant also submitted
chiropractic notes dated July 28 to August 16, 2011.
By decision dated August 29, 2011, OWCP denied appellant’s claim finding that the
evidence submitted was insufficient to establish a causal relationship between the diagnosed
conditions and the June 28, 2011 employment incident. It noted that she had two previous
claims which were accepted for lumbar disc displacement2 and lumbar neuritis.3 Appellant’s
current diagnoses of herniated lumbar discs at L4-S1 were basically the same as those currently
accepted in her two open and active cases.
On September 1, 2011 appellant, through her representative, requested an oral hearing
before an OWCP hearing representative. She submitted reports by Dr. Neese dated July 18,
August 8 and 22, 2011. Dr. Neese reviewed a nerve conduction study on the lower extremities
2

OWCP File No. xxxxxx512.

3

OWCP File No. xxxxxx269.

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and found radiculopathy of the left L5 nerve root. He diagnosed lumbar disc syndrome, lumbar
sprain and strain, radiculopathy of the left and right lower extremities, nerve root impingement at
S1 in the left lower extremity and reiterated his diagnoses of right S3 cyst and HNP at L4-5 and
L5-S1. Dr. Neese opined that appellant’s condition was a result of her injury while working at
the employing establishment.
A hearing was held before an OWCP hearing representative on December 15, 2011.
Appellant provided testimony and the hearing representative held the case open for 30 days for
the submission of additional evidence. She submitted reports dated December 16, 2010 to
February 2, 2012 by Dr. Robert L. Murrah, Jr., a Board-certified orthopedic surgeon, for
treatment of her February 17, 2010 employment injury.
In a December 5, 2011 report, Dr. James R. Shelburne, an osteopath Board-certified in
family medicine, diagnosed disc protrusions at L4-5 and L5-S1, lumbar disc syndrome, chronic
lumbosacral sprain/strain, bilateral lower extremity radiculopathy and cyst on the right S3 nerve
root. He opined that appellant’s condition was due to the June 28, 2011 aggravation of her
preexisting employment injury of 2010.
On October 13, 2011 Dr. Samy F. Bishai, an orthopedic surgeon, diagnosed lumbar disc
syndrome, radiculopathy both legs, more so on the right side, chronic lumbosacral strain, disc
protrusions at L4-5 and L5-S1 and perineural cyst involving the right S3 nerve root. He opined
that the June 28, 2011 injury seemed to have been an aggravation of the preexisting condition of
2010 where there was an established case of herniated disc and radiculopathy. Dr. Bishai
indicated that the type of work appellant did made it very easy for these exacerbations or
aggravations to occur constantly and frequently and resulted in worsening of her conditions. On
December 20, 2011 he reiterated his diagnoses and his medical opinions. Dr. Bishai indicated
that the work duties that aggravated appellant’s 2010 injury were walking for long distances or
for long periods of time and lifting bags weighing anywhere from 5 to 20 pounds, while she had
a restriction of lifting up to only 10 pounds.
By decision dated February 29, 2012, an OWCP hearing representative affirmed the
August 29, 2011 decision finding that the evidence submitted failed to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury5 was sustained in the performance of duty, as alleged
4

5 U.S.C. §§ 8101-8193.

5

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).

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and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.7
Causal relationship is a medical issue 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 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.8
ANALYSIS
The Board finds this case is not in posture for decision.
In its August 29, 2011 decision, OWCP denied appellant’s claim on the basis that the
evidence submitted was insufficient to establish causal relationship between the diagnosed
conditions and the June 28, 2011 employment incident. It noted that she had two previous
claims which were accepted for lumbar disc displacement and lumbar neuritis. OWCP found
that appellant’s current diagnoses of herniated lumbar discs at L4-S1 were essentially identical to
those already accepted under OWCP File Nos. xxxxxx512 and xxxxxx269. By decision dated
February 29, 2012, an OWCP hearing representative affirmed the August 29, 2011 decision
finding that the evidence submitted failed to establish causal relationship.
Decisions of OWCP shall contain findings of fact and a statement of reasons.9 The Board
finds that the basis on which OWCP denied appellant’s claim is unclear. The Board is unable to
render an informed decision in this case. The record is not complete on whether OWCP
adjudicated the claim as a new traumatic injury or occupational disease, or as a recurrence of an
accepted condition. Consequently, the case will be remanded for OWCP to combine the current
case record with OWCP File Nos. xxxxxx512 and xxxxxx269. Therefore, it should adjudicate
the issue of whether appellant met her burden of proof to establish that she sustained a back or
6

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
7

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

8

Id. See Gary J. Watling, 52 ECAB 278 (2001).

9

See 20 C.F.R. § 10.126.

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lower body condition in the performance of duty on June 28, 2011; or whether she sustained an
occupational disease or a recurrence of a previously accepted condition(s).10 Following this and
such other development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 29, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: March 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8
(February 2000). Under 2.400.8(c), cases should be doubled when correct adjudication of the issues depends on
frequent cross-reference between files, including: (1) a new injury case is reported for an employee who previously
filed an injury claim for a similar condition or the same part of the body. For instance, a claimant with an existing
case for a back strain submits a new claim for a herniated lumbar disc; (2) two or more separate injuries (not
recurrences) have occurred on the same date; and (3) adjudication or other processing will require frequent reference
to a case which does not involve a similar condition or the same part of the body. For instance, an employee with an
existing claim for carpal tunnel syndrome files a new claim for a mental condition which has overlapping periods of
disability.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Summit, NJ, Employer
__________________________________________

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

Docket No. 18-0028
Issued: April 13, 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 October 3, 2017 appellant filed a timely appeal from a June 13, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that the acceptance of his claim should be
expanded to include additional right knee conditions causally related to his February 9, 2017
employment injury.

1
The Board notes that appellant submitted additional evidence after OWCP rendered its June 13, 2017
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 16, 2017 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 9, 2017 he injured his right knee and both shoulders
when he slipped going down stairs while in the performance of duty. He stopped work the next
day, on February 10, 2017, and resumed full-time limited-duty employment on February 28, 2017.
OWCP accepted the claim for a right knee contusion and right knee sprain.
A February 9, 2017 emergency room discharge summary indicated that appellant received
treatment on that date for right knee sprain and a bilateral shoulder injury.
In a February 17, 2017 duty status report (Form CA-17), an internal medicine physician
diagnosed a contusion of the shoulders and knee.3 He indicated that appellant could not work.
Dr. Clifford Schob, a Board-certified orthopedic surgeon, evaluated appellant on
February 27, 2017 for right knee pain that began after he slipped in snow going down stairs on
February 9, 2017, striking the lateral aspect of his right knee. He received treatment at the
emergency room on February 9, 2017 and was placed in a knee immobilizer and given a sling.
Dr. Schob noted that appellant had a history of preexisting right shoulder problems and currently
experienced constant right shoulder pain. He reviewed right knee x-rays obtained at the emergency
room that were negative for fractures. Dr. Schob diagnosed right knee pain, a contusion of the
right knee, and per anserinus and prepatellar bursitis of the right knee. He referred appellant for a
magnetic resonance imaging (MRI) scan study of the right knee.
A March 16, 2017 right knee MRI scan study revealed an irregular degenerative tear of the
lateral meniscus with lateral compartmental osteoarthritis, a horizontal tear of the medial meniscus
with a radial component and slight medial compartmental arthritis, a popliteal cyst, and small joint
effusion.
On March 21, 2017 Dr. Schob reviewed the results of the MRI scan study and discussed
appellant’s complaints of continued right knee pain. On examination he found no effusion or
instability, but tenderness to palpation at the prepatella bursae and lateral joint line. For the right
knee, Dr. Schob diagnosed pain, a contusion, a lateral meniscus tear, osteoarthritis, resolving
prepatellar bursitis, and resolving pes anserinus bursitis. He noted that the MRI scan study
confirmed “preexisting lateral compartment arthrosis with degenerative lateral meniscal tear
(posterior horn and body)” and medial compartment degenerative changes. Dr. Schob further
indicated that appellant had a preexisting right shoulder injury treated with surgery with apparently
no “significant shoulder injury as a result of his fall.”
An unsigned February 9, 2017 emergency room report, received by OWCP on March 21,
2017, indicated that appellant received treatment on that date from Dr. Helmi Saud, an osteopath.
The emergency room report provided a history of him falling onto his right side and hitting his
right shoulder and right knee against the railing when he slipped on stairs. Appellant was
discharged with a diagnosis of a right knee sprain and bilateral shoulder injury.

3

The name of the physician is illegible.

2

Dr. Schob, in an April 17, 2017 progress report, evaluated appellant for continued right
knee pain. On examination he found tenderness at the lateral joint line and a trace of effusion with
good stability and normal lower extremity sensation. Dr. Schob diagnosed right knee pain, a right
knee contusion, right knee osteoarthritis, and tears of the right lateral and medial meniscus. He
recommended a right knee partial medial and lateral meniscectomy.
On May 10, 2017 Dr. James Lee, Sr., an orthopedic surgeon, evaluated appellant for pain
in the right shoulder and right knee for which he claimed he suffered for the last month. He
obtained a history of appellant falling and twisting his right knee around February 9, 2017. Dr. Lee
diagnosed a current injury of a bucket-handle tear of the lateral meniscus of the right knee, a current
injury of a complex medial meniscus tear of the left knee,4 and right knee chondromalacia patellae.
He recommended surgery.
By decision dated June 13, 2017, OWCP denied expansion of the acceptance of appellant’s
claim to include the additional right knee conditions of a bucket-handle tear of the lateral meniscus,
chondromalacia patellae, pes anserinus bursitis, prepatellar bursitis, a lateral meniscus tear,
osteoarthritis, a medial meniscus tear, and a complex tear of the medial meniscus.5 It found that
he had not submitted rationalized medical evidence addressing how the February 9, 2017
employment injury caused or contributed to the diagnosed conditions.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury.6
To establish a causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such a causal
relationship.7 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.8 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.9

4

It appears based on a review of his report that Dr. Lee meant a complex tear of the lateral meniscus of the right
rather than left knee.
5

OWCP referred to the complex tear as a left medial meniscus tear rather than a right medial meniscus tear.

6

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

8

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

9

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

3

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 aggravate by employment
factors or incidents is sufficient to establish causal relationship.10
ANALYSIS
OWCP accepted that appellant sustained a contusion and sprain of the right knee due to a
February 9, 2017 slip and fall employment injury. It denied expansion of the acceptance of his
claim to include the right knee conditions of a bucket-handle tear of the lateral meniscus,
chondromalacia patellae, pes anserinus bursitis, prepatellar bursitis, a lateral meniscus tear,
osteoarthritis, a medial meniscus tear, and a complex tear of the medial meniscus. The Board finds
that appellant has not met his burden of proof to establish that the additional claimed conditions
were causally related to the accepted employment injury.
The opinion of a physician supporting causal relationship must be based on a complete
factual and medical background, contain affirmative evidence, address the specific factual and
medical evidence of record, and provide medical rationale explaining the nature of the relationship
between the diagnosed condition and the established work incident or factor of employment.11
A February 9, 2017 emergency room report provided the history of the February 9, 2017
employment injury and listed diagnoses of a right knee sprain and a bilateral shoulder injury. The
report, however, failed to relate any additional right knee condition to the accepted work injury,
and thus is of diminished probative value.
A physician of internal medicine, in a February 17, 2017 CA-17 form, diagnosed a
contusion of the shoulders and knee and found that appellant was disabled. However, as the report
contained an illegible signature, it is of no probative value as the author cannot be identified as a
physician.12
On February 27, 2017 Dr. Schob obtained a history of appellant slipping on stairs on
February 9, 2017 striking his right knee. He noted that he also had a history of prior right shoulder
surgeries. Dr. Schob diagnosed right knee pain, a right knee contusion, and per anserinus bursitis
and prepatellar bursitis of the right knee. He did not, however, specifically relate the diagnosed
conditions to the February 9, 2017 employment injury. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.13
Dr. Schob, on March 21, 2017, reviewed the results of the MRI scan study and diagnosed
right knee pain, a right knee contusion, a right lateral meniscus tear, right osteoarthritis, and
resolving right prepatellar and pes anserinus bursitis. He noted that the MRI scan study showed
10

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

11

See M.R., Docket No. 17-1154 (issued January 10, 2018); Robert Broome, 55 ECAB 339 (2004).

12

See L.D., Docket No. 17-1808 (issued December 28, 2017); Merton J. Sills, 39 ECAB 572, 575 (1988).

13

See M.S., Docket No. 17-0105 (issued December 7, 2017); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

preexisting lateral compartment arthrosis and a degenerative lateral meniscal tear and degenerative
changes in the medial compartment. Dr. Schob also indicated that appellant had a preexisting
history of a right shoulder injury and opined that he did not believe that he appreciably injured his
shoulder when he fell. On April 17, 2017 he diagnosed right knee pain, a contusion, osteoarthritis,
a lateral meniscus tear, and a medial meniscus tear and recommended a partial medial and lateral
meniscectomy. Dr. Schob did not, however, address the causal nature of the diagnosed right knee
conditions. Without a specific causation finding and an explanation regarding how the February 9,
2017 employment-related fall caused or aggravated the additional diagnosed right knee conditions,
his opinion is of little probative value.14
On May 10, 2017 Dr. Lee discussed appellant’s history of twisting his right knee on
February 9, 2017 after a fall with complaints of locking and swelling of the right knee. He
diagnosed a bucket-handle tear of the right lateral meniscus, a complex medial meniscus tear, and
right knee chondromalacia patellae. Dr. Lee, while providing a history of the February 9, 2017
work injury, did not address the cause of the right knee conditions he had diagnosed, and thus his
opinion is insufficient to meet appellant’s burden of proof.15
On appeal appellant contends that both Dr. Schob and Dr. Lee found that he needed
surgery, and that he sent additional evidence from these physicians to the Board. As noted,
however, the Board cannot consider new evidence for the first time on appeal.16 Appellant may
submit new evidence or argument with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that the acceptance of his claim should
be expanded to include additional right knee conditions causally related to his February 9, 2017
employment injury.

14

See M.R., supra note 11.

15

See Willie M. Miller, 53 ECAB 697 (2002).

16

See 20 C.F.R. § 501.2(c)(1).

5

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 13, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 14-1176
Issued: October 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 21, 2014 appellant, through counsel, filed a timely appeal from a December 3,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) which
terminated her compensation benefits on the grounds that she had refused an offer of suitable
employment. 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 OWCP properly terminated appellant’s wage-loss compensation
under 5 U.S.C. § 8106(c) for refusal of suitable work.
On appeal, appellant’s counsel contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 18, 2011 appellant, then a 36-year-old letter carrier, filed a traumatic injury
claim alleging that she awoke on May 5, 2011 with severe pain throughout her back. She noted
that, on the prior day, she carried heavy bulk mail up and down steps throughout her route.
Although OWCP initially denied appellant’s claim, pursuant to the November 8, 2002 decision
of the hearing representative, it accepted her claim for resolved lumbar strain. It later accepted
her claim for sprain of lumbar region of the back and displacement of lumbar intervertebral disc
without myelopathy. Appellant stopped work on November 6, 2003 and returned to a modified
position on January 7, 2004. However, under the National Reassessment Program (NRP), her
limited-duty assignment was eliminated and she refused an offer of a different assignment, so
she was sent home on September 17, 2010. Appellant received total disability compensation
beginning September 17, 2010. She has refused all subsequent offers of employment by the
employing establishment, contending that the positions exceeded her work capacity.
In a November 21, 2011 report, Dr. Charles Bonner, appellant’s treating Board-certified
physiatrist, diagnosed appellant with lumbago and displacement of lumbar intervertebral disc
without myelopathy. In an accompanying work capacity evaluation, he limited her daily
employment activities to six hours of sitting, walking, standing, squatting, kneeling and reaching
above the left shoulder and four hours of bending, stooping and twisting. Dr. Bonner limited
appellant to pushing, pulling and lifting more than 20 pounds. He prohibited reaching above the
shoulder with the right arm and climbing stairs.
On July 5, 2012 the employing establishment made an offer of modified assignment
(limited duty) for a position as a city letter carrier. The duties of the assignment were delivery of
park and loop route (flat) for up to six hours, delivery of curbside route for up to six hours
delivery of Neighborhood Delivery and Collection Box Unit (NDCBU) route for up to six hours,
and afternoon office/administrative carrier duties for up to five minutes. The physical
requirements of the modified assignment were sitting, walking, standing and reaching above left
shoulder up to six hours; twisting and bending/stooping up to four hours, pushing/pulling/lifting
limited to 20 pounds and no reaching above right shoulder or climbing stairs. In a July 6, 2012
letter to appellant, the employing establishment noted that the job offered was based upon the
information provided by appellant’s treating physician on a November 21, 2011 form.
By letter dated July 25, 2012, OWCP informed appellant that the position offered by the
employing establishment of modified city letter carrier was found to be within her work
capabilities. It informed appellant that she had 30 days from the date of the letter to either accept
the position or provide an explanation of the reasons for refusing it.
By letter dated August 14, 2012, appellant contended that the job assignment was based
on outdated medical information, that all her medical information should be used and that the
requirements of the modified job assignment are outside of her medical limitations. She
contended that she requested reasonable accommodations under the American with Disabilities
Act (ADA), and engagement in an interactive process.

2

In a decision dated September 20, 2012, OWCP determined that appellant’s reasons for
refusing the position were unacceptable. It gave appellant a period of 15 additional days to
accept the position.
By letter dated October 2, 2012, appellant contended that OWCP did not consider all of
her medical conditions when it determined that she could perform the position. She attached an
October 2, 2012 note from her physician, Dr. Bonner, indicating that she was unable to perform
her usual employment as a carrier. Appellant also submitted a work capacity evaluation wherein
Dr. Bonner limited appellant to four hours of sitting, standing, operating a motor vehicle at work,
squatting, kneeling, climbing and pushing/pulling/lifting up to 20 pounds. Dr. Bonner limited
appellant to six hours of walking, repetitive movements with her wrist and elbow and prohibited
reaching above the shoulder and twisting. He indicated that bending/stooping were limited to
one hour a day. Dr. Bonner concluded that appellant was unable to perform her carrier duties.
In a November 26, 2012 report, he indicated that on examination on November 5, 2012 appellant
ambulated with a cane, was slow to sit and stand and had mildly antalgic behavior. Dr. Bonner
noted that appellant injured her back at work on May 4, 2011 and has causally-related diagnoses
of lumbago, chronic pain syndrome, myalgia and displacement of lumbar intervertebral disc. He
noted that these diagnoses were the direct sequelae of employment-related injury. Dr. Bonner
opined that the effects of the employment injury had not ceased and her prognosis was guarded.
He opined that appellant was unable to perform her usual job, and he anticipated that she will be
unable to return to her previous employment without work hardening.
On January 2, 2013 the employing establishment made appellant an offer of modified
assignment (limited duty) as a city letter carrier. The position required appellant to do
NDCBU/DBU delivery for two hours, park and loop delivery for two hours and curbside
delivery for one hour. The physical requirements of the modified assignment were sitting,
walking, standing, carrying and lifting up to 20 pounds for 1 to 2.5 hours (60-minute intervals).
By letter dated February 7, 2013, OWCP advised appellant that the position of city letter
carrier with the employing establishment was found suitable and within her restrictions, and that
she had 30 days to accept the position or offer reasons for refusing it.
In a February 8, 2013 letter, Dr. Bonner indicated that appellant had been under his care
for treatment of her employment-related injury. He opined that her accepted condition of
displacement of lumbar intervertebral disc without myelopathy is causative of her radiculitis,
which constitutes nerve root inflammation and irritation secondary to her discopathy, and that
therefore her sciatica is causally related to her employment injury. Dr. Bonner noted that
appellant’s required physical therapy was a medically-necessary treatment of this injury two to
three times a week. In a February 27, 2013 letter, he stated that she suffered an employmentrelated injury on May 4, 2001 and that, as a result of this injury, she is unable to perform the
duties of her previous job. Dr. Bonner noted that appellant has had extensive evaluations and
functional capacity evaluations which reveal that the job of letter carrier is beyond her functional
capacity and would risk her further injury. He concluded that, due to her employment-related
injury to her back and her reduced functional capacities as documented in evaluations, appellant
was unable to return to the position of letter carrier.

3

By decision dated March 13, 2013, OWCP found that appellant’s reasons for refusing the
position were unacceptable and allowed her 15 additional days to accept the position. It noted
that, if they did not receive a written response within 15 days of the letter, or if appellant’s
response is that she continues to refuse the offer, OWCP will proceed with a final decision in this
matter. OWCP noted that they would consider no further reasons for refusal.
By decision dated March 28, 2013, OWCP terminated appellant’s wage-loss and
schedule award benefits because she failed to accept suitable employment.
In a March 28, 2013 letter to OWCP, Dr. Bonner stated that he performed a functional
capacity evaluation and used the Department of Labor, Dictionary of Occupational Titles (DOT)
to determine the functional requirements of the job of letter carrier. He noted that the job of
letter carrier requires lifting 50 pounds occasionally up to one-third of the day, and that therefore
appellant was clearly unable to perform the job. Dr. Bonner then noted that the offer of modified
assignment only required sitting 60-minute intervals for up to 2.5 hours per day and walking and
standing up to 2.5 hours per day.
On April 16, 2013 appellant requested an oral hearing before an OWCP hearing
representative. At the hearing held on September 12, 2013, she stated that the employing
establishment continued to offer her jobs that were outside her functional capacity. Appellant
argued that her doctor has not cleared her to perform the position offered by the employing
establishment. She contended, inter alia, that she had to use a cane and could not deliver mail
using the cane, that OWCP did not consider all medical conditions and that the job description
was inaccurate. In an October 11, 2013 letter, appellant contended that the modified letter carrier
duty exceeded her functional capabilities as stated by her doctor, that her condition has worsened
since the date of injury of May 4, 2011 and that her medical report stipulates that she required a
cane to walk. Appellant contended that the offered position required her to exceed her
restrictions set by her physician in that she would be required to work above her shoulders, bend
to retrieve mail, lift tubs weighing more than 20 pounds and perform curbside delivery that
would require her to twist her body.
In an October 11, 2013 letter, Dr. Bonner indicated that appellant has been under his
medical care since her on-the-job injury of May 4, 2011, that he reviewed the modified job offer
of January 5, 2012, and that it was his professional opinion that appellant was unable to perform
her duty as a modified letter carrier. He noted that he had outlined limitations in his functional
capacity reports, and that appellant had limitations in walking, carrying, lifting, twisting, bending
and reaching above her shoulders. Dr. Bonner opined that the modified job assignment was
outside of these functional capacities. He noted that appellant did have functional capacity for
light work with alternating sitting, standing, walking, carrying, lifting, bending and reaching.
By decision dated December 3, 2013, OWCP’s hearing representative affirmed OWCP’s
decision.

4

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 Section 8106(c)(2) of FECA provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.3 OWCP may not terminate
compensation without establishing that the disability ceased or that it is no longer related to the
employment.4 The Board has stated that monetary compensation payable to an employee under
section 8107 are payments made from the Employees’ Compensation Fund and are, therefore,
subject to provision of section 8106(c).5
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refused to work after suitable work has been offered to or secured for the employee has the
burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant to
section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
ANALYSIS
OWCP accepted appellant’s claim for sprain of the back and displacement of lumbar
intervertebral disc without myelopathy. On March 28, 2013 it terminated appellant’s
compensation benefits as it found that she refused a suitable position with the employing
establishment as a modified carrier.
The position of the modified carrier, as proposed by the employing establishment,
involved NDCBU/DBU delivery for two hours, park and loop delivery for two hours and
curbside delivery for one hour. The physical requirements of the position were modified so
sitting, walking, standing, carrying and lifting up to 20 pounds would be accomplished in 60minute intervals for between 1 to 2.5 hours. This position was within the physical restrictions set
by Dr. Bonner. In an October 2, 2012 work capacity evaluation, Dr. Bonner limited appellant to
walking and performing repetitive movements with her wrist and elbows to six hours; sitting,
standing, squatting, kneeling, climbing and pushing/pulling/lifting of 20 pounds to four hours;
and bending and stooping to one hour. He prohibited her from reaching above her shoulder. The
position proposed by the employing establishment was clearly within these restrictions.
Dr. Bonner, in several reports, indicated that appellant could not perform her usual employment
2

Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995); see also M.B., Docket No.
12-728 (issued September 26, 2012).
3

5 U.S.C. § 8106(c)(2); see also Linda D. Guerro, 54 ECAB 556 (2003).

4

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

5

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

6

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 4.

7

Id. at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

5

as a letter carrier, and stated that he checked the position in the DOT and noted that the
requirements of a letter carrier involved such activities as lifting 50 pounds which appellant
could not do. However, the position offered was a position as a modified carrier, and the
employing establishment clearly described a number of limitations on appellant’s required
activities. Although in his October 11, 2013 letter Dr. Bonner did specifically indicate that
appellant could not perform the duty of a modified letter carrier, he did not provide a rationalized
opinion as to why she was unable to perform the duties of this position despite the fact that the
limitations he provided in earlier medical opinions were being accommodated in the description
of the proposed position.
Appellant continues to maintain that the modified position would actually require her to
exceed her work restrictions as set by Dr. Bonner. However, there is absolutely no evidence that
appellant would be required to exceed her restrictions. Appellant makes certain allegations as to
her limitations that are not supported by the evidence of record. For example, there is no
medical report that indicates that appellant must walk with a cane. Although some twisting,
bending and stooping are required by the proposed position, there is no evidence that her
physician prohibited these activities. Rather, Dr. Bonner simply imposed restrictions as to the
amount of time appellant could engage in each of these activities.
Accordingly, after reviewing the evidence of record, the Board finds that the position
offered was medically and vocationally suitable and OWCP complied with the procedural
requirements of section 8106(c) of FECA. OWCP met its burden of proof to terminate
appellant’s compensation benefits based on her refusal to accept suitable work.8
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
under 5 U.S.C. § 8106(c) for refusal of suitable work.

8

Roy E. Bankston, 38 ECAB 380 (1987).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 3, 2013 is affirmed.
Issued: October 27, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
U.S. POSTAL SERVICE, BERGER POST
OFFICE, Jersey City, NJ, Employer
__________________________________________

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Appearances:
Donald J. Millman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-824
Issued: November 10, 2009

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 February 6, 2009 appellant, through his attorney, filed a timely appeal of the
December 23, 2008 decision of an Office of Workers’ Compensation Programs’ hearing
representative who found an overpayment of compensation for which he was not without fault.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant forfeited his compensation benefits for the period
October 31, 2004 to May 15, 2006 as he had unreported income; (2) whether he received an
overpayment in the amount of $44,099.24 for this period; (3) whether the Office properly found
that appellant was at fault in the creation of the overpayment; and (4) whether the Office
properly determined the repayment schedule.
FACTUAL HISTORY
On May 30, 2000 appellant, then a 49-year-old city carrier, filed a recurrence of disability
claim alleging that on April 3, 2000 he sustained a recurrence of his October 2, 1995

employment injury of back pain. The Office accepted his claim for aggravation of degenerative
disc disease on October 26, 2000.
It accepted a recurrence of disability claim on
November 6, 2000 and entered appellant on the periodic rolls as of June 4, 2001.
Appellant completed a Form EN1032 on March 24, 2003 and represented that he
performed no work for an employer, no self-employment or business enterprise and that he was
unemployed for the 15 months covered by the form. He completed a second EN1032 on
January 28, 2006 and advised that he did not work for an employer, was not self-employed or
involved in any business enterprise and that he did not perform any volunteer work for which
any form of monetary or in-kind compensation was received. Appellant completed an EN1032
on May 7, 2006 in the same manner. The Form CA-1032’s which accompanied these documents
stated: “This statement covers the 15 months prior to the date you complete and sign the form.
Your signature at the end of the statement certifies that you have supplied all information
requested for that period of time.”
On March 12, 2007 appellant completed an EN1032, again noting that he did not work
for an employer during the past 15 months. He was self-employed or involved in a business
enterprise from September 2005 through 2006 in that he helped do paperwork and books for a
daycare center as a volunteer. Appellant shared supervision, helped open and close the center
and was not paid. He stated that he did not perform volunteer work for which any form of
monetary or in-kind compensation was received. Appellant volunteered at a daycare center from
September 2005 through the present and that he worked four or five days. Appellant described
his activities as “mostly hanging out” as well as “books, supervision, open up-close.”
By letter dated June 6, 2007, the Office requested additional information from appellant
regarding his self-employment as a volunteer in a daycare center. On June 12, 2007 appellant
stated that the school was the Chistina Nicole Academy and that he helped as a friend. He
opened the school in the morning along with one teacher, watched the children play and provided
them with cereal. Appellant helped with snack time and supervised outside playtime. He placed
the mats for naptime and when nap ended again served snack. Appellant would linger about for
the rest of the day and put out the garbage at closing. He collected fees from parents at the
beginning of the month and registered these payments in the accounting books. Appellant listed
his schedule as from seven o’clock a.m. until five or six o’clock p.m. five days a week. He
stated that he did not receive wages as “I know I can’t be paid.” Appellant performed the
activities as a favor to Gail Cartisano.
In a letter dated December 18, 2007, the employing establishment inspector general
found that from September 2005 through April 2007 appellant was employed full time as the
office manager for Christina Nicole Daycare and Pre-School Academy. Appellant was observed
opening and closing the center, greeting parents, supervising children, sweeping, removing
garbage and carrying children for 10 to 12 hours a day. Investigators telephoned the center and
appellant identified himself as the office manager. On February 26, 2007 investigators
interviewed appellant, who advised that his girlfriend, Ms. Cartisano, was the director of the
center and that he was not paid for his work. Ms. Cartisano confirmed that appellant volunteered
and was not paid for his work. However, she acknowledged that without his help she would
have to hire and pay someone to perform his duties.

2

Appellant began officially working as an office manager at the daycare center on
February 2, 2008.
By decision dated April 28, 2008, the Office found that appellant had forfeited his
compensation benefits for the period October 31, 2004 through May 13, 2006. Although he
denied any employment on the EN1032 forms completed on March 23, 2003, March 17, 2004,
January 28 and April 3, 2006, he admitted working at the daycare facility from September 2005.
The Office found that appellant omitted material information on the January 28 and May 7, 2006
EN1032s and forfeited the compensation received during the 15-month period covered by these
forms, or $44,099.24 from October 31, 2004 through May 13, 2006.
On April 28, 2008 the Office also made a preliminary determination that appellant
received an overpayment of compensation in the amount of $44,099.24 based on the forfeiture
from October 31, 2004 through May 13, 2006. It found that appellant was at fault in the creation
of the overpayment as he knowingly omitted reporting his involvement in a business enterprise.
Appellant requested a prerecoupment hearing on May 20, 2008.
On October 7, 2008 appellant testified that he currently received $1,500.00 in
compensation benefits and $900.00 in earnings a month. As to monthly expenses his mortgage
was $950.00, food was $550.00 to $600.00, clothing was $75.00 a month and utilities were
$200.00. Appellant also listed $900.00 in miscellaneous expenses. He had credit card debt and
made monthly payments of $300.00. Appellant had $4,000.00 in checking and no savings
account with $20,000.00 in his retirement fund. He characterized his involvement with the
daycare center as “Basically hanging out, helping with her books, because she was not too good
in math.” Appellant was not paid and he did not indicate he was volunteering because the form
included volunteering and receiving money. He contended that he was doing a favor for a friend.
On November 6, 2008 appellant’s attorney asserted that appellant disputed the amount of
the overpayment specifically the date of October 2004. He argued that the EN1032 was
misleading and vague. Appellant correctly answered no because he received no monetary or
other compensation for volunteering. Counsel argued that appellant did not knowingly omit
material information regarding his volunteer work. He asserted that appellant was without fault
in the creation of the overpayment and requested waiver due to financial hardship.
By decision dated December 23, 2008, the hearing representative found that the activities
performed by appellant, although on a volunteer basis, clearly merited notification to the Office.
Ms. Cartisano advised that she would have had to hire someone to perform the duties appellant
performed previously on a volunteer basis and that appellant was now currently employed with
earnings performing those same duties. The hearing representative found appellant reasonably
should have been aware of the reporting requirements and he knowingly failed to report his
employment activities as required. He concluded that all compensation paid for the period
October 31, 2004 through May 13, 2006 was forfeited. The hearing representative found that
appellant was at fault in the creation of the overpayment such that it was not subject to waiver.
Based on the financial information submitted, appellant had approximately $2,400.00 in monthly
income and $3,125.00 in monthly expenses. The hearing representative noted that appellant had
a monthly deficit of approximately $725.00. He concluded, “No reasonable repayment plan can

3

be established and this reviewer has no alternative than to declare the entire amount of the
overpayment of $44,099.24 due and payable at this time.”
On appeal, appellant’s attorney contends that the hearing representative misquoted his
letter, that the Form CA-1032 is vague and that appellant reasonably believed that his activities
constituted volunteering rather than employment and that the Office erred in requiring repayment
of the entire amount.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the time the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required.”1
Appellant, however, can only be subjected to the forfeiture provision of 5 U.S.C. § 8106
if he “knowingly” failed to report employment or earnings. It is not enough to merely establish
that there were unreported earnings. The Board has recognized that forfeiture is a penalty, and,
as a penalty provision, it must be narrowly construed.2 The term “knowingly” is defined in the
regulations as “with knowledge, consciously, willfully or intentionally.”3
Section 10.5(g) of the Office’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s

1

5 U.S.C. § 8106(b).

2

Anthony A. Nobile, 44 ECAB 268, 271-72 (1992).

3

20 C.F.R. § 10.5(n).

4

responsibility to report the estimated cost to have someone else perform his or her
duties.”4
ANALYSIS -- ISSUE 1
The Office found that appellant forfeited his right to compensation because he knowingly
failed to report his earnings and employment on EN1032 forms dated January 28 and
May 7, 2006. Appellant completed the forms, representing that he was not employed and did not
engage in self-employment. He denied performing volunteer work. Inspectors with the
employing establishment, however, conducted surveillance of appellant on multiple occasions
and observed him opening and closing the center, greeting parents, supervising children,
sweeping, removing garbage and carrying children. The inspectors found that he worked from
10 to 12 hours a day. Investigators also telephoned the center and appellant identified himself as
the office manager. The owner of the center, Ms. Cartisano, stated that appellant volunteered
and was not paid for his work; however, she acknowledged that without his help she would have
to hire and pay someone to perform his duties.
The Board finds that the evidence establishes that appellant failed to report earnings from
employment. The Office’s regulation defines earnings to include a reasonable estimate of the
cost to have someone else perform the duties of an individual who accepts no remuneration.
Neither the lack of profits, nor the characterization of the duties as a hobby, removes an
unremunerated individual’s responsibility to report the estimated cost to have someone else
perform his or her duties.5 Appellant clearly performed duties for the daycare center which the
owner would have had to pay an individual to complete. He opened and closed the center,
watched the children, helped with bookkeeping and took out the garbage.
Appellant can be subject to the forfeiture provision of section 8106(b) only if he
knowingly failed to report a reasonable estimate of the cost to have someone else perform the
duties he performed. The Office has the burden of proof to establish that a claimant did, either
with knowledge, consciously, willfully or intentionally, fail to report earnings from
employment.6 Appellant completed EN1032 forms which advised him to report all employment
and all earnings from employment and self-employment. The EN1032 forms also required him
to report all volunteer work. The EN1032 forms clearly stated that he could be subject to
criminal prosecution for false of evasive answers or omissions. The factual circumstances of the
record, including appellant’s signing of strongly worded certification clauses on the EN1032
forms, provide persuasive evidence that he knowingly understated his earnings and employment
information.7 The Office properly found that appellant forfeited his entitlement to compensation
for the period covered by the EN1032 forms which he signed on January 28 and May 7, 2006.

4

Id. at § 10.5(g).

5

P.M., 60 ECAB ___ (Docket No. 07-2169, issued March 3, 2009).

6

20 C.F.R. § 10.5(n).

7

See Generally Robert C. Gilliam, 50 ECAB 334 (1998).

5

LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of the Office’s implementing regulation provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [the Office] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”8
ANALYSIS -- ISSUE 2
The Office’s regulations provide that it may declare an overpayment of compensation for
the period of a given forfeiture of compensation. If a claimant has any earnings or employment
activities during a period covered by the Form EN1032 which he knowingly fails to report, he is
not entitled to any compensation for any portion of the period covered by the report, even though
he or she may not have had earnings during a portion of that period.9
The Office found that appellant forfeited his right to compensation for the period
October 31, 2004 to May 15, 2006 because he knowingly failed to report his earnings and
employment activities on EN1032 forms covering this period. Appellant signed EN1032 forms
on January 28 and May 7, 2006 covering the period October 28, 2004 through May 7, 2006. If a
completed Form EN1032 omits earnings resulting in a finding of forfeiture, the Board has found
that the period of forfeiture is the entire 15-month period covered by the form.10 As appellant
signed a form on January 28, 2006, 15 months preceding this date is October 28, 2004.
Appellant signed the last EN1032 denying that he had earnings on May 7, 2006 and the Office
may not extend the forfeiture period to the end of the pay period for its own convenience in
calculating the amount of the overpayment. Consequentially, the Office has not accurately
calculated the amount of the overpayment and the case will be remanded for an appropriate
calculation of the compensation paid for the period October 28, 2004 through May 7, 2006.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act11 provides: Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and

8

20 C.F.R. § 10.529.

9

Louis P. McKenna, Jr., 46 ECAB 328 (1994).

10

Ronald E. Ogden, 56 ECAB 278, 285 (2005).

11

5 U.S.C. § 8129(b).

6

when adjustment or recovery would defeat the purpose of the Act of would be against equity and
good conscience.”
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events, which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).12
ANALYSIS -- ISSUE 3
The Office properly determined that appellant was at fault in the creation of the
overpayment because he failed to provide information which he knew or should have known to
be material on EN1032 forms covering the period October 28, 2004 through May 7, 2006.
Appellant had earnings as defined by section 10.5(g) of the Office’s regulations from working in
a daycare center during this period. He did not report employment and earnings on EN1032
forms covering October 28, 2004 through May 7, 2006 and did not report any volunteer work;
thus, he failed to furnish material information to the Office. Appellant signed certification
clauses on EN1032 forms which advised him in explicit language that he might be subject to
civil, administrative or criminal penalties if he knowingly made a false statement or
misrepresentation or concealed a fact to obtain compensation. Consequently, by signing the
form, he is deemed to have acknowledged his duty to fill out the form properly, including the
duty to report any employment or self-employment activities and income. Appellant, therefore,
failed to furnish information which he knew or should have known to be material to the Office.
As he is not without fault in creating the overpayment, it is not subject to waiver.
LEGAL PRECEDENT -- ISSUE 4
The method by which the Office may recover overpayments is defined by regulation.
The applicable regulations, 20 C.F.R. § 10.441(a) provides as follows:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”

12

20 C.F.R. § 10.433(a).

7

ANALYSIS -- ISSUE 4
Appellant provided detailed information about his current financial circumstances. The
hearing representative found that appellant had $2,400.00 in monthly income and $3,125.00 in
monthly expenses. The hearing representative stated, “No reasonable repayment plan can be
established and this reviewer has no alternative than to declare the entire amount of the
overpayment of $44,099.24 due and payable at this time.”
The Board finds that the Office hearing representative did not attempt to decrease
appellant’s later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship. On remand, the Office considered the
applicable factors and determined an appropriate repayment plan for appellant to minimize
financial hardship.
CONCLUSION
The Board finds that the Office properly determined that appellant forfeited his
entitlement to compensation from October 28, 2004 through May 7, 2006 because he knowingly
failed to report employment activities. The Board further finds that appellant received an
overpayment during this period for which he was at fault and remands the case for the Office to
properly calculate the amount of the overpayment. The Board also finds that the Office must
determine an appropriate repayment plan considering the factors listed in 20 C.F.R. § 10.441(a).

8

ORDER
IT IS HEREBY ORDERED THAT the December 23 and April 28, 2008 are affirmed
in part and set aside in part. The case is remanded for further action consistent with this decision
of the Board.
Issued: November 10, 2009
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1007
Issued: August 15, 2016

Case Submitted on the Record

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

JURISDICTION
On April 12, 2016 appellant filed a timely appeal from the February 17, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision of OWCP dated April 30, 2015 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that her attending physician had submitted a medical
diagnosis as requested.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 26, 2015 appellant, then a 71-year-old contract specialist, filed an
occupational disease claim (Form CA-2) alleging that on January 22, 2015 she first became
aware of her sore wrists which made it difficult for her to type and realized that her condition
was caused or aggravated by typing on a computer at work. She did not submit any evidence
with her claim.
By letter dated March 10, 2015, OWCP informed appellant about the deficiencies in her
claim and provided her the opportunity to submit medical and factual evidence within 30 days.
No response was received within the allotted time period.
In an April 30, 2015 decision, OWCP denied appellant’s claim as she did not submit any
medical evidence to establish that a medical condition was diagnosed in connection with the
claimed work factor.
On May 14, 2015 appellant provided a history of her employment, described her hobbies,
and claimed that she had experienced soreness in her left hand and wrist, off and on over the
years. She also submitted a description of her contract specialist position.
In an after-summary visit report dated February 2, 2015, Dr. Rose Eng, a Board-certified
internist, provided appellant with instructions for the medical treatment of her wrist and work
recommendations.
On November 13, 2015 appellant requested reconsideration of the April 30, 2015
decision.
Documentation of medical treatment from Kaiser Permanente described appellant’s home
exercise program and care instructions for trigger finger.
Employment records addressed appellant’s request for an ergonomic consultation and
equipment regarding her wrist, neck, shoulder, and upper back discomfort and pain.
Appellant submitted a Form CA-2 dated February 4, 2015 for a wrist injury which was
nearly identical to the one previously submitted on February 26, 2015.
In an undated narrative statement, appellant described the medical treatment she received
for her trigger finger condition. She also described her work duties, which primarily included
computer usage which she performed six hours a day on weekdays and also on weekends as
required. Appellant asserted that, during 14 years of working at the employing establishment,
she had issues with trigger fingers for which she took medication and treated with ice. She
maintained that her physicians had stated that repeated typing caused her condition.
In a February 17, 2016 decision, OWCP denied further merit review of appellant’s claim.
It found that the evidence submitted was not sufficient to warrant a merit review.

2

LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a 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.2 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).3 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.4 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.5
ANALYSIS
On November 13, 2015 appellant requested reconsideration of the April 30, 2015
decision that denied her occupational disease claim. OWCP found that she failed to submit any
medical evidence to establish a medical condition causally related to her accepted employment
factors.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, she did not advance a relevant legal argument not
previously considered.
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. Dr. Eng’s February 2, 2015 after summary visit report
which addressed the treatment of appellant’s wrist condition and provided work
recommendations is not relevant to the issue of whether she had a medical condition causally
related to the accepted employment factors. She did not provide an opinion as to whether
appellant’s wrist condition was causally related to the accepted employment factors. Similarly,
the medical treatment documentation from Kaiser Permanente which described appellant’s home
exercise program and care instructions for her trigger finger condition did not contain a
physician’s opinion that addressed the issue of causal relationship. The Board has held that the
submission of evidence which does not address the particular issue involved in the case does not
constitute a basis for reopening the claim.6 Thus, these reports do not constitute pertinent new
and relevant evidence and are thus insufficient to require OWCP to reopen appellant’s case for
further review of the merits.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.608(a).

4

Id. at § 10.606(b)(3).

5

Id. at § 10.608(b).

6

D’Wayne Avila, 57 ECAB 642 (2006).

3

Likewise, the employment records which addressed appellant’s request for an ergonomic
consultation and equipment regarding her wrist, neck, shoulder, and upper back discomfort and
pain and provided a description of her contract specialist job, and the February 4, 2015 Form
CA-2 do not constitute relevant and pertinent new evidence sufficient to warrant reopening the
claim. This evidence did not address the underlying relevant medical issue of causal
relationship.7
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, appellant contends that her attending physician had submitted a medical
diagnosis as requested. This argument pertains to the merits of the claim. As noted, the Board
does not have jurisdiction over the merits of the case.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Id.

4