United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 21-0995
Issued: March 2, 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 June 17, 2021 appellant filed a timely appeal from a December 21, 2020 nonmerit
decision and an April 15, 2021 merit decision and of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) whether
appellant has met his burden of proof to establish permanent impairment of a scheduled member
or function of the body, warranting a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 10, 1989 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 1989 he sustained a left knee injury when pulling an allpurpose container (APC) while in the performance of duty. He did not stop work but was granted
disability retirement on March 11, 1992. OWCP accepted that appellant sustained a sprain/strain
of the left knee and leg, a tear of the left lateral meniscus, and left corns/calluses. It authorized
arthroscopic surgery on the left knee, performed on January 23, 1990.3
On April 15, 2005 appellant filed a notice of recurrence of disability (Form CA-2a),
alleging that he experienced pain and weakness in his left knee commencing October 30, 2004,
causally related to the accepted May 10, 1989 employment injury.
By decision dated August 16, 2006, OWCP denied appellant’s recurrence of disability
claim, finding that the evidence of record was insufficient to establish that appellant sustained a
recurrence of disability commencing October 30, 2004 causally related to his work injury of
May 9, 1989.
On November 28, 2006 appellant appealed to the Board. 4 By decision dated June 7, 2007,
the Board affirmed the August 16, 2006 OWCP decision.
OWCP received additional evidence. Appellant subsequently submitted employing
establishment medical records dated March 4, 1977 through June 7, 1988 where he was treated for
several conditions including ankle, toe, right foot, and back pain. He was treated by Dr. Michael
Redlich, a Board-certified neurologist, on February 25, 1992 for cervical and thoracic disc
syndrome. Likewise, from March 12, 1993 through August 11, 2000, Dr. A. Janati, a Boardcertified neurologist, treated appellant for chronic neck and left lower extremity pain. He
diagnosed degenerative arthritis of the cervical and thoracic spine, which was related to trauma
while in the military in 1978. Appellant attended physical therapy from July 17, 1978 through
March 16, 2000. He also submitted a position description for a personnel clerk.
Dr. Azer treated appellant from October 20, 1989 through September 10, 1991 for
callouses on his left foot and left knee pain. OWCP received diagnostic studies from March 3,
1992 through December 21, 2017.

2

Docket No. 07-406 (issued June 7, 2007).

3

On January 23, 1990 Dr. Samir N. Azer, a Board-certified orthopedist, performed arthroscopy of the left knee,
removed loose chondral fracture, shaved crater, and diagnosed loose chondral body of the left knee with greater defect
of the left medial femoral condyle weight bearing surface.
4

Supra note 2.

2

On January 21, 2017 Dr. Ferdinand M. Amante, Jr., an orthopedic surgeon, reevaluated
appellant for a painful left knee. Appellant reported sustaining a proximal left leg fracture at 14
years old and underwent a left knee meniscectomy in 1990. He diagnosed osteoarthritis of the left
knee and left leg length discrepancy which could be an aggravating factor for osteoarthritis.
In a statement dated September 13, 2018, appellant provided a history of his employment
with the Federal Government. He sought to expand the acceptance of his claim to include
aggravated underlying preexisting medical conditions. In a statement dated December 13, 2018,
appellant again requested expansion of his claim.
In a medical certificate and report dated November 20, 2018, Dr. Emiliano B. Tablante, a
Board-certified orthopedist, noted a history of the May 9, 1989 work injury and provided a medical
history from May 1967 through January 2, 2018. He noted that appellant underwent a posterior
decompression L3-4 and L4-5 on January 2, 2018. Dr. Tablante noted findings on examination of
decreased stride length, tight on trapezius, paracervical and lats doris, muscle spasm o f lower
trapezius, intermittent localized pain of the knee and patella, muscle spasm with dull pain in the
feet and hand, and cervical pain with radiculopathy. He diagnosed left ganglion cyst of first
metatarsal head, focal right synovitis, posterior calcaneal spur, left os peroneum, right pes planus,
overpronation of the foot, osteoarthritis changes of the knees, left patella osteophyte, right knee
varus, status post chronic low back pain with radiculopathy, levoscoliosis, compression deformity
of the thoracic spine, thoracic spondylosis, cervical spondylosis with radiculopathy at C4-5, C5-6,
C6-7, mild anterior wedge compression deformities at C5-6, and bilateral carpal tunnel syndrome.
Dr. Tablante opined within a reasonable degree of medical certainty that the above medical
conditions were consequential to the accepted left knee and leg sprain/strain, left lateral meniscus
tear, and left calluses. He recommended further diagnostic work up including epidural cervical
injections and diagnostic arthroscopy of the left knee.
On May 30, 2019 appellant again requested his claim be reopened and expanded to include
additional conditions.
On September 28, 2020 appellant requested reconsideration of the August 16, 2006 OWCP
decision denying his recurrence claim. He alleged clear evidence of error in the last OWCP
decision based on OWCP’s failure to develop his subsequent injury claims after the January 25,
1990 OWCP-authorize arthroscopic left knee surgery revealed loose chondral bodies and defect
of the medial femoral condyle. Appellant also requested a schedule award for the left lower
extremity, and expansion of the acceptance of his claim.
On September 28, 2020 OWCP received an electromyogram (EMG) and nerve conduction
velocity (NCV) study dated September 18, 2003 that revealed multiple peripheral neuropathy,
sensorimotor affecting the lower more than upper extremities without ruling out bilateral chronic
cervical C5-6 radiculopathies and bilateral lumbar L5 radiculopathies. X-rays of the feet dated
October 3, 2017 revealed posterior calcaneal spurs and os peroneum of the left foot. An x -ray of
the right hip dated November 24, 2019 revealed no discrete fracture or dislocation. An x-ray of
both knees dated March 10, 2020 revealed mild degenerative osteoarthritic changes and bilateral
patellar enthresophytes.

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On October 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated October 20, 2020, OWCP requested that appellant submit an
impairment evaluation addressing whether he had reached MMI and provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days to submit additional medical
evidence in support of his schedule award claim.
By decision dated December 21, 2020, OWCP denied appellant’s reconsideration request
of the August 16, 2006 recurrence decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
By decision dated April 15, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely, it undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.11
5

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

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 (September 2020).

4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures 16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including a merit decision of the Board.17 The most recent merit decision on the recurrence issue
was the Board’s June 7, 2007 decision, which affirmed the denial of appellant’s claim for a
recurrence of disability on October 30, 2004. As OWCP received his request for reconsideration
on September 28, 2020, more than one year after the June 7, 2007 decision, the Board finds that it
was untimely filed. Because appellant’s request was untimely filed, he must demonstrate clear
evidence of error on the part of OWCP in its August 16, 2006 decision.

12

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (September 2020).

14

U.C., Docket No. 19-1753 (issued June 10, 2020).

15

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

20 C.F.R. § 10.607(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a. (September 2020); R.G., Docket No. 21-0540 (issued November 9, 2021); B.P., Docket No. 20-0178
(issued August 23, 2021); Debra McDavid, 57 ECAB 149 (2005).

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Appellant submitted employing establishment medical records dated March 4, 1977
through June 7, 1988; treatment notes from Dr. Redlich dated February 25, 1992; reports from
Dr. Janati dated March 12, 1993 through August 11, 2000; physical therapy treatment notes from
July 17, 1978 through March 16, 2000; and reports from Dr. Azer dated October 20, 1989 through
September 10, 1991. These reports are not relevant to the recurrence claim as they predate the
alleged date of the recurrence and do not raise a substantial question as to whether the August 16,
2006 decision was in error. 18
Appellant submitted diagnostic studies dated March 3, 1992 through March 10, 2020
including x-rays, MRI scans, and an EMG/NCV study. Diagnostic studies, standing alone, lack
probative value on the issue of causal relationship. 19 Therefore, none of this evidence manifests
on its face that OWCP committed an error in denying appellant’s claim for recurrence of disability
commencing October 30, 2004. Thus, the evidence is insufficient to demonstrate clear evidence
of error.20
Appellant also submitted a January 21, 2017 report from Dr. Amante who diagnosed
osteoarthritis of the left knee and left leg length discrepancy, which could be an aggravating factor
for osteoarthritis. Similarly, in a medical certif icate and report dated November 20, 2018,
Dr. Tablante provided additional nonaccepted diagnoses and opined within a reasonable degree of
medical certainty the mentioned diagnoses were consequential to the accepted left knee and leg
sprain/strain, left lateral meniscus tear, and left calluses. However, these reports do not address
the claimed recurrence of disability commencing October 30, 2004. Thus, this evidence does not
raise a substantial question as to the correctness of OWCP’s August 16, 2006 merit decision. 21
As appellant has not raised an argument or submitted any evidence that manifests on its
face that OWCP committed an error in denying his recurrence claim, the Board finds that his
untimely request for reconsideration failed to demonstrate clear evidence of error. 22
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA, 23 and its implementing federal regulations,24 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
18

M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).

19

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
20

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

21

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

22

Id.

23

5 U.S.C. § 8107.

24

20 C.F.R. § 10.404.

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consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 25 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 26
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 27 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.28 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a d iscussion of how the
impairment rating was calculated. 29 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.30
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 31 OWCP procedures, however,
further provide that if a claimant does not provide an impairment evaluation from his or her
physician when requested, and there is an indication of permanent impairment in the medical
evidence of file, the claims examiner (CE) should refer the claimant for a second opinion
evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion
examination to determine if the evidence in the file is sufficient for the DMA to provide an
impairment rating. If the case is referred for a second opinion, the report should contain the
information described in 6a above.32 If it does not contain this information, clarification with the
second opinion should be sought. 33

25

Id. at § 10.404(a).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
27

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

28

Supra note 8 at Chapter 2.808.5 (March 2017).

29

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

30

Id. at Chapter 2.808.6(c).

31

Id.

32

Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was
calculated. Supra note 8 at Chapter 2.808.6a.
33

Supra note 8 at Chapter 2.808.6d (March 2017).

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ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted the claim for sprain/strain of the left knee and leg, a tear of the left lateral
meniscus, left corns/calluses, and aggravation of other spondylosis with radiculopathy,
lumbosacral region. On October 9, 2020 appellant filed a claim for a schedule award. Under
FECA,34 where a claimant is seeking a schedule award, he or she must submit a medical report
that “must contain accurate measurements of the function of the organ or member, in accordance
with the A.M.A., Guides.”35 The burden is on the claimant to provide this evidence. 36
In support of his claim, appellant submitted a November 20, 2018 report by Dr. Tablante.
However, the Board finds that it is of diminished probative value because he neither utilized the
sixth edition of the A.M.A., Guides, nor found that appellant reached MMI. Therefore,
Dr. Tablante’s report is insufficient to establish permanent impairment of a scheduled member or
function of the body causally related to appellant’s accepted employment condition. 37
The remaining medical evidence submitted by appellant is also insufficient to establish
permanent impairment of a scheduled member or function of the body causally related to
appellant’s accepted employment condition as it also does not conform with the protocols of the
A.M.A., Guides.
Accordingly, the Board finds that appellant has not met his burden of proof.
Appellant may request a schedule award, or increased schedule award, at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. The Board
further finds that appellant has not met his burden of proof to establish permanen t impairment of
a scheduled member or function of the body, warranting a schedule award.

34

Supra note 1.

35

20 C.F.R. § 10.333.

36

Id. at § 10.115.

37

See M.G., Docket No. 19-0823 (issued September 17, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 and December 21, 2020 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 17-1388
Issued: November 2, 2017

Case Submitted on the Record

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

JURISDICTION
On June 7, 2017 appellant filed a timely appeal from a May 8, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability on March 9, 2017 causally related to her October 24, 2007 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2
The facts set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows. On October 29, 2007 appellant, then a 41-year-old nursing
assistant, filed a traumatic injury claim (Form CA-1) alleging a lower back condition when
assisting a patient into a chair on October 24, 2007. Dr. Mark A. Goldstein, an osteopath,
diagnosed lumbar strain and somatic dysfunction of the sacroiliac joint on December 4 and 5,
2007 and January 16, 2008. He noted that appellant’s back pain was not radiating, but that she
experienced occasional right leg weakness.
Appellant filed a notice of recurrence of disability (Form CA-2a) on March 11, 2008
alleging that on March 7, 2008 her pain increased after transferring a patient and that lifting a
heavy item increased her pain. On May 5, 2008 OWCP accepted her claims for lumbar
sprain/strain.
Appellant filed a claim for a schedule award (Form CA-7) on August 5, 2008. In a letter
dated February 21, 2013, OWCP noted that she had requested a schedule award, but had not
submitted medical evidence of a permanent impairment due to her accepted lumbar sprain. It
thereafter requested additional medical evidence supporting a permanent impairment.
By decision dated November 18, 2013, OWCP denied appellant’s claim for a schedule
award finding that she had not submitted medical evidence of a permanent impairment of a
scheduled member under FECA.3 Appellant appealed this decision to the Board. In its
September 17, 2014 decision, the Board found that she had not met her burden of proof to
establish permanent impairment, warranting a schedule award.
On March 13 and 17, 2017 appellant filed a recurrence claim (Form CA-2a) alleging that
on March 9, 2017 she sustained a recurrence of disability causally related to her October 24,
2007 employment injury. She indicated that following her 2007 work injury she returned to
work at the employing establishment with permanent restrictions on bending, pushing, pulling,
kneeling, squatting, and lifting over 25 pounds. Appellant reported problems with low back pain
and noted that her last position was working at an employing establishment nursing home. She
sat down in an office chair and experienced pain from her lower to middle back. Appellant
provided a list of her employing establishment positions including nursing assistance, laboratory,
women’s clinic, nursing home, and material management.
In a letter dated March 17, 2017, OWCP requested additional medical evidence in
support of appellant’s recurrence of disability claim. It noted that she had not provided medical
evidence that her October 24, 2007 traumatic lumbar strain caused her current need for medical
treatment or disability for work. OWCP afforded appellant 30 days to respond.

2

Docket No. 14-1199 (issued September 17, 2014).

3

Supra note 1.

2

Appellant responded on March 17, 2017 and asserted that her supervisor was refusing to
cooperate with completion of claim forms. A nurse practitioner4 completed a note at the
employing establishment clinic on March 9, 2017 and listed her restrictions due to her workrelated condition. She indicated that appellant could return to work on March 9, 2017. In an
employing establishment clinic note dated March 13, 2017, Dr. Jeffrey R. Spina, an internist,
indicated by checking a box marked “yes” that appellant’s unidentified injury was work related.
He provided work restrictions on standing, lifting, pushing, pulling, and climbing stairs.
Dr. Spina indicated that appellant could return to work on March 13, 2017.
In a letter dated March 24, 2017, appellant asserted that her initial Form CA-2a was
incorrect and that her supervisor was not cooperating by completing an incident report from
March 17, 2017.
By decision dated May 8, 2017, OWCP denied appellant’s recurrence claim finding that
the evidence of record did not establish an increase of disability do to a change in her accepted
work-related condition.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.5
OWCP procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous, material change in the medical condition demonstrated by objective
findings. That change must result from the previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence, causal relationship between her recurrence of disability and the accepted
employment injury.7 This burden of proof includes the necessity of furnishing medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
4

The Board notes that the nurse practitioner’s signature is illegible.

5

20 C.F.R. § 10.5(x).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). D.G., Docket
No.16-0216 (issued July 7, 2016); Kenneth R. Love, 50 ECAB 193, 199 (1998).
7

D.G., id.; Ronald A. Eldridge, 53 ECAB 218 (2001); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

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concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.8 Where no such rationale is present, the medical
evidence is of diminished probative value.9
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish a
recurrence of disability on March 9, 2017 causally related to her October 24, 2007 employment
injury.
OWCP accepted that appellant’s October 24, 2007 injury resulted in lumbar sprain and
strain. Appellant returned to work in a series of modified-duty positions. She filed a claim for a
recurrence of disability, effective March 9, 2017. Appellant has the burden of proof to establish
a recurrence of disability due to either a change in her injury-related condition, without
intervening injury, or to withdrawal of limited-duty employment on or after March 9, 2017.
The record does not contain any medical opinion evidence, based upon a complete and
accurate history, to support that appellant sustained a spontaneous material change in her
accepted injury that would prevent her from performing the modified-duty position she held on
March 9, 2017, the date she claimed total disability. The record also contains no evidence
establishing that her light-duty job was withdrawn or changed on or after March 9, 2017.
On March 13, 2017 Dr. Spina indicated by checking a box marked “yes” that appellant’s
injury was work related. The Board has held that an opinion on causal relationship which consists
only of a physician checking a box marked “yes” to a medical form report question on whether the
claimant’s condition or disability was related to the history given is of little probative value.
Without any explanation or rationale for the conclusion reached, such report is insufficient to
establish causal relationship.10 Dr. Spina did not provide a diagnosis or any medical reasoning in
support of his opinion on causal relationship. Furthermore, he did not opine that appellant was
totally disabled beginning March 9, 2017. Additionally, there is no evidence of any spontaneous
material worsening, demonstrated by objective findings, without intervening injury, to support
that appellant’s work injury made her incapable of performing the modified-duty position
effective March 9, 2017 as alleged. For these reasons, Dr. Spina’s report is insufficient to meet
appellant’s burden of proof to establish her recurrence of disability claim.
A nurse practitioner completed a note at the employing establishment clinic on
March 9, 2017. FECA provides that the term physician includes: surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope
of their practice as defined by state law.11 Healthcare providers such as licensed clinical social
8

See Ronald A. Eldridge, id.; Nicolea Bruso, 33 ECAB 1138, 1140 (1982); D.G., supra note 6.

9

D.G., supra note 6; Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

10

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

11

5 U.S.C. § 8101(2); T.R., Docket No. 17-0239 (issued April 12, 2017); V.C., Docket No. 16-0642 (issued
April 19, 2016); K.W., 59 ECAB 271, 279 (2007); David P. Sawckuk, 57 ECAB 316, 320 n.11 (2006); Allen C.
Hundley, 53 ECAB 551 (2002).

4

workers, nurses, nurse practitioners, acupuncturists, physician assistants, and physical therapists
are not considered physicians under FECA and their reports and opinions do not constitute
competent medical evidence to establish a medical condition, disability, or causal relationship.12
As this report was not signed by a physician, it does not support appellant’s recurrence of
disability claim.13
The Board thus finds that appellant failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a
recurrence of disability on March 9, 2017 causally related to her October 24, 2007 employment
injury.

12

Federal (FECA) Procedure Manual, supra note 6 at Causal Relationship, Chapter 2.805.3a(1) (January 2013);
see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649
(1989); Jane A. White, 34 ECAB 515 (1983).
13

Merton J. Sills, 39 ECAB 572 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 2, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. COAST GUARD, COAST GUARD YARD,
Curtis Bay, MD, Employer
__________________________________________

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

Docket No. 10-312
Issued: October 1, 2010

Case Submitted on the Record

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

JURISDICTION
On November 13, 2009 appellant filed a timely appeal from an October 27, 2009 decision
of the Office of Workers’ Compensation Programs regarding a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than a 46 percent impairment of the right upper
extremity, for which he received a schedule award.
On appeal, appellant contends that he has a 55 percent impairment to the right arm due to
arthritis, pain, fatigue and the effects of multiple surgeries.
FACTUAL HISTORY
The Office accepted that on February 18, 1994 appellant, then a 24-year-old electrical
worker, sustained a recurrent dislocated right shoulder. Appellant sustained a prior right

shoulder dislocation in the performance of duty on September 27, 1991.1 He underwent an open
Bankart repair with reconstruction of a complete glenoid labrum tear on February 11, 1992. On
July 21, 1994 appellant underwent a repeat Bankart repair with reattachment of the glenolabral
capsule and subscapularis tendon. By decision dated October 11, 1995, the Office granted
appellant a schedule award for a five percent permanent impairment of the right shoulder due to
restricted motion.
Appellant claimed additional impairment on November 29, 1997. In a January 5, 1998
report, an Office medical adviser reviewed an August 14, 1997 report from Dr. Michael S.
Propper, an attending Board-certified orthopedic surgeon. The medical adviser opined that,
according to the fourth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter, “A.M.A., Guides”), appellant had a 10 percent right upper
extremity impairment due to restricted motion and 9 percent impairment due to deltoid atrophy
and axillary nerve impairment.2 The medical adviser combined these impairments to total 18
percent. In a March 1, 1998 decision, the Office granted appellant an additional schedule award
for a 13 percent right arm impairment or a total of 18 percent impairment. Following additional
medical development, on August 12, 2000, the Office granted appellant a schedule award for an
additional 28 percent permanent impairment of the right upper extremity or a total of 46 percent.
Beginning in April 2002, appellant was followed by Dr. Constantine A. Misoul, an
attending Board-certified orthopedic surgeon. In reports dated through August 2002, Dr. Misoul
noted weakness and limited motion in the right shoulder. He prescribed physical therapy and
administered cortisone injections. On November 13, 2007 Dr. Misoul noted that x-rays showed
post-traumatic arthritis on the glenohumeral joint and a lesion of the humeral head. He
diagnosed post-traumatic arthritis of the glenohumeral joint related to the accepted dislocations
and surgeries. A January 22, 2008 right shoulder arthrogram and accompanying magnetic
resonance imaging (MRI) scan showed metallic anchors in the glenoid rim, bursal irregularities,
possible intrabursal debris, fraying of the supraspinatus tendon and acromioclavicular
degeneration. On January 11, 2008, Dr. Misoul performed arthroscopy of the right shoulder,
authorized by the Office. The procedure included lysis of glenohumeral lesions, synovectomy of
the anterior and posterior capsules, chondroplasty of the humeral head, subdeltoid bursectomy,
coracoacromial ligament release, acromioplasty and rotator cuff debridement.
On January 17, 2009 appellant claimed an additional schedule award. He submitted
reports from Dr. Misoul dated September 25, 2008 to April 14, 2009, finding appellant reached
maximum medical improvement as of February 25, 2008. Dr. Misoul performed an impairment
rating on April 28, 2009. He observed the following ranges of motion for the right shoulder: 60
degrees forward flexion; 10 degrees extension; 60 degrees abduction; 10 degrees adduction; 20
degrees internal rotation; 20 degrees external rotation. Dr Misoul noted all motion as
1

The September 27, 1991 injury was originally processed under a separate claim number. Effective October 28,
1996 the Office doubled appellant’s right shoulder injury claims under master File No. xxxxxx559.
2

The medical adviser assessed a three percent impairment due to right shoulder adduction limited to 110 degrees,
a five percent impairment due to flexion limited to 110 degrees and a two percent impairment due to restricted
external rotation. The medical adviser also assessed a nine percent impairment due to deltoid atrophy and
impairment of the axillary motor nerve.

2

accompanied by pain, weakness and crepitus. Referring to the 6th edition of the A.M.A., Guides,
he found a 25 percent impairment of the right upper extremity due to restricted motion,
according to Table 15-34, page 475. Dr. Misoul also noted a 30 percent impairment of the right
arm due to pain, weakness, crepitus, loss of function and loss of endurance. He totaled these
impairments to equal a 55 percent impairment of the right upper extremity.
In a September 15, 2009 report, an Office medical adviser reviewed Dr. Misoul’s
April 28, 2009 opinion. The medical adviser explained that Dr. Misoul misapplied the A.M.A.,
Guides by combining impairments for restricted motion with pain and weakness. According to
Table 15-5, page 405 of the A.M.A., Guides the Shoulder Regional Grid, range of motion stood
alone and was not combined with diagnosis-based impairment. Referring to Table 15-5, page
403, the adviser noted a Class 1 or “mild” impairment with a default value of 10 percent. He
then referred to the grade modifiers for range of motion under Table 15-34, page 475.3 The
medical adviser calculated the following percentages of right upper extremity impairment: nine
percent for flexion limited to 60 degrees; two percent for extension limited to 10 degrees; six
percent for abduction limited to 60 degrees; two percent for adduction limited to 10 degrees;
eight percent for internal rotation limited to 20 degrees; two percent for external rotation limited
to 20 degrees. Using the Combined Values Chart on page 604, the medical adviser calculated a
27 percent impairment of the right upper extremity based on restricted motion. In a
supplemental report, the medical adviser stated that the 27 percent impairment was the total
percentage, less than the 46 percent previously awarded.
By decision dated October 27, 2009, the Office denied appellant’s claim for an additional
schedule award, based on the Office medical adviser’s opinion that appellant had only a 27
percent impairment of the right upper extremity, less than the 46 percent previously awarded. It
found that the medical adviser properly applied the appropriate portions of the sixth edition of
the A.M.A., Guides to Dr. Misoul’s clinical findings.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act4 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a mater which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment has been adopted by the Office as a standard for evaluation of schedule

3

Table 15-34, page 475 of the sixth edition of the A.M.A., Guides is entitled “Shoulder Range of Motion.”

4

5 U.S.C. §§ 8101-8193.

3

losses and the Board has concurred in such adoption.5 For a schedule award after May 1, 2009, the
impairment is evaluated under the sixth edition of the A.M.A., Guides published in 2008.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition of the A.M.A., Guides the evaluator identifies the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE) and clinical studies
(GMCS).8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
ANALYSIS
With respect to the right upper extremity, Dr. Misoul stated in his April 28, 2009 report
that appellant had a 55 percent right upper extremity impairment due to restricted motion, pain
and weakness. An Office medical adviser reviewed this report. He assessed a 10 percent or
Class 1 impairment of the right upper extremity according to Table 15-5. The adviser explained
that Dr. Misoul had misapplied the A.M.A., Guides by assessing impairments pain and weakness
in addition to restricted motion. Table 15-5, page 405 of the A.M.A., Guides specifies that range
of motion impairment is not combined with diagnosis-based impairments.
The medical adviser applied Table 15-34, “Shoulder Range of Motion,” to Dr. Misoul’s
clinical findings. The medical adviser found that according to Table 15-34, appellant had a nine
percent impairment of the right upper extremity for limited flexion, two percent for limited
extension, six percent for limited abduction, two percent for limited adduction, eight percent for
limited internal rotation and two percent for limited external rotation. Using the Combined
Values Chart on page 604, the medical adviser calculated a 27 percent impairment of the right
arm.
The Board finds that the medical adviser’s impairment rating is incomplete and requires
further clarification. He made reference to the shoulder regional grid on page 405 of the A.M.A.,
Guides and selected a class rating, but did not clearly specify the category. Also, while the
medical adviser evaluated the grade modifiers for range of motion, he did not evaluate the
functional history and clinical studies. These elements are factors used to determine the final
impairment rating. The case will be remanded for further development to clarify the medical
adviser’s impairment rating.
On remand of the case the medical adviser should address the medical evidence
consistent with the protocols for determining upper extremity impairment under such

5

Bernard A. Babcock, Jr, 52 ECAB 143 (2000).

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
8

A.M.A., Guides (6th ed., 2008), pp. 494-531.

4

development as it deems necessary, the Office shall issue an appropriate decision on appellant’s
claim for a schedule award.
On appeal, appellant contends that he sustained a 55 percent impairment to the right arm
due to arthritis, pain, fatigue and the effects of multiple surgeries. As noted, the case will be
remanded for further development to determine the appropriate percentage of permanent
impairment.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to the Office for further development of the medical evidence, to be followed by issuance of an
appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2009 is set aside and the case remanded to the Office
for further development consistent with this decision.
Issued: October 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Springfield, VA, Employer
__________________________________________

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

Docket No. 19-1053
Issued: January 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from a March 25, 2019
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 to consider 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, following the March 25, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her diagnosed
conditions were causally related to the accepted March 19, 2014 employment incident.
FACTUAL HISTORY
This case was previously before the Board.4 The facts and circumstances as set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On March 24, 2014 appellant, then a 50-year-old account technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 19, 2014 she sustained an injury when she was
struck by a gate as she was entering the worksite while in the performance of duty. She reported
getting hit on the nose by the gate and sustaining a neck and shoulder injury, nose fracture, extreme
swelling of the face, and a bruised neck and collar bone. Appellant first sought emergency medical
treatment on March 19, 2014.
In an April 29, 2014 progress note, Dr. Matthew Clarke, Board-certified in family
medicine, noted that he had treated appellant for neck and back complaints.
In a May 21, 2014 attending physician’s report (Form CA-20) and a prescription note, John
Mullin, a certified physician assistant, documented appellant’s treatment.
In a May 13, 2014 report, Dr. Lily Belfi, a Board-certified diagnostic radiologist, provided
diagnostic findings pertaining to an x-ray of the cervical spine. An impression of mild grade 1
retrolisthesis of C4-5, moderate left-sided neural foraminal narrowing at C4-5, and mild left-sided
neuroforaminal narrowing at C3-4 and C5-6 was noted.
In a June 18, 2014 note, Dr. Jean Xiao, Board-certified in internal medicine, reported that
appellant was unable to work due to a work-related condition sustained on March 19, 2014. He
diagnosed neck and back pain and provided work restrictions.
In a development letter dated June 24, 2014, OWCP notified appellant that her claim was
initially administratively handled to allow medical payments as it appeared to involve a minor
injury resulting in minimal or no lost time from work. However, appellant’s claim had been
reopened because a claim for wage-loss compensation had been received. OWCP advised her of
the type of medical and factual evidence needed to establish her claim and afforded her 30 days to
respond.
In a June 18, 2014 narrative report, Dr. Xiao reported that appellant sustained a workrelated injury on March 19, 2014. He noted that she sustained injury to her neck, back, face,
shoulder, and hands when a gate fell on her.
In a June 29, 2014 form report, Dr. Xiao again reported that appellant was injured on
March 19, 2014 when she was performing accounting work. He diagnosed unspecified backache,
cervicalgia, and unspecified derangement of joint of shoulder region. When asked if the incident

4

Docket No. 16-0342 (issued July 26, 2016).

2

as described by appellant was the competent medical cause of her injury/illness, Dr. Xiao checked
the box marked “yes.”
In a July 9, 2014 Form CA-20, Dr. Michael Hearns, Board-certified in occupational
medicine, diagnosed traumatic neck pain, headaches, bilateral shoulder pain, and chest wall pain.
He noted that the injury occurred on March 19, 2014 when appellant was hit by a gate at her job.
Dr. Hearns checked the box marked “no” when asked if the condition was caused or aggravated
by the employment incident.
By decision dated July 25, 2014, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish an injury because she had not submitted medical evidence
containing a diagnosis in connection with the accepted March 19, 2014 employment incident. It
noted that the medical evidence submitted contained a diagnosis of “pain” which is a symptom,
but not a diagnosed medical condition.
On August 11, 2014 appellant requested review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
In support of her claim, appellant submitted medical reports dated March 19, 2014 by
Dr. Resa Lewiss, Board-certified in emergency medicine. Dr. Lewiss reported that appellant was
at work when a gate hit her on the nose and left shoulder. She diagnosed contusion at multiple
sites and noted the external cause of injury as accident on industrial premises.
Handwritten treatment notes dated March 26 through August 13, 2014 were also
submitted. While many of the reports did not contain a legible signature, it appears that some of
the reports were signed by Mr. Mullin.
In a June 5, 2014 diagnostic report, Dr. Belfi reported that an x-ray of the
acromioclavicular (AC) joint, facial bones, left shoulder, right shoulder, chest, and lumbar spine
revealed no acute fracture or dislocation.
In an August 11, 2014 Form CA-20, Dr. Hearns diagnosed herniated disc of the neck and
back. He checked the box marked “no” when asked if the conditions were caused or aggravated
by the employment activity, noting that appellant was hit by a gate.
In a September 26, 2014 report, Dr. Puneet S. Pawha, a Board-certified diagnostic
radiologist, provided findings pertaining to a magnetic resonance imaging (MRI) scan of the
cervical spine.
In an October 9, 2014 report, Dr. Houman Danesh, Board-certified in physical medicine
and rehabilitation, diagnosed cervical radiculopathy and left shoulder impingement.
By decision dated February 18, 2015, OWCP’s hearing representative affirmed the July 25,
2014 decision finding that the evidence of record failed to provide a medical diagnosis which could
be reasonably attributed to the March 19, 2014 employment incident.
On June 25, 2015 appellant, through counsel, requested reconsideration. Counsel argued
that the medical reports submitted were not properly considered or developed by OWCP and that
they established that her injury was causally related to the March 19, 2014 employment incident.
3

He referenced Dr. Xiao’s June 19, 2014 report as the basis for his claim. Counsel noted that the
physician provided a diagnosis of cervicalgia and also established that the diagnosed medical
condition was causally related to the work injury. No other evidence was submitted with his
arguments.
By decision dated November 3, 2015, OWCP denied appellant’s request for
reconsideration finding that she neither raised substantive legal questions nor included relevant
and pertinent new evidence.
On December 16, 2015 appellant, through counsel, appealed to the Board. By decision
dated July 26, 2016, the Board affirmed the November 3, 2015 decision finding that OWCP
properly denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).5
On May 8, 2017 appellant requested reconsideration of the claim before OWCP.
In support of her claim, appellant submitted medical reports dated November 23 and
December 10, 2015 from Dr. Stephen Silver, a Board-certified orthopedic surgeon. Dr. Silver
described the March 19, 2014 employment incident when she was walking into work through two
gates when the second gate fell and hit her hard; crushing her chest, head, and face. Appellant had
sought treatment for her conditions, but complained of continued neck and shoulder pain.
Dr. Silver reviewed diagnostic testing pertaining to the bilateral shoulders and recommended right
and left shoulder arthroscopy. A December 4, 2015 MRI scan of the right and left shoulder was
provided.
In a January 14, 2016 operative report, Dr. Silver noted a preoperative diagnosis of left
shoulder impingement, AC joint degenerative joint disease, and labral tear. He reported a
postoperative diagnosis of superior labrum complex tear, subacromial bone spur, and AC joint
spur. Appellant underwent surgical arthroscopy of the left shoulder, debridement, biceps tenotomy
of detached superior labrum, subacromial decompression, and distal clavicle excision.
In a June 8, 2017 operative report, Dr. Silver noted that he had performed appellant’s right
shoulder arthroscopy for the diagnosed conditions of right shoulder superior labral tear from
anterior to posterior, impingement, and AC joint degenerative joint disease.
By decision dated November 16, 2017, OWCP reviewed the merits of the claim, but denied
modification of its prior decision, finding that the evidence of record failed to provide a medical
diagnosis which could be reasonably attributed to the March 19, 2014 employment incident.
On February 2, 2018 appellant requested reconsideration.
In support of her claim, appellant submitted a January 19, 2018 narrative report from
Dr. Silver. Dr. Silver reported that she was under his care for treatment of left and right shoulders
due to a work-related injury in March 2014. He reported first evaluating appellant on
November 23, 2015 for a consultation when she was diagnosed with impingement of both
shoulders, indicating partial rotator cuff and labral tears. Dr. Silver explained that her conditions

5

Supra note 2.

4

required left and right shoulder surgery. He opined that appellant’s conditions were causally
related to her March 19, 2014 employment incident.
By decision dated May 1, 2018, OWCP affirmed the November 16, 2017 decision, as
modified, finding that the evidence of record established a diagnosed medical condition. It denied
the claim, however, for failing to establish that the diagnoses were causally related to the accepted
March 19, 2014 employment incident.
On March 20, 2019 appellant, through counsel, requested reconsideration of the May 1,
2018 decision. Counsel submitted a January 28, 2019 medical report from Dr. Silver in support
of the claim.
In his January 28, 2019 report, Dr. Silver described appellant’s March 19, 2014
employment incident. He discussed her course of treatment while under his care since
November 23, 2015, reviewed diagnostic studies, and summarized the results of her left and right
shoulder arthroscopy. Dr. Silver opined that appellant suffered an injury on March 19, 2014 when
a gate fell on top of her, injuring both shoulders. He reported that his examination findings and
the MRI scans were consistent with bilateral shoulder labral tears and impingement which was
trauma induced. Dr. Silver further noted that appellant underwent arthroscopy of the left shoulder
on January 14, 2016 and the right shoulder on June 8, 2017, which confirmed the labral tears and
impingement diagnoses. He opined that the injuries to both shoulders as described in his report
were directly and causally related to the employment injury suffered on March 19, 2014.
By decision dated March 25, 2019, OWCP denied modification of the May 1, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

5

component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve.11 The opinion of the physician must be based on a complete factual and
medical background, 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 incident.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed conditions were causally related to the accepted March 19, 2014 employment incident.13
The record reflects that following the March 19, 2014 employment incident appellant was
seen by Dr. Lewiss in a hospital emergency room. Dr. Lewiss’ March 19, 2014 hospital report
documented appellant’s history of injury, immediate medical treatment following the injury, and
noted diagnoses of multiple site contusions. However, she merely repeated the history of injury
as reported by appellant, without providing her own opinion regarding whether appellant’s
condition was work related. The mere recitation of patient history does not suffice for purposes
of establishing causal relationship between a diagnosed condition and the employment incident.14
Appellant was then treated by Drs. Clark and Xiao. Dr. Clark’s April 29, 2014 progress
note and Dr. Xiao’s reports dated June 18 through 29, 2014 lack probative value as these reports
failed to provide a firm medical diagnosis which could be related to the employment incident.15
While Dr. Xiao’s reports noted pain, backache and cervicalgia, pain and cervicalgia are considered
symptoms, not diagnoses and do not constitute a basis for payment of compensation.16
Dr. Hearns’ July 9 and August 11, 2014 form reports also do not provide support for a
work-related injury as he diagnosed herniated disc of the neck and back and checked the box
marked “no” when asked if the condition was caused or aggravated by the employment incident
when appellant was hit by a gate. As he does not relate her conditions to the March 19, 2014
employment incident, his reports are of no probative value.17

9

Elaine Pendleton, 40 ECAB 1143 (1989).

10

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

11

See K.C., Docket 17-1693 (issued October 29, 2018); Robert G. Morris, 48 ECAB 238 (1996).

12

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

13

R.V., Docket No. 18-1037 (issued March 26, 2019).

14

J.G., Docket No. 19-1116 (issued November 25, 2019); see J.G., Docket No. 17-1382 (issued October 18, 2017).

15

A.B., Docket No. 18-0577 (issued October 10, 2018).

16

T.G., Docket No. 19-09904 (issued November 25, 2019); P.H., Docket No. 07-1016 (issued August 15, 2007).

17

See P.D., Docket No. 18-1461 (issued July 2, 2019).

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While the October 9, 2014 report of Dr. Danesh provided a diagnosis of cervical
radiculopathy and left shoulder impingement, his opinion is of no probative value as he did not
provide a history of injury and he failed to provide an opinion on the cause of appellant’s
condition.18 The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value.19
OWCP also received medical reports dated November 23, 2015 through January 28, 2019
from Dr. Silver. Dr. Silver diagnosed bilateral shoulder impingement and labral tears, which he
opined were causally related to the March 19, 2014 employment incident. The Board finds that
the reports of Dr. Silver are not well-rationalized.20 While Dr. Silver provided a firm medical
diagnosis pertaining to the shoulders, he failed to provide a sufficient explanation, based on
medical rationale, on the cause of appellant’s condition, only generally noting that the labral tears
and impingement were trauma-induced.21 The Board has held that medical evidence that does not
offer supporting rationale regarding the cause of an employee’s condition is of limited probative
value.22 Dr. Silver’s general statement on causation failed to provide a sufficient explanation as
to the mechanism of injury pertaining to this traumatic injury claim, namely, how a falling gate
would cause tears and impingement to both shoulders.23 Without providing a rationalized opinion
explaining how physiologically the accepted employment incident caused or contributed to the
diagnosed conditions, his opinion is of limited probative value.24 As such, Dr. Silver’s report is
insufficient to meet appellant’s burden of proof.25
While OWCP also received a number of diagnostic studies, the Board has held that
diagnostic studies lack probative value as they do not address whether the employment incident
caused any of the diagnosed conditions.26 Such reports are therefore insufficient to establish
appellant’s claim.

18

K.G., Docket No. 18-1691 (issued May 1, 2019).

19
M.V., Docket No. 18-1132 (issued September 16, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).
20

R.C., Docket No. 19-0376 (issued July 15, 2019).

21

H.A., Docket No. 18-1466 (issued August 23, 2019).

22

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

23

See T.H., Docket No. 18-1736 (issued March 13, 2019); R.R., Docket No. 16-1901 (issued April 17, 2017).

24

D.W., Docket No. 19-0968 (issued October 9, 2019).

25

K.L., Docket No. 18-1018 (issued April 10, 2019).

26

F.D., Docket No. 19-0932 (issued October 3, 2019).

7

The physician assistant notes are also of no probative value. Such healthcare providers are
not considered “physician[s]” as defined under FECA.27 Consequently, their medical findings
and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.28
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between the March 19, 2014 employment incident and appellant’s diagnosed
conditions.29 Thus, appellant has not met her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed conditions were causally related to the accepted March 19, 2014 employment incident.

27

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. K.C., Docket No. 19-0834 (issued October 28, 2019); E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
28

N.B., Docket No. 19-0221 (issued July 15, 2019).

29

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

8

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Island City, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2153
Issued: May 19, 2014

Case Submitted on the Record

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

JURISDICTION
On September 23, 2013 appellant, through his attorney, filed a timely appeal from the
June 10, 2013 merit decision and August 14, 2013 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s compensation to zero
for failing to cooperate with the early stages of vocational rehabilitation efforts; and (2) whether
OWCP properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board.2 In a November 9, 2012 decision, the
Board reversed a March 6, 2012 OWCP decision and remanded the claim for further medical
development. The Board found that a conflict of medical opinion existed between OWCP’s
referral physician and appellant’s treating physician regarding his work restrictions and whether
his nonaccepted right carpal tunnel condition impacted his ability to work or to participate in
vocational rehabilitation. The Board instructed OWCP to refer appellant to a referee physician
to resolve the conflict of opinion.3 The facts of the case as set forth in the Board’s prior decision
are incorporated herein by reference.
On December 7, 2012 OWCP referred appellant to a referee physician, Dr. Robert W.
Elkins, a Board-certified orthopedic surgeon. In a January 23, 2013 report, Dr. Elkins reviewed
the record, including the history of appellant’s injury and treatment. On examination the neck
revealed limited range of motion on flexion, extension, right tilt, left tilt, right turn and left turn.
Right shoulder range of motion was normal and the left shoulder had range of motion deficits on
abduction, internal rotation, external rotation, flexion and extension. Appellant had diminished
strength testing using the Jamar Hand Dynamometer for the right hand, negative compression
testing of the head and neck for radiculopathy, negative impingement, no tenderness of the neck,
shoulder, scapula, forearm, or trigger points, intact and equal sensation, 4/5 grip strength on the
right and 3/5 on the left, biceps jerks were +2 and brachioradialis was +1. He refused to
complete a questionnaire on his past medical history, a pain diagram, pain questionnaire or selfrating depression scale.
Dr. Elkins diagnosed prior left shoulder impingement and rotator cuff tendinitis with
September 14, 2004 surgery for subacromial decompression, partial distal clavicle excision,
rotator cuff debridement, labral debridement, chondromalacia of the glenohumeral joint, partial
rotator cuff tear and mild carpal tunnel syndrome. He opined that based on the objective
findings appellant could do sedentary work, no overhead work, a lifting restriction of an
occasional 10 pounds and no repetitive motion with the left arm. Dr. Elkins found that appellant
could participate in vocational rehabilitation despite his diagnoses of right carpal tunnel
syndrome and or left carpal tunnel syndrome. He advised that appellant appeared to have more
subjective complaints than objective findings, but his objective findings corroborated the
subjective complaints. In a work capacity evaluation, Dr. Elkins noted that appellant could not
work his usual job but could perform sedentary work eight hours per day with restrictions on
reaching above the shoulder, repetitive movements of the left wrist and elbow and eight hours of
lifting limited to an occasional 10 pounds.
2

On May 17, 2003 appellant a letter carrier, had pain in his neck, shoulder and left arm as he pushed his mail
cart. OWCP accepted his claim for left shoulder sprain and neck strain and expanded his claim to include left
rotator cuff strain/sprain and tear, left carpal tunnel syndrome and cervical radiculitis. Appellant stopped work on
May 20, 2003, returned to full-time light duty on May 23, 2003 and stopped completely on September 4, 2004. He
was paid wage-loss compensation.
3

Docket No. 12-972 (issued November 9, 2012). The Board found that a conflict of medical opinion existed
between OWCP’s referral physician, Dr. Richard Steinfeld, an orthopedic surgeon, who opined that appellant could
work full time with restrictions and Dr. Sanjay B. Shah, an internist, who determined that appellant could not return
to work full time but could work one hour per day with restrictions.

2

In a letter dated February 26, 2013, OWCP advised appellant that based on Dr. Elkins
opinion he was being referred to vocational rehabilitation services.
On March 5, 2013 OWCP referred appellant for vocational rehabilitation. In a March 15,
2013 vocational rehabilitation report, the rehabilitation counselor noted calling appellant on
March 12 and 13, 2013 and leaving messages to schedule an initial interview. On March 13,
2013 she sent an appointment letter to him to meet on March 18 or 19, 2013. The rehabilitation
counselor advised that meeting with her represented compliance with OWCP requirements but
did not commit appellant to return to work. On March 14, 2013 she received a telephone call
from appellant’s attorney that appellant was not able to participate in vocational rehabilitation
per his physician. In a March 22, 2013 status report, the rehabilitation counselor noted that
appellant’s case was in interrupted status as he had not agreed to participate in rehabilitation
efforts or to meet with the assigned rehabilitation counselor.
On April 17, 2013 OWCP notified appellant that he was impeding vocational
rehabilitation efforts. It advised that failure to participate in the essential preparatory efforts of
vocational rehabilitation (such as interviews, testing, counseling, guidance and work evaluation)
without good cause would be construed as a refusal to apply for or undergo rehabilitation.
OWCP notified appellant that 5 U.S.C. § 8113(b) provided that, if he without good cause failed
to apply for and undergo vocational rehabilitation when directed, OWCP could reduce
prospectively his compensation based on what probably would have been his wage-earning
capacity had he not failed to undergo vocational rehabilitation. Appellant was provided 30 days
to submit evidence and argument if he felt that he had good reason for not participating in
rehabilitation. OWCP advised him that, after any response was evaluated, further action would
be taken without additional notice. If appellant did not comply with the instructions within 30
days, the rehabilitation effort would be terminated and his compensation reduced.
On April 23, 2013 appellant’s attorney asserted that appellant’s failure to participate in
vocational rehabilitation was based on good cause as he could not medically undergo
rehabilitation or return to gainful employment. Appellant contended that Dr. Elkins’ report
lacked medical rationale and did not constitute the weight of the medical evidence. He asserted
that Dr. Elkins did not consider his additional nonwork-related conditions, including
degenerative cervical spine changes, C4-6 osteophytes, C4-7 disc space narrowing, C6-7 disc
bulges and C2-3 left neural foraminal narrowing. Appellant stated that these conditions must be
considered in evaluating the suitability of vocational rehabilitation efforts.
Appellant submitted a May 3, 2013 report from Dr. Shah, who noted the May 17, 2003
work injury of pushing a mail cart and left side and neck pain. Dr. Shah treated appellant on
multiple occasions and diagnosed cervicalgia, bilateral forearm pain and back pain. A
September 21, 2010 nerve conduction study confirmed that the carpal tunnel was affecting
sensory and motor components, therefore, causing numbness in both forearms, not allowing
appellant to have normal feeling and leaving him at times unable to grasp objects without
dropping them. X-rays of appellant’s neck and back confirmed the diagnoses of back and neck
pain including a September 14, 2009 back x-ray, which revealed moderate degenerative changes
with disc narrowing in the L1, L2 and L3. Dr. Shah noted that appellant had a history of left
rotator cuff tear with surgical repair and continued to have pain with movement in the shoulder
area after the surgery. He opined that it was because of appellant’s extensive health history and
3

ongoing medical issues that he remained unable to work. Dr. Shah noted that appellant
continued to have pain in the neck, arms and hands and required pain medication. He opined
that appellant must avoid lifting over 15 pounds, pulling more than 15 pounds, prolonged
standing more than 15 pounds and prolonged sitting more than 15 minutes as this aggravates his
medical condition. Dr. Shah stated that appellant was permanently disabled from his work
injuries and was not a good candidate for vocational rehabilitation due to bilateral arm numbness
related to carpal tunnel syndrome as well as cervicalgia and back pain.
In a June 10, 2013 decision, OWCP reduced appellant’s compensation to zero finding
that he had failed to participate in the early but necessary vocational rehabilitation efforts, which
would permit OWCP to determine his wage-earning capacity. It found that vocational
rehabilitation efforts would have returned him to work at the same or higher wages than the
position he held when injured. Appellant was advised that this reduction would continue until he
underwent the vocational testing or showed good cause for not complying.
In a June 12, 2013 vocational rehabilitation report, the rehabilitation counselor noted that
appellant’s case was closed as he had not agreed to contact or meet with the assigned counselor.
On July 29, 2013 appellant’s attorney requested reconsideration. He asserted that OWCP
erroneously found that appellant failed without good cause to undergo vocational rehabilitation.
Appellant contended that the report of Dr. Elkins was brief, incomplete and void of a rationale.
He stated that Dr. Elkins did not consider appellant’s additional and preexisting conditions that
were not work related including degenerative cervical spine changes, C4-6 osteophytes, C4-7
disc space narrowing, C6-7 disc bulges and C2-3 left neural foraminal narrowing. Appellant
indicated that these conditions must be considered in evaluating the suitability of vocational
rehabilitation efforts. He argued that Dr. Shah’s May 3, 2013 report supported that he could not
participate in vocational rehabilitation and OWCP did not consider this in finding that he failed
to participate in vocational rehabilitation without good cause. Appellant submitted a June 13,
2013 treatment note from Dr. Shah who treated him for right carpal tunnel syndrome with hand
pain, right thumb pain and hand tingling. Dr. Shah diagnosed backache, lumbago, sprain/strain
of the lumbar region, hypertension and osteoarthrosis.
In August 14, 2013 OWCP denied appellant’s request for reconsideration on the grounds
that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 8113(b) of FECA provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his wage-

4

earning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”4
Section 10.124(f) of OWCP’s regulations further provide:
“Pursuant to 5 U.S.C. § 8104(a), OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation.... If an employee without good
cause fails or refuses to apply for, undergo, participate in or continue participation
in the early but necessary stages of a vocational rehabilitation effort (i.e.,
interviews, testing, counseling and work evaluations), OWCP cannot determine
what would have been the employee’s wage-earning capacity had there not been
such failure or refusal. It will be assumed, therefore, in the absence of evidence to
the contrary, that the vocational rehabilitation effort would have resulted in a
return to work with no loss of wage-earning capacity and OWCP will reduce the
employee’s monetary compensation accordingly.
Any reduction in the
employee’s compensation under the provisions of this paragraph shall continue
until the employee in good faith complies with the direction of OWCP.”5
Section 8123 of FECA 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.6 When there exist 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 upon a proper factual background, must be given special
weight.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for left shoulder sprain, neck, left rotator cuff
strain/sprain and tear, left carpal tunnel syndrome and cervical radiculitis. Once it has made a
determination that an employee is totally disabled as a result of an employment injury and pays
compensation, it has the burden of justifying a subsequent reduction of benefits.8 OWCP
reduced appellant’s compensation based on his failure to participate in vocational rehabilitation.
As noted, it must initially determine the employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity.9 The
Board found a conflict in medical opinion between appellant’s treating physician, Dr. Shah, and
4

5 U.S.C. § 8113(b).

5

20 C.F.R. § 10.124(f).

6

5 U.S.C. § 8123.

7

James F. Weikel, 54 ECAB 660 (2003).

8

M.A., 59 ECAB 624, 631 (2008).

9

Id.

5

the second opinion physician, Dr. Steinfeld, as to appellant’s work restrictions and whether
appellant’s nonaccepted right carpal tunnel condition impacted his ability to participate in
vocational rehabilitation or perform a position. To resolve the conflict, it properly referred
appellant to Dr. Elkins for an impartial examination and relied on his opinion as a referee
physician to find that appellant could participate in vocational rehabilitation and return to
sedentary employment. The Board finds that it properly reduced appellant’s compensation
benefits, as he failed, without good cause, to participate in rehabilitation efforts.
The Board finds that the opinion of Dr. Elkins is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight. The Board establishes
that appellant could participate in rehabilitation services and return to work in a sedentary
position with restrictions on lifting and repetitive motion with the left upper extremity. As noted,
where there exists a conflict of medical opinion and the case is referred to an impartial specialist
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, is entitled to special weight.10
Dr. Elkins provided a thorough review of appellant’s medical treatment and examination
findings. In his January 23, 2013 report, he diagnosed prior left shoulder impingement and
rotator cuff tendinitis with surgery on September 14, 2004 for arthroscopic subacromial
decompression, partial distal clavicle excision, rotator cuff debridement, labral debridement,
chondromalacia of the glenohumeral joint, partial rotator cuff tear and mild carpal tunnel
syndrome. Dr. Elkins noted that appellant refused to provide background information and
declined to complete a questionnaire on his past medical history, a pain diagram, pain
questionnaire and self-rating depression scale. On examination, the neck revealed limited range
of motion, the left shoulder demonstrated range of motion deficits, diminished strength testing
for the right hand, with intact and equal sensation. Dr. Elkins found that based on the objective
findings he was allowed to perform sedentary work, no overhead work, a lifting restriction of an
occasional 10 pounds and no repetitive motion with the left arm. Appellant could participate in
vocational rehabilitation despite his diagnoses of right carpal tunnel syndrome and or left carpal
tunnel syndrome. Dr. Elkins noted that appellant appeared to have more subjective complaints
than objective findings, but objective findings corroborated the subjective complaints. In a work
capacity evaluation, he noted that appellant could not work his usual job but could work in a
sedentary position, eight hours per day with restrictions of no reaching above the shoulder, no
repetitive movements of the left wrists and elbow and eight hours of lifting limited to an
occasional 10 pounds.
The Board has carefully reviewed Dr. Elkin’s opinion and notes that it has reliability,
probative value and convincing quality with respect to his conclusions regarding the relevant
issue in this case. Dr. Elkin’s opinion is sufficiently rationalized and based on a proper factual
and medical history in that he reviewed the medical record and statement of accepted facts,
provided a thorough and factual medical history. His report is entitled to special weight with
regard to establishing appellant’s ability to work.

10

See supra note 7. See 5 U.S.C. § 8123(a).

6

OWCP referred appellant for vocational rehabilitation services on March 5, 2013. The
rehabilitation counselor telephoned appellant on March 12 and 13, 2013 and left messages to
schedule an initial interview. On March 13, 2013 she sent a letter to appellant requesting to meet
March 18 or 19, 2013. The rehabilitation counselor advised him that meeting with her
represented compliance with OWCP requirements but did not commit him to return to work. On
March 14, 2013 appellant’s attorney contended that appellant was not able to participate in
vocational rehabilitation. In a March 22, 2013 report, the rehabilitation counselor noted that
appellant’s case was in interrupted status as he had not agreed to participate in rehabilitation
efforts or to meet with the assigned counselor. The Board finds that OWCP properly made a
medical determination of partial disability and of specific work restrictions and referred
appellant’s case to a rehabilitation counselor.
In an April 17, 2013 letter, OWCP advised appellant that his compensation would be
reduced if he did not participate in the essential preparatory efforts of vocational rehabilitation.
Appellant was informed of the provisions of 5 U.S.C. § 8113(b) and given 30 days to participate
in vocational rehabilitation or to show good cause for not participating. On April 23, 2013
counsel asserted that appellant could not medically undergo vocational rehabilitation or return to
work. He contended that Dr. Elkins’ medical report lacked medical rationale and did not
consider the cervical spine conditions. Appellant’s complaints concerning Dr. Elkins’ report
would be more persuasive had appellant cooperated with the examination and provided requested
background information requested by the doctor. He submitted a May 3, 2013 report from
Dr. Shah, who diagnosed cervicalgia, bilateral forearm pain and back pain. Dr. Shah noted that a
September 21, 2010 nerve conduction study confirmed that the carpal tunnel was affecting
sensory and motor components, therefore, causing numbness in both forearms. He opined that
appellant was permanently disabled as a result of his injuries sustained at work and was not a
good candidate to participate in vocational rehabilitation due to numbness in the bilateral arms
related to the carpal tunnel syndrome, cervicalgia and back pain. Dr. Shah opined that it was
because of appellant’s extensive health history and ongoing medical issues that he was unable to
work. Although he noted appellant’s physical limitations and stated that he was not a good
candidate for vocational rehabilitation due to bilateral arm numbness related to carpal tunnel
syndrome as well as cervicalgia and back pain, he did not preclude participation in vocational
rehabilitation. Further Dr. Shah provided insufficient medical reasoning for his opinion. His
reports are similar to his prior reports with regard to appellant’s ability to work. The Board has
held that reports from a physician who was on one side of a medical conflict that an impartial
specialist resolved, are generally insufficient to overcome the weight accorded to the report of
the impartial medical examiner or to create a new conflict.11
The Board finds that appellant did not participate in the early but necessary vocational
rehabilitation efforts or provide good cause for not doing so. OWCP properly reduced his
compensation to zero finding that the vocational rehabilitation efforts would have returned
appellant to work at the same or higher wages than the position when injured.

11

I.J., 59 ECAB 408 (2008). The Board notes that Dr. Shah’s reports do not contain new findings or rationale
upon which a new conflict might be based.

7

LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,12 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”13
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.14
ANALYSIS -- ISSUE 2
OWCP reduced appellant’s compensation to zero as he did not participate in the early but
necessary vocational rehabilitation efforts or provide good cause for his failure to do so.
Thereafter, it denied appellant’s reconsideration request, without a merit review.
The issue presented is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his
request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. In his July 29, 2013 request, he asserted that OWCP erroneously determined that he
failed without good cause to undergo vocational rehabilitation, which was based on the report of
Dr. Elkins. Appellant contends that the report of Dr. Elkins was brief, incomplete and void of a
rationale. He reiterated that Dr. Elkins did not consider appellant’s additional conditions that
were not work related. These assertions were presented by appellant before the June 10, 2013
decision.15 They do not show a legal error by OWCP or a new and relevant legal argument.

12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.608(b).

15

See C.N., Docket No. 08-1569 (issued December 9, 2008) (evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for reopening a case).

8

Appellant also did not submit any new and relevant medical evidence in support of his
claim. He submitted a new June 13, 2013 treatment note from Dr. Shah who reported appellant’s
status. However, this report is not relevant because Dr. Shah did not address whether appellant
was able to participate in vocational rehabilitation.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation under section 5
U.S.C. § 8113(b) for failing, without good cause, to cooperate with vocational rehabilitation.
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 14 and June 10, 2013 decision of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9