United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
INTERNAL REVENUE SERVICE,
Cherry Hill, NJ, Employer
__________________________________________

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

Docket No. 08-708
Issued: September 5, 2008

Case Submitted on the Record

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

JURISDICTION
On December 31, 2007 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated March 19, October 30 and November 16, 2007.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 18, 2007; and (2) whether appellant met his burden of
proof to establish that he sustained recurrences of disability on April 5 and 20, 2007.

FACTUAL HISTORY
On February 3, 2006 appellant, then a 53-year-old investigative analyst, injured his lower
back and left arm when packing and lifting boxes while preparing for an office move.1 He
stopped work on February 8, 2006. In a March 8, 2006 report, Dr. Stuart G. Dubowitch, a
Board-certified osteopath specializing in orthopedic surgery, noted the history of injury and that
appellant recently had a nonwork-related rupture of his left triceps tendon with repair. He
advised that appellant had significant pain and spasm on examination of the lumbar spine.
Dr. Dubowitch diagnosed lumbar strain/sprain with myofasciitis and a history of prior back
injury/rule out lumbar disc pathology and recommended a magnetic resonance imaging (MRI)
scan. On April 5, 2006 the Office accepted that appellant sustained an employment-related
lumbar strain, and he was placed on the periodic rolls. A May 1, 2006 MRI scan of the lumbar
spine demonstrated degenerative changes and spondylosis.
On May 26, 2006 the Office referred appellant to Dr. Zohar Stark, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a June 8, 2006 report, Dr. Stark noted
the history of injury, his review of the medical record including the May 1, 2006 MRI scan and
appellant’s complaint of radiating low back pain. Examination of the spine demonstrated local
tenderness to palpation over the spinous processes of the lumbar vertebrae with some tenderness
over the paralumbar musculature with no spasm. Lumbar spine range of motion was resisted at
50 percent of normal. Sitting root test was negative and straight leg raising 80 degrees
bilaterally. Dr. Stark diagnosed status post lumbar strain and lower back pain secondary to
degenerative disease of the lumbar spine and noted that, as appellant had no objective findings of
the accepted condition, his employment-related condition had resolved and he had returned to his
preinjury condition. He concluded that appellant could return to his usual work as an
investigative analyst. In an attached work capacity evaluation, Dr. Stark advised that appellant
could work eight hours a day with no limitations.
By report dated June 13, 2006, Dr. Dubowitch reported that appellant continued to have
pain and spasm with radiculopathy. He advised that appellant had aggravated a preexisting back
condition and provided a work capacity evaluation with restrictions that appellant could sit for 10
to 15 minutes, stand for 30 minutes, drive to and from work for 30 to 35 minutes and had a
lifting restriction of 15 to 20 pounds.
The Office determined that a conflict in medical evidence arose between Dr. Dubowitch
and Dr. Stark regarding appellant’s continuing disability and work restrictions. On October 16,
2006 it referred him to Dr. George P. Glenn, Jr., Board-certified in orthopedic surgery, for an
impartial medical evaluation. Dr. Dubowitch submitted reports reiterating the diagnoses and
restrictions.

1

Appellant had received a promotion and was transferring from the Cherry Hill location to a new work location
in Springfield, NJ. The record also contains evidence regarding a separate umbilical hernia injury, adjudicated by
the Office under file number 022519597. The instant claim was adjudicated under file number 022512610.

2

In a November 21, 2006 report,2 Dr. Glenn reviewed the statement of accepted facts,
history of injury, history of chronic back pain, and the medical record including the May 1, 2006
MRI scan. He reported appellant’s current complaints including that he could not drive the twohour commute to work and that his work was mainly sedentary. Dr. Glenn stated that, during a
prolonged interview, appellant sat easily on the examination table, showed no outward signs of
difficulty or distress, and, although he had a tendency to move slowly, was able to heel and toe
walk with a normal gait. There was no evidence of lumbar muscle spasm or tenderness to
palpation on physical examination in the upright position. Although appellant would not
complete a squat because of low back pain, squatting was not a low back pain generator, and
axial compression did not produce complaints of low back pain. Forward flexion was limited to
75 degrees. Hyperextension, tilting and rotating were normal but produced pain with no spasm
or tenderness. Hip flexion, sitting and supine straight leg raising was normal. Calf and thigh
circumference were equal bilaterally, and motor tone and strength were excellent. Dr. Glenn
noted that the MRI scan findings of mild degenerative disease showed no evidence of acute
change and were present prior to the February 3, 2006 employment injury. He advised that
appellant had subjective complaints of constant low back pain but no evidence of muscle spasm
and no objective findings in terms of spasm, specific lumbar muscle tenderness, positive
provocative tests with a normal neurologic evaluation, and that appellant had returned to his
preinjury condition, had long since reached maximum medical improvement, and could return to
his usual work activity. Dr. Glenn stated that he would have difficulty justifying driving
restrictions based on appellant’s physical findings and diagnostic studies. In an attached work
capacity evaluation, he advised that appellant could work full time without restrictions.
In reports dated December 5, 2006 and January 16 and February 27, 2007, Dr. Dubowitch
reiterated his findings and conclusions.
By letter dated February 15, 2007, the Office proposed to terminate appellant’s
compensation benefits on the grounds that he no longer had residuals or disability due to the
accepted conditions. Appellant’s attorney disagreed with the proposed termination.
In a decision dated March 19, 2007, the Office terminated appellant’s compensation
effective March 18, 2007.
On April 5, 2007 appellant requested a hearing and submitted reports dated April 11 to
July 18, 2007 from Dr. Dubowitch who repeated his diagnoses and restrictions. Dr. Dubowitch
noted that appellant’s commute should be limited to 30 to 35 minutes and advised that he did not
anticipate further improvement.3 In a May 1, 2007 report, Dr. Moshen Kalliny, Board-certified
in anesthesiology and pain medicine, noted appellant’s complaints of worsening radiating back
pain and that he had recently been in a motor vehicle accident. Physical examination
demonstrated tenderness in the lumbar spine with a positive straight leg raising and diminished
2

On January 25, 2007 Dr. Glenn advised that page 19 of his November 21, 2006 report contained a typographical
error, and he submitted an amended report.
3

Appellant also submitted a March 8, 2007 report with an illegible signature that included diagnoses of lumbar
myofascial pain and lumbar discogenic disease, and in a July 29, 2007 report, Dr. Richard B. Wise, a Board-certified
ophthalmologist, noted a history of recurrent uveitis with a recent flare-up on the left.

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sensation to pinprick. Dr. Kalliny reviewed the May 1, 2006 MRI scan, diagnosed lumbar disc
herniation, lumbar radiculopathy and lumbar facet arthropathy from L3 to S1, and recommended
epidural steroid injections.
On May 27, 2007 appellant submitted a Form CA-2, occupational disease claim, alleging
that he sustained employment-related anxiety and depression due to the physical damage to his
body. In a June 12, 2007 report, Robert Chorney, Psy.D., noted that appellant had been a patient
for two years and reported that he complained that his two-hour commute to work exacerbated
his back pain. He diagnosed adjustment disorder with depressed mood which was work related.
Dr. Chorney stated that appellant’s employers failed to provide a reasonable accommodation and
shorten his commute. He recommended medical leave. On July 18, 2007 Dr. Chorney advised
that appellant could not work for an undetermined period due to a work-related psychological
condition. On August 8, 2007 he advised that, although appellant had improved, he should
continue off work.
At the August 9, 2007 hearing, appellant testified that he returned to work in March 2007
but the two-hour commute caused his symptoms to return and he could not concentrate and was
tired at work due to pain. On August 29, 2007 Dr. Chorney advised that staying off work
improved appellant’s psychologic functioning but that he should remain off work, at least until
September 12, 2007.
On August 11, 2007 appellant filed two recurrence claims, alleging that he sustained
recurrences of disability on April 5 and 20, 2007, stating that residual pain from his back strain
and an inguinal hernia prevented him from commuting to work and caused stress and anxiety.4
In letters dated September 4 and 5, 2007, the Office informed appellant of the evidence needed to
support his recurrence claims. In a September 5, 2007 report, Dr. Dubowitch advised that
appellant’s condition was essentially unchanged and that the two-hour commute to work was
excessive. He indicated that appellant could drive for approximately one hour.
By decision dated October 30, 2007, an Office hearing representative affirmed the
March 19, 2007 termination decision with regard to appellant’s accepted back condition. He
remanded the case to the Office for further development regarding whether appellant had
developed a consequential emotional condition causally related to the February 3, 2006
employment injury. In a November 16, 2007 decision, the Office denied that appellant sustained
recurrences of disability on April 5 and 20, 2007 due to his accepted lumbar strain.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.5 The Office’s burden of proof in terminating compensation includes the necessity

4

Appellant reported that he had surgical repair of the hernia on January 29, 2007.

5

Jaja K. Asaramo, 55 ECAB 200 (2004).

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of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.6
Section 8123(a) of the Federal Employees’ Compensation Act7 provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.8
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 18, 2007. The Office determined that a conflict in the
medical evidence arose between the opinions of appellant’s attending physician Dr. Dubowitch
and Dr. Stark, who provided a second opinion evaluation for the Office, regarding appellant’s
continuing disability and work restrictions. It properly referred appellant to Dr. Glenn, Boardcertified in orthopedic surgeon, for an impartial evaluation.9
In a comprehensive report dated November 21, 2006, Dr. Glenn described the
February 8, 2006 employment injury and his review of the medical record including MRI scan
findings of mild degenerative disease which, he opined, were present prior to the employment
injury. He reported appellant’s complaints of radiating back pain and provided findings on
physical examination. Dr. Glenn advised that, while appellant had subjective complaints of
constant low back pain, he had no objective findings in terms of spasm, specific lumbar muscle
tenderness, or positive provocative tests, and had a normal neurologic evaluation, and that he had
long since reached maximum medical improvement and had returned to his preinjury condition.
He specifically stated that he would have difficulty justifying driving restrictions based on
appellant’s physical findings and diagnostic studies, and concluded that appellant could return to
his usual full-time work without restrictions.
In additional reports dated December 5, 2006 to February 27, 2007, Dr. Dubowitch
reiterated his previous conclusions and recommendations, including that appellant could only
drive for 30 to 35 minutes daily. A subsequently submitted report of a physician on one side of a
resolved conflict of medical opinion is generally insufficient to overcome the weight of the
impartial medical specialist or to create a new conflict of medical opinion.10 The Board finds
that Dr. Dubowitch’s medical opinion is insufficient to overcome the special weight accorded
Dr. Glenn as an impartial medical specialist. In a June 12, 2007 report, Dr. Chorney, a
psychologist, diagnosed adjustment disorder and advised that appellant could not work due to the
failure of his employer to provide a reasonable accommodation that would shorten his commute
6

Id.

7

5 U.S.C. §§ 8101-8193.

8

5 U.S.C. § 8123(a).

9

Id.

10

Richard O’Brien, 53 ECAB 234 (2001).

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which exacerbated his back pain. This report is relevant to appellant’s claim for a consequential
emotional condition that is under development by the Office. The record before the Board does
not contain a final decision regarding this claim, and the Board’s jurisdiction is limited to
reviewing final decisions of the Office.11
Dr. Glenn provided a comprehensive, well-rationalized evaluation in which he clearly
advised that any residuals of appellant’s employment-related back condition had resolved. His
opinion is entitled to the special weight accorded an impartial examiner and therefore constitutes
the weight of the medical evidence that appellant had no residuals of his accepted lumbar
strain.12 The Office therefore properly terminated appellant’s compensation benefits effective
March 18, 2007.
LEGAL PRECEDENT -- ISSUE 2
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.13 A recurrence of medical condition means a documented need for
further medical treatment after release from treatment for the accepted condition or injury when
there is no accompanying work stoppage. Continuous treatment for the original condition or
injury is not considered a “need for further medical treatment after release from treatment,” nor
is an examination without treatment.14
The employee has the burden of establishing by the weight of reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury and
should submit a detailed medical report.15
ANALYSIS -- ISSUE 2
The Board finds that appellant did not meet his burden of proof to establish that he
sustained recurrences of disability on April 5 and 20, 2007. Appellant failed to submit
contemporaneous medical evidence establishing that he became disabled due to residuals of his
accepted lumbar strain. By letters dated September 4 and 5, 2007, the Office informed appellant
of the evidence needed to establish his recurrence claims. The May 1, 2007 report from
Dr. Kalliny did not advise that appellant was disabled for work or provide an opinion on the
cause for the diagnosed condition. Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal

11

20 C.F.R. § 501.2(c); Karen L. Yaeger, 54 ECAB 323 (2003).

12

See Sharyn D. Bannick, 54 ECAB 537 (2003).

13

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

14

20 C.F.R. § 10.5(y); see Mary A. Ceglia, 55 ECAB 626 (2004).

15

20 C.F.R. § 10.404(b).

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relationship.16 Appellant also submitted the reports of Dr. Dubowitch who repeated his prior
findings and recommendations. Dr. Dubowitch stated that appellant should only drive 30 to 35
minutes. In his November 21, 2006 report, the referee physician, Dr. Glenn, specifically
addressed this issue, stating that, based on appellant’s physical findings and diagnostic studies,
he would have difficulty justifying driving restrictions. Thus Dr. Dubowitch’s reports are
insufficient to establish appellant’s recurrence claim. Appellant also submitted a number of
reports from Dr. Chorney, psychologist, who advised that beginning in July 2007 he should not
work due to a work-related emotional condition. As noted appellant’s emotional condition claim
is under development by the Office. The Board therefore finds that appellant did not submit
sufficient medical evidence to establish that he sustained a recurrence of disability on April 5 or
20, 2007 causally related to his accepted lumbar strain.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 18, 2007, and that appellant did not establish that he
sustained recurrences of disability on April 5 or 20, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 16 and October 30, 2007 be affirmed.
Issued: September 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
FORT BLISS NATIONAL CEMETERY,
El Paso, TX, Employer
__________________________________________

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

Docket No. 12-1176
Issued: August 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 7, 2012 appellant filed a timely appeal from a January 23, 2012 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 this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on January 23, 2012 on the grounds that he no longer had residuals of the
accepted lumbar condition.
On appeal he generally contends that the termination was in error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 25, 1991 OWCP accepted that appellant, then a 42-year-old cemetery caretaker,
sustained a lumbar strain on February 20, 1991 when lifting headstones.2 Appellant was placed
on the periodic compensation rolls and the accepted condition was expanded to include herniated
disc at L4-5 and postlaminectomy syndrome.
Appellant returned to work as an information receptionist on May 1, 1995. By decision
dated October 24, 1995, OWCP found that his actual earnings as an information receptionist
fairly and reasonably represented his wage-earning capacity and reduced his compensation
accordingly. Appellant was terminated in December 1995. On September 23, 1996 OWCP
denied appellant’s request for merit review of the October 24, 1995 decision.3 Appellant
continued to receive compensation, based on his wage-earning capacity and medical treatment
for his accepted conditions.4
In a November 29, 2010 report, Dr. John Dahill, an attending orthopedic surgeon, noted a
history that appellant injured his back when working in 1991. He described appellant’s
complaint of back pain and left leg numbness. Examination of the back demonstrated no
lumbar/sacral tenderness, spasticity or bony/soft tissue abnormality. Appellant could bend
forward to the mid-lower leg level. Patrick, Gaenslen and pelvic tilt tests were negative. Motor
and sensory examinations were normal. A pelvis x-ray was normal. Lumbar spine x-ray
demonstrated facet arthropathy of the bilateral L4-5 and L5-S1 facets and grade 1
spondylolisthesis of L4-5. Dr. Dahill diagnosed lumbago, lumbar radiculopathy and lumbar
spondylolisthesis.
On April 28, 2011 OWCP referred appellant to Dr. Randy J. Pollet, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a May 17, 2011 report, Dr. Pollet
reviewed the statement of accepted facts and medical record, and noted appellant’s complaint of
pain, swelling, weakness, stiffness and inflammation of the low back that was dull, constant,
moderate-to-severe and made worse with activity. He noted that appellant was 100 percent
disabled due to a military service-connected post-traumatic stress disorder and had chronic renal
failure. Dr. Pollet reported that appellant ambulated with some difficulty. Range of motion was
slightly painful but adequate and straight leg raising and hamstring spasm tests were negative in
the sitting position. Mild low back tenderness was noted. A lumbar spine x-ray demonstrated
age-related degenerative joint and disc changes, age-related degenerative spondylolisthesis at
L4-5 and age-related spinal stenosis. Dr. Pollet diagnosed resolved lumbar sprain/strain of
February 20, 1991, age-related degenerative joint disease and disc disease with L4-5 age-related
degenerative spondylolisthesis and spinal stenosis with spinal instability. In answer to specific
OWCP questions, he found that there was no objective evidence to support that appellant was
disabled as a result of the lumbar strain of February 20, 1991 and there were no objective
2

Appellant was dismissed from the employing establishment for cause on July 3, 1991.

3

In a July 15, 1996 decision, OWCP denied appellant’s request for a hearing on the grounds that it was not timely
filed.
4

On November 27, 2007 Dr. Alfonso Chavez, a nephrologist, advised that appellant was under his care for endstage renal disease and required dialysis three times weekly.

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evidence to support that he was presently disabled as a result of an intervertebral disc disorder
with myelopathy or from post-laminectomy syndrome as a result of the February 20, 1991 work
injury. Dr. Pollet found no objective residuals from the February 20, 1991 work injury that
would render appellant totally disabled from all work, and that there were no significant
residuals of the injury. He advised that appellant could return to full duty as related to the
February 20, 1991 employment injury.
In a letter dated December 9, 2011, OWCP proposed to terminate appellant’s monetary
compensation on the grounds that the medical evidence, as characterized by Dr. Pollet’s report,
established that he no longer had residuals or disability due to the February 20, 1991
employment injury. Appellant did not respond.
By decision dated January 23, 2012, OWCP finalized the termination of wage-loss
compensation, effective that day.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits on January 23, 2012. The accepted conditions in this case are a lumbar
strain, a herniated disc at L4-5 and postlaminectomy syndrome.7
Appellant received compensation based on a loss of wage-earning capacity determination
in 1994. The Board has established that once the wage-earning capacity of an injured employee
is determined, a modification of such determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee has been retrained
or otherwise vocationally rehabilitated or the original determination was, in fact, erroneous.8
The burden of proof is on the party attempting to show a modification of the wage-earning
capacity determination.9 In certain situations, however, if the medical evidence is sufficient to
meet OWCP’s burden of proof to terminate benefits, the same evidence may also negate a loss of
wage-earning capacity such that a separate evaluation of the existing wage-earning capacity
5

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Id.

7

As noted by Dr. Pollet, appellant has not had back surgery.

8

Stanley B. Plotkin, 51 ECAB 700 (2000).

9

Id.

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determination is unnecessary.10 OWCP’s burden to demonstrate no further disability is
effectively the same, irrespective of whether there is an existing determination in place finding
loss of earning capacity. Case law may suggest that a threshold evaluation of the wage-earning
capacity needs to be performed before there is a termination of benefits. The burden, however, is
often substantially the same, the evidence is the same and the process of terminating benefits
need only be done once.11 While a claimant may still have unrelated medical conditions or
impairments, as in this case, the medical evidence must establish that the employment-related
disability and medical conditions no longer exist.
The medical evidence most contemporaneous with the January 23, 2012 termination
includes Dr. Dahill’s November 29, 2010 report.12 Dr. Dahill stated that appellant’s back pain
began in 1991 when he was lifting stones at work and had continued since that time.
Examination findings included no lumbar/sacral tenderness, spasticity or bony/soft tissue
abnormality. Dr. Dahill advised that appellant could bend forward to the mid-lower leg level,
and that Patrick’s, Gaenslen’s and pelvic tilt tests were negative, and motor and sensory
examinations were normal. He diagnosed lumbago, lumbar radiculopathy and lumbar
spondylolisthesis, none of which are accepted conditions. Dr. Dahill did not discuss the accepted
conditions or appellant’s ability to work.
Dr. Pollet, an OWCP referral physician, provided a May 17, 2011 report, which noted his
review of the statement of accepted facts and medical record and appellant’s complaint of
constant dull, moderate-to-severe pain, weakness and stiffness of the low back that was made
worse with activity. He indicated that appellant ambulated with some difficulty and physical
examination demonstrated slightly painful but adequate range of motion with mild low back
tenderness. Straight leg raising and hamstring spasm tests were negative in the sitting position.
Dr. Pollet reviewed x-ray findings and diagnosed resolved lumbar sprain/strain that occurred on
February 20, 1991, age-related degenerative joint disease and disc disease with L4-5 age-related
degenerative spondylolisthesis and spinal stenosis with spinal instability. He responded to
OWCP questions, advising that there was no objective evidence to support that appellant was
disabled as a result of the lumbar strain, an intervertebral disc disorder with myelopathy, or of
postlaminectomy syndrome as a result of the February 20, 1991 employment injury. Dr. Pollet
indicated that there were no significant residuals of the injury and advised that appellant could
return to full duty as related to the February 20, 1991 work injury.
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
10

A.P., Docket No. 08-1822 (issued August 5, 2009). There may exist a situation where a separate analysis
would be necessary, based on preexisting conditions or other medical conditions, but that situation does not present
itself in this case. Should those particular facts arise, this decision does not preclude a further consideration of the
matter.
11

Id.

12

The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence.
S.S., 59 ECAB 315 (2008).

4

the physician’s opinion are facts, which determine the weight to be given to each individual
report.13 The Board finds that OWCP properly determined that the weight of the medical
opinion evidence rested with the opinion of Dr. Pollet who provided a comprehensive report in
which he outlined examination findings and provided a rationalized explanation for his opinion
that appellant’s accepted lumbar conditions had resolved. OWCP therefore met its burden of
proof to terminate appellant’s compensation benefits on January 23, 2012.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s monetary
compensation on January 23, 2012.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

Michael S. Mina, 57 ECAB 379 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Drum, NY, Employer
__________________________________________

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

Docket No. 12-1151
Issued: November 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 2, 2012 appellant, through his attorney, filed a timely appeal from a March 28,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating his
compensation. 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.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits for
refusal of suitable work under 5 U.S.C. § 8106(c)(2).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the March 28, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant’s attorney contends that appellant was justified in declining the
offered position as he is medically unable to return to work due to his paranoid schizophrenia.
FACTUAL HISTORY
On December 18, 2000 appellant, then a 43-year-old maintenance worker, sustained a
traumatic injury in the performance of duty while lifting buckets of paint. OWCP accepted his
claim for low back sprain. Appellant received compensation for temporary total disability on the
periodic rolls.3
In a June 1, 2011 report, Dr. Paul S. Curtis, a Board-certified orthopedic surgeon and
appellant’s treating physician, diagnosed lumbar intervertebral disc displacement without
myelopathy, spinal stenosis lumbar region, sciatica and lumbago. He opined that the incident
appellant described was the competent medical cause of his conditions.
OWCP referred appellant for a second opinion evaluation. In a June 2, 2011 report,
Dr. Marco Berard, a Board-certified orthopedic surgeon, reviewed the medical record and a
statement of accepted facts. Upon examination he diagnosed low back strain and opined that
appellant had not reached his full recovery. Dr. Berard advised that appellant should be labeled
as light duty and occasionally lift up to 20 pounds, frequently up to 10 pounds and constantly 0
pounds. He concluded that appellant could not work his regular duty as a maintenance worker
but was capable of full-time light-duty work.
Appellant submitted reports dated August 31 and December 5, 2011 by Dr. Curtis
diagnosing cervical intervertebral disc degeneration.
On December 12, 2011 the employing establishment offered appellant full-time lightduty work as a motor vehicle dispatcher. Appellant declined the offer.
By letter dated January 4, 2012, OWCP found that the offered position was suitable to the
medical limitations imposed by Dr. Berard and allowed appellant 30 days to accept or explain his
reasons for refusing.
In a January 19, 2012 letter, appellant’s attorney argued that appellant’s refusal of the
offered position was justified as he was diagnosed with paranoid schizophrenia rendering him
unemployable.
On February 6, 2012 OWCP notified appellant that it had considered all the reasons he
provided for refusing to accept the offered position and did not find them to be valid. It
explained that he had 15 additional days to accept the position or his entitlement to compensation
benefits would be terminated.

3

By decision dated March 17, 2003, OWCP found an overpayment of compensation in the amount of $639.21
because Basic Life Insurance and Optional Life Insurance were not deducted from the wage-loss compensation that
appellant received for the period February 11, 2001 to August 10, 2002.

2

Appellant submitted a February 2, 2012 report by Jonathan Ecker, MD, who stated that
he had treated appellant for paranoid schizophrenia since July 2002. He was first hospitalized
for the condition while serving in the Navy when he was 18 years old and was hospitalized many
other times after that. In August 2004, the Department of Veterans Affairs increased appellant’s
level of service-connected disability from 30 to 70 percent for paranoid schizophrenia.
Appellant was judged to be unemployable because of his psychiatric condition. According to
Dr. Ecker, appellant continued to have auditory hallucinations despite taking his medication as
prescribed. He opined that appellant was totally disabled from work due to his psychiatric
condition of paranoid schizophrenia.
By decision dated March 28, 2012, OWCP terminated appellant’s wage-loss
compensation on the grounds that he refused an offer of suitable work in violation of 5 U.S.C.
§ 8106(c)(2). It found that Dr. Berard’s report represented the weight of the medical evidence.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for him or her is not entitled to compensation.4 OWCP has authority under this section
to terminate compensation for any partially disabled employee who refuses or neglects suitable
work when it is offered. Before compensation can be terminated, however, it has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work and has the burden of establishing that a position has been offered
within the employee’s work restrictions, setting forth the specific job requirements of the
position.5 In other words, to justify termination of compensation under section 8106(c)(2),
which is a penalty provision, OWCP has the burden of showing that the work offered to and
refused or neglected by appellant was suitable.6
OWCP will make every reasonable effort to arrange for employment of a partially
disabled claimant, first with the employing establishment and then with a new employing
establishment. This effort will take into account both medical conditions which preexisted the
injury and those which arose afterwards.7
ANALYSIS
When OWCP reviewed the offered position and found it suitable, it relied on the opinion
of Dr. Berard, a second opinion orthopedic surgeon, who found appellant capable of light-duty
work. Appellant submitted a February 2, 2012 report from Dr. Ecker, who stated that he had
treated appellant for paranoid schizophrenia since July 2002. He had been hospitalized for the
4

5 U.S.C. § 8106(c)(2).

5

See Frank J. Sell, Jr., 34 ECAB 547 (1983).

6

See Glen L. Sinclair, 36 ECAB 664 (1985).

7

See J.N., Docket No. 09-1621 (issued July 14, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.3 (December 1993).

3

condition a number of times. In August 2004, the Department of Veterans Affairs increased
appellant’s service-connected disability from 30 to 70 percent. Appellant was judged to be
unemployable because of his psychiatric condition. Dr. Ecker reported that appellant continued
to have auditory hallucinations despite taking his medication as prescribed. He opined that
appellant was totally disabled from work due to his psychiatric condition of paranoid
schizophrenia.
Because the record establishes that appellant had a preexisting paranoid schizophrenia
condition that could affect his employability, it was incumbent on OWCP to determine whether
the offered position was suitable from a psychiatric viewpoint. OWCP did provide him an
opportunity to submit medical evidence to support that his preexisting condition and medications
prevented him from accepting the offer but it has the burden of proof to establish that the offered
position was suitable. This burden pertains to appellant’s accepted orthopedic or physical
conditions and to the preexisting psychiatric disorder.
OWCP did not meet its burden of proof. It developed the medical evidence only from an
orthopedic viewpoint. OWCP failed to establish that the offered position was suitable to
appellant’s preexisting psychiatric disorder. The Board finds that it has erroneously terminated
his compensation under section 8106(c)(2).8 OWCP has not established that the offered position
was, in fact, suitable based on the preexisting psychiatric condition.
The Board will reverse OWCP’s March 28, 2012 decision terminating appellant’s wageloss compensation. On return of the record, OWCP shall retroactively reinstate his
compensation.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation under 5
U.S.C. § 8106(c)(2) as it did not establish that the offered position was suitable.

8

See D.C., Docket No. 12-459 (issued August 10, 2012) (where the Board held that OWCP did not meet its
burden of proof to terminate appellant’s compensation as it failed to establish that the offered position was suitable
to his preexisting post-traumatic stress disorder).

4

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 8, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 07-1366
Issued: November 8, 2007

Case Submitted on the Record

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

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the April 16, 2007 merit decision
of the Office of Workers’ Compensation Programs, which found him at fault in creating an
overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the Office’s decision.
ISSUES
The issues are:
(1) whether appellant received a $13,824.61 overpayment of
compensation from October 24, 2005 through December 23, 2006; if so, (2) whether he was at
fault in creating this overpayment, thereby, precluding waiver; and (3) whether the Office
properly set the rate of recovery at $250.00 from continuing compensation payments.

FACTUAL HISTORY
On August 2, 2000 appellant, then a 63-year-old supply technician, filed a claim alleging
that he sustained a right leg injury in the performance of duty:
“I work as a Supply Technician in Bldg. 125. My job requires me to do a
considerable amount of walking each shift. I have to kneel and crawl locating
parts, as well as pulling and pushing trailers loaded with aircraft component parts.
My pain worsened in 1998 which caused me to seek medical treatment.”
The Office accepted appellant’s claim for a torn right meniscus.
authorized a total right knee arthroplasty.

The Office later

On October 20, 2005 appellant filed a Form CA-7 claim for wage loss beginning
October 24, 2005. The form asked: “Have you applied for or received payment under any
Federal Retirement or Disability law?” If he had, appellant was to supply the claim number, the
date his annuity began, the amount of the monthly payment and the identity of the federal
program or agency providing benefits, including the Social Security Administration (SSA).
Appellant answered “no.” He signed his name to certify that the information provided was true
and accurate to the best of his knowledge and belief.
On December 15, 2005 the Office notified appellant that he would receive compensation
for temporary total disability on the periodic rolls beginning October 24, 2005. The Office
informed him of his obligation to report certain information:
“You must also report any retirement income, disability income, or compensation
benefits from any [f]ederal agency. This is because a recipient of compensation
benefits under the Federal Employees’ Compensation Act is not permitted to
receive benefits under certain other [f]ederal programs, including the Civil
Service Retirement [System] [CSRS] program.”
On an April 4, 2006 Form EN1032, the Office asked appellant for specific information:
“Report any benefits received from the SSA which you receive as part of an annuity under the
Federal Employee’ Retirement System (FERS). DO NOT report any benefits received from the
SSA on account of employment in the private sector.” The Office informed appellant that such
information would be used to decide whether he was entitled to continue receiving compensation
benefits or whether his compensation benefits should be adjusted. On April 15, 2006 appellant
completed the Form EN1032 and answered “no” to the following: “Do you receive benefits
from the SSA as part of an annuity for [f]ederal service?”
The Office later discovered that appellant had been receiving SSA benefits since
April 2002.1 The Office advised appellant that he received dual benefits and explained that it
had to offset his compensation benefits to account for the SSA benefits he earned as a federal
employee.
1

An April 23, 2000 Notice of Personnel Action showed appellant’s retirement plan to be “FICA and CSRS
(partial).”

2

After the SSA provided information on the applicable offset amounts, the Office made a
preliminary determination that it had overpaid appellant $13,824.61 from October 24, 2005
through December 23, 2006 because it did not offset his compensation for SSA benefits. The
Office also found that appellant was at fault in creating the overpayment because he provided no
information concerning his SSA benefits despite specific instructions to do so. The Office gave
appellant 30 days to complete and submit an overpayment recovery questionnaire “so that we
may determine a fair repayment method.”
In a decision dated April 16, 2007, the Office finalized its findings on the overpayment.
The Office noted that appellant did not directly respond to the preliminary determination. As
appellant was at fault in creating the overpayment, the Office denied waiver. Considering the
fact that he was currently receiving compensation on the periodic rolls with net earnings of
$1,050.70 every 28 days, and was currently in receipt of SSA benefits each month, the Office
determined that it should recover the debt by withholding $250.00 from each of appellant’s
compensation checks beginning May 12, 2007.
On appeal, appellant disagrees with the Office’s decision to deduct money that he feels
he does not owe.
LEGAL PRECEDENT -- ISSUE 1
The Act provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.2 It places limitations on the right to
receive this compensation: “While an employee is receiving compensation under this subchapter
… he may not receive salary, pay, or remuneration of any type from the United States….”3
A beneficiary may receive compensation under the Act for disability of an employee
concurrently with benefits under Title II of the SSA on account of age or death of such
employee; however, the Office is required to reduce the amount of any such compensation by the
amount of any SSA benefits that are attributable to the federal service of the employee.4 To
determine the employee’s entitlement to compensation, the Office may require an employee to
submit an affidavit or statement as to the receipt of any federally funded or federally assisted
benefits.5
ANALYSIS -- ISSUE 1
The SSA benefit attributable to appellant’s federal service is “remuneration of any type
from the United States” and is therefore a prohibited dual benefit. Appellant may not receive
this SSA benefit and workers’ compensation for disability at the same time. But from
October 24, 2005 through December 23, 2006, he did. Appellant had been receiving SSA
2

5 U.S.C. § 8102(a).

3

Id. at § 8116(a).

4

20 C.F.R. § 10.421(d) (1999).

5

Id. at § 10.421(e).

3

benefits since April 2002 and the Office made no offset for these benefits when it placed him on
the periodic compensation rolls beginning October 24, 2005. Using the offset figures supplied
by the SSA, the Office correctly found that it had overpaid appellant $13,824.61 in compensation
for the period in question. The Board will affirm the Office’s April 16, 2007 decision on the
issues of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).6
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.7
ANALYSIS -- ISSUE 2
Appellant was at fault in creating the overpayment because he failed to provide
information which he knew or should have known was material. He never informed the Office
that he was in receipt of SSA benefits. Appellant knew or should have known that this
information was material because the Office inquired on several occasions whether he was in
receipt of benefits from other federal programs. On December 15, 2005 when the Office notified
him that he would be receiving compensation for wage loss on the periodic rolls, the Office
explained why he had to report any retirement income, disability income or compensation
benefits from any federal agency: “This is because a recipient of compensation benefits under
the Act is not permitted to receive benefits under certain other federal programs, including the
[CSRS] program.” Although he was in receipt of SSA benefits since April 2002, appellant
consistently failed to report these benefits to the Office. As a result, he received dual benefits
from October 24, 2005 through December 23, 2006.
Because appellant failed to provide information which he knew or should have known
was material, the Board will affirm the Office’s April 16, 2007 decision on the issue of fault.
Because appellant was at fault in creating the overpayment, the Office may not consider waiving
the overpayment.
6

Id. at § 10.433(a).

7

Id. at § 10.433(b).

4

LEGAL PRECEDENT -- ISSUE 3
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information will be used to
determine the repayment schedule, if necessary.8
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to the Office the amount of the overpayment as soon as the
error is discovered or his or her attention is called to same. If no refund is made, the Office shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.9
ANALYSIS -- ISSUE 3
Appellant did not complete and submit the overpayment recovery questionnaire the
Office provided with its preliminary determination. The Office, nonetheless, gave due regard to
the probable extent and rate of his future compensation payments and his receipt of SSA
benefits, and determined that it would recover the overpayment by deducting $250.00 from
continuing compensation. As the Office gave due regard to appellant’s known financial
circumstances, the Board finds that the Office did not abuse its discretion in setting the rate of
recovery. The Board will affirm the Office’s April 16, 2007 decision on this issue.
CONCLUSION
The Board finds that appellant received a $13,824.61 overpayment of compensation from
October 24, 2005 through December 23, 2006. The Board finds that he was at fault in creating
this overpayment and is therefore not eligible for waiver. The Board also finds that the Office
properly set the rate of recovery at $250.00 from continuing compensation payments.

8

Id. at § 10.438.

9

Id. at § 10.441(a).

5

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2007
Washington, DC

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

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

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

6


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

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

Docket No. 09-407
Issued: September 22, 2009

Case Submitted on the Record

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

JURISDICTION
On November 26, 2008 appellant, through counsel, filed a timely appeal of the
February 1 and August 7, 2008 merit decisions of the Office of Workers’ Compensation
Programs terminating her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for wageloss and medical benefits effective February 1, 2008 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injury.
On appeal, counsel contends that the Office improperly referred appellant to Dr. Maria C.
Carta, a Board-certified neurologist, for an impartial medical examination because there was no
conflict in the medical opinion evidence between Dr. Scott M. Fried, an attending Boardcertified osteopath, and Dr. Ricardo Y. Mabanta, a Board-certified neurologist and Office
referral physician, who further contends that the Office improperly relied on Dr. Carta’s medical

opinion to terminate appellant’s compensation as it was not based on a complete review of the
entire case record or well rationalized.
FACTUAL HISTORY
On May 9, 2005 appellant, then a 55-year-old city letter carrier, filed an occupational
disease claim alleging that on April 14, 2005 she first became aware of her bilateral carpal tunnel
syndrome and realized that the condition was caused by her federal employment. By letter dated
June 28, 2005, the Office accepted her claim for bilateral carpal tunnel syndrome. Appellant
returned to limited-duty work as a lobby host four hours per day effective September 18, 2006.
By letter dated September 26, 2006, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions to be addressed to
Dr. Mabanta, a Board-certified neurologist, for a second opinion medical examination.
In an October 20, 2006 medical report, Dr. Mabanta noted appellant’s hand and neck
symptoms. He reviewed a history of her medical treatment and social and family background.
Dr. Mabanta reported normal findings on physical examination. After discussing other findings
on diagnostic testing, he concluded that appellant should continue her part-time work duties until
the recommended treatment was completed. In a December 12, 2006 addendum report,
Dr. Mabanta stated that a November 20, 2006 electromyogram (EMG) study was abnormal. It
demonstrated moderate right carpal tunnel syndrome and borderline left carpal tunnel syndrome.
Dr. Mabanta was unable to complete a work capacity form without the results of a functional
capacity evaluation (FCE).
In a May 3, 2007 disability certificate, Dr. Fried stated that appellant was under his care
for an upper extremity employment injury, which had worsened due to increased symptoms and
that she was unable to work.1 He reported that he would reevaluate her on June 18, 2007.
By letter dated June 6, 2007, the Office referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed to Dr. John E. Fitzpatrick, a
Board-certified neurologist, for a second opinion examination. In a June 20, 2007 report,
Dr. Fitzpatrick reviewed a history of appellant’s employment injury, medical treatment and
family and social background. On physical examination, he reported essentially normal findings
with the exception of limited range of motion of the cervical spine, a weakly positive Tinel’s
sign and positive Phalen’s sign. On neurological examination, Dr. Fitzpatrick reported
essentially normal findings except diminished light tough and pinprick along the ulnar aspect of
the right hand and fingers, left first, second and fifth digits and left C5-6 dermatome. He
diagnosed bilateral median sensory neuropathy compression of the left wrist, bilateral cervical
radiculopathy due to degenerative cervical spondylosis. Dr. Fitzpatrick opined that appellant
was capable of working as a letter carrier. Appellant had no disability or limitations regarding
her work duties. Dr. Fitzpatrick stated that further diagnostic testing was not necessary. He
found that appellant did not have any additional conditions that prevented her from returning to
1

By decision dated July 17, 2007, the Office accepted that appellant sustained a recurrence of disability on
April 25, 2007 causally related to her accepted employment injury. It paid her compensation for the period May 11
through July 7, 2007.

2

full-time work. Dr. Fitzpatrick advised that she remained at maximum medical improvement
after being out of work for four weeks. He concluded that appellant would not benefit from an
FCE.
On August 3, 2007 the Office found that a conflict in medical opinion arose between
Dr. Fried and Dr. Fitzpatrick as to whether appellant had any continuing employment-related
residuals or disability. By letter dated September 21, 2007, it referred her, together with a
statement of accepted facts, the case record and a list of questions to be addressed, to Dr. Carta, a
Board-certified neurologist for an impartial medical examination.
In an October 3, 2007 report, Dr. Carta reviewed a history of appellant’s employment
injury and medical, family and social background. She also reviewed appellant’s case record,
noting that pages 1 through 195 were illegible. On physical examination, Dr. Carta reported
normal findings. She stated that appellant’s chief complaint of bilateral carpal tunnel syndrome
had resolved with conservative management. Appellant’s history of cervical stenosis was related
to her occupational claim. Dr. Carta found no evidence of brachial plexopathy by clinical
symptomatology, neurological examination or EMG report. An April 15, 2005 EMG report
indicated that all of appellant’s nerve conduction studies with the exception of the distal median
motor latencies that were slightly prolonged, were within normal limits. There was no
abnormality in any of the muscles tested with the exception of the opponens pollicis muscle
which revealed a slight decrease in recruitment. In the absence of any other abnormalities it was
considered voluntary. A repeat EMG study revealed evidence of mild right-sided carpal tunnel
syndrome and borderline left-sided carpal tunnel syndrome. Dr. Carta stated that appellant had
reached maximum medical improvement and that no further treatment or diagnostic testing was
necessary. She noted that appellant had not worked since the spring of 2007 and, thus, her job
had not aggravated her present condition. Dr. Carta opined that appellant was capable of
working as a letter carrier and that she had zero percent permanent disability. She concluded that
the cervical spine findings were related to the normal degeneration of the cervical spine in
middle age and not appellant’s employment.
After reviewing the entire case record, Dr. Carta stated in an October 31, 2007 report that
appellant could perform her letter carrier duties with restrictions. She also stated that appellant
reached maximum medical improvement in September 2006. Dr. Carta concluded that appellant
would benefit from an FCE and work-hardening program based on her subjective complaints
which were not supported by objective findings.
By letter dated December 3, 2007, the Office issued a notice of proposed termination of
appellant’s wage-loss compensation and medical benefits based on the medical opinion of
Dr. Carta. It allowed appellant 30 days to respond to this notice.
In a December 12, 2007 letter, appellant’s attorney disagreed with the proposed action.
He contended that Dr. Carta’s report was not well rationalized. Counsel stated that Dr. Carta
acknowledged that a November 20, 2006 EMG revealed the existence of moderate right carpal
tunnel syndrome and borderline left carpal tunnel syndrome but, stated that appellant’s carpal
tunnel syndrome had resolved. He further stated that Dr. Carta did not provide any medical
rationale to support her conclusion. Dr. Carta also failed to discuss the diagnostic evidence.

3

Counsel argued that Dr. Carta should explain why appellant had restrictions in light of her
opinion that her employment-related condition had resolved.
By letter dated January 8, 2008, the Office requested that Dr. Carta review a July 2007
EMG study and provide her findings. It also requested that she review an October 5, 2007 MRI
scan and determine whether appellant sustained a right shoulder injury causally related to the
accepted employment injury.
In a January 18, 2008 report, Dr. Carta stated that the July 17, 2007 EMG findings were
consistent with brachial plexopathy. She could not fully comment on whether the MRI scan
findings regarding the shoulder were related to the accepted employment injury. Although
Dr. Carta stated that it appeared appellant sustained degenerative changes in the shoulder, which
was expected in a middle-aged woman and there was no documentation of a full thickness
rotator cuff tendon tear, she recommended that an orthopedic specialist address this issue. She
concluded that there was no change in her opinions set forth in the October 3 and 31, 2007
reports.
By decision dated February 1, 2008, the Office terminated appellant’s compensation for
wage-loss and medical benefits with regard to her accepted employment injury, effective that
date. It found that she no longer had any residuals or disability causally related to her accepted
employment injury.
By letter dated February 5, 2008, appellant, through her attorney, requested an oral
hearing before an Office hearing representative.
In an August 7, 2008 decision, an Office hearing representative affirmed the February 1,
2008 decision. She accorded special weight to Dr. Carta’s opinion as an impartial medical
examiner in finding that appellant no longer had any residuals or disability causally related to her
accepted employment injury.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.2
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that requires further medical treatment.4
2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
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.5 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background must be given special weight.6
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome due to her
employment factors. The issue is whether it has met its burden of proof in terminating
appellant’s wage-loss compensation and medical benefits after February 1, 2008. The Board
finds that the Office did not meet its burden of proof to terminate her compensation benefits.
The Board finds that a conflict existed in the medical evidence between Dr. Fried, an
attending physician, and Dr. Fitzpatrick, an Office referral physician, as to whether appellant had
any continuing residuals or disability causally related to her accepted employment injury.
Dr. Fried opined that appellant continued to suffer from residuals and total disability due to the
accepted employment injury. Dr. Fitzpatrick opined that appellant’s employment-related
bilateral carpal tunnel syndrome had resolved and she could return to work with no restrictions.
The Office properly referred appellant to Dr. Carta, as the impartial medical specialist. In
an October 3, 2007 report, Dr. Carta noted that the case record was incomplete but, provided her
findings on physical examination and objective testing. She opined that the accepted condition
of bilateral carpal tunnel syndrome had resolved with conservative management. Dr. Carta
further opined that appellant’s cervical stenosis was related to the normal degeneration of the
cervical spine in middle age and not to her employment. She found that appellant had reached
maximum medical improvement and that she did not require any further treatment or diagnostic
testing. Dr. Carta concluded that appellant could perform her letter carrier duties and that she
was not partially disabled. However, following a complete review of the entire case record, she
stated in an October 31, 2007 report that appellant could perform her letter carrier duties with
restrictions. Dr. Carta also recommended that appellant undergo an FCE and work-hardening
program. The Board finds that the opinion of Dr. Carta is not entitled to the special weight of the
medical opinion evidence because it was not sufficiently rationalized. Dr. Carta did not address
whether appellant’s restrictions or the FCE and work-hardening program were due to the
accepted employment injury or to a nonwork-related condition. Given the inconsistent and
conclusory nature of her opinion, Dr. Carta’s medical reports are of diminished probative value
and insufficient to establish that all residuals and disability related to appellant’s accepted
employment-related condition had resolved.7 Therefore, the Board finds that the Office did not
meet its burden of proof to terminate appellant’s compensation benefits.
5

5 U.S.C. § 8123(a). See also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
6

Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

7

See William C. Thomas, 45 ECAB 591, 594 (1994).

5

CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation for
wage-loss and medical benefits effective February 1, 2008 on the grounds that she no longer had
any causally related to her accepted employment-related injury.
ORDER
IT IS HEREBY ORDERED THAT the August 7 and February 1, 2008 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: September 22, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
__________________________________________

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

Docket No. 20-1619
Issued: December 30, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 1, 2020 appellant filed a timely appeal from a March 19, 2020 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 over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 19, 2020 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 expand the acceptance of her
claim to include a traumatic brain injury, vertigo, sleep disturbance, and depressive disorder
causally related to her accepted August 31, 2012 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 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 September 5, 2012 appellant, then a 49-year-old supervisory information technology
specialist, filed a traumatic injury claim (Form CA-1) alleging that on August 31, 2012 she
sustained a concussion and neck sprain when she tripped on a chair mat and fell head first into a
wall while in the performance of duty. OWCP accepted the claim for cervical sprain a nd a
concussion. Appellant stopped work on August 31, 2012 and returned to part-time employment
on November 13, 2012. OWCP paid her wage-loss compensation on the supplemental rolls for
the period October 15, 2012 through September 28, 2018. Appellant returned to full-time work in
September 2018.
In a report dated September 24, 2012, Dr. Edward S. Kim, an osteopath, evaluated
appellant for neck pain. He noted that she complained of headaches and balance difficulties.
On July 26, 2013 Dr. Sakib Shahzad Qureshi, a Board-certified neurologist, discussed
appellant’s complaints of headaches and sleep disturbances in addition to symptoms of
postconcussion syndrome. He diagnosed postconcussion syndrome subsequent to an August 31,
2012 fall and head injury, headaches likely due to postconcussion syndrome, a sleep disturbance,
and benign paroxysmal positional vertigo (BPPV). Dr. Qureshi submitted a progress report with
similar findings on October 23, 2013.
In a progress report dated April 25, 2013, Dr. Qureshi indicated that appellant had
symptoms of mild cognitive issues and sleep disturbance. He diagnosed postconcussion syndrome
after a head injury on August 31, 2012 with continuing cognitive complaints, headaches likely
related to her postconcussion syndrome, and a sleep disturbance.
On January 16, 2014 Dr. Qureshi discussed appellant’s complaints of vertigo with
positional changes and continued headaches and sleep disturbance. He diagnosed postconcussion
syndrome after an August 31, 2012 injury with the complications of migraines, tinnitus, BPPV,
sleep disturbance, vertigo consistent with BPPV, and cervical spondylosis.
On April 24, 2014 Dr. Eric B. Sklar, a Board-certified neurologist, advised that appellant
“continued to have symptoms of headaches and dizziness, as well as persistent cognitive issues.”
He found that she could perform limited-duty employment. In a May 28, 2014 progress report,

3

Order Remanding Case, Docket No. 19-0170 (issued August 21, 2019).

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Dr. Sklar diagnosed postconcussion syndrome, headache, dizziness, an unspecified sleep
disturbance, and cervicalgia.
OWCP, on April 4, 2014, referred appellant to Dr. Marianne Schuelein, a Board-certified
neurologist, for a second opinion examination to determine her current condition, disability, and
the diagnosed conditions causally related to the employment injury.
On May 7, 2014 OWCP referred appellant to Dr. Joette James, a psychologist, for a second
opinion examination regarding her neurophysiological status.
In a report dated June 3, 2014, Dr. James reviewed the history of the August 31, 2012
employment injury and discussed appellant’s complaints of difficulty multitasking, memory loss,
insomnia, and vertigo. She diagnosed concussion and cervical strain. Dr. James opined that the
vertigo and headaches were probably due to the concussion and recommended neuropsychological
testing to determine the extent of her cognitive problems and disability. Following psychological
testing performed on the same date, she diagnosed a mild neurocognitive impairment due to
traumatic brain injury, depressive disorder, and postconcussion syndrome.
On July 4, 2014 Dr. Schuelein reviewed Dr. James’ report and concurred with her finding
of postconcussion syndrome causally related to the accepted employment injury.
On August 18, 2014 Dr. Sklar diagnosed postconcussion syndrome, an unspecified sleep
disturbance, dizziness, and cervicalgia. On January 15, 2015 he provided the additional diagnosis
of fatigue.
In a March 23, 2015 progress report, Dr. Sklar noted that appellant had hit her head on the
back of a car rest in a January 29, 2015 motor vehicle accident (MVA). Following the MVA
appellant had experienced increased sleep disturbance and occasional headaches. Dr. Sklar
diagnosed postconcussion syndrome, an unspecified sleep disturbance, dizziness, cervicalgia, and
fatigue. He submitted similar progress reports on July 15, 2015 and February 3, 2016.4
On February 10, 2016 OWCP referred appellant to Dr. Victoria N. Starbuck, a
neuropsychologist, for a second opinion evaluation. It requested that she address which diagnosed
conditions were causally related to the accepted August 31, 2012 employment injury.
In a report dated March 9, 2016, Dr. Starbuck reviewed appellant’s history of injury and
performed psychological testing. She found no significant brain dysfunction, but some weakness
on free recall memory and problem solving that was time dependent. Dr. Starbuck noted that
appellant’s personality testing showed symptoms of anxiety. She diagnosed postconcussion
syndrome causally related to the August 31, 2012 employment injury. Dr. Starbuck indicated that
there were no diagnosed conditions that were not causally related to the accepted work injury. In
a work capacity evaluation (Form OWCP-5c) dated March 22, 2016, she found that appellant’s
ability to work eight hours per day might vary due to appellant’s symptoms of vertigo or a sleep
disturbance.

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Dr. Sklar continued to submit progress reports describing his treatment of appellant.

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On July 26, 2016 appellant requested that OWCP expand the acceptance of her claim to
include a mild neurocognitive impairment due to a traumatic brain injury, other specified
depressive disorder, and postconcussion syndrome based on the opinion of Dr. James. She further
requested that OWCP expand the acceptance of her claim to include vertigo and sleep disturbance,
and postconcussion syndrome based on Dr. Starbuck’s report.
On August 30, 2016 OWCP expanded the acceptance of appellant’s claim to include
postconcussion syndrome.
On September 19 and December 17, 2016 appellant requested that the acceptance of her
claim be expanded to include vertigo, anxiety, and a sleep disorder based on Dr. Starbuck’s
findings.
In a January 11, 2017 response, OWCP advised appellant that it would request a
supplemental report from Dr. Starbuck regarding the causal relationship between the conditions of
vertigo, anxiety, and sleep disorder and appellant’s accepted employment injury.
By decision dated May 30, 2017, OWCP denied appellant’s request to expand the
acceptance of her claim to include vertigo, sleep disturbance, a traumatic brain injury, and other
specified depressive disorder.
On November 14, 2017 appellant, through her then-representative, requested
reconsideration. Appellant submitted a progress report from Dr. Sklar dated February 15, 2017.
By decision dated February 9, 2018, OWCP denied appellant’s request for further review
of the merits of her claim under 5 U.S.C. § 8128(a).
In a report dated April 11, 2018, Dr. Sklar discussed appellant’s complaints of symptoms
of a stutter, occasional vertigo, and difficulty sleeping. He reviewed the results of her
neuropsychological testing in June 2014 and March 2016. Dr. Sklar noted that appellant’s
evaluations showed improvement. He related, “[Appellant] still has several persistent and
permanent symptoms from her injury, specifically dizziness, cognitive fatigue, and sleep issues
that have remained as a result of her initial head injury, consistent with postconcussion
syndrome….”
On May 30, 2018 appellant again requested reconsideration.
By decision dated August 27, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
Thereafter, OWCP received an October 16, 2017 progress report from Dr. Lewis B.
Eberly, a Board-certified neurologist, who diagnosed improved postconcussion syndrome, and
improved vertigo, anxiety, and sleep issues.

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Appellant appealed to the Board. By order dated August 21, 2019, the Board set aside the
August 27, 2018 decision. 5 The Board found that appellant’s May 30, 2018 request for
reconsideration was in fact timely and remanded the case for OWCP to apply the legal standard
reserved for timely reconsideration requests.
On November 15, 2019 OWCP referred appellant to Dr. Edward Peck, a
neuropsychologist, for a second opinion examination. It requested that he address whether she
had sustained additional conditions causally related to her accepted employment injury.
In a report dated February 12, 2020, Dr. Peck described appellant’s complaints of fatigue,
sensitivity to noise, and sleep issues, but no cognitive or mental health problems. He advised that
the results of psychological testing showed a normal mental status and neuropsychological
evaluation. Dr. Peck diagnosed resolved concussion and postconcussion syndrome.
On March 6, 2020 OWCP requested that Dr. Peck address whether appellant’s vertigo,
sleep disturbance, traumatic brain injury, and other specified depressive disorder were causally
related to the accepted employment injury.
In a supplemental report dated March 9, 2020, Dr. Peck advised that he was not a qualified
physician and was thus unable to provide a medical opinion. He related that the conditions of
vertigo, sleep disturbance, traumatic brain injury, and depressive disorder appeared based on
subjective complaints rather than objective testing. Dr. Peck advised that appellant had no active
neurocognitive or mental health issues and that he was unable to find a causal relationship between
vertigo and sleep disturbance and the August 31, 2012 employment injury.
By decision dated March 19, 2020, OWCP denied modification of its May 30, 2017
decision.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
5

Supra note 3.

6

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); Jaja K.
Asaramo, 55 ECAB 200, 204 (2004).
7

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

8

F.A., Docket No. 20-1652 (issued May 21, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
employment injury.9
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s request to expand the acceptance of her claim based on the report
of Dr. Peck, a neuropsychologist who provided a second opinion evaluation. On February 12,
2020 Dr. Peck noted that appellant complained of fatigue, sensitivity to noise, and sleep issues,
but no cognitive difficulty or mental health concerns. He diagnosed resolved concussion and
postconcussion syndrome.
Subsequently, OWCP requested that Dr. Peck address whether appellant’s vertigo, sleep
disturbance, traumatic brain injury, and other specified depressive disorder were causally related
to the accepted employment injury.
In a March 9, 2020 response, Dr. Peck noted that the conditions of vertigo, sleep
disturbance, traumatic brain injury, and depressive disorder appeared based on subjective reports
rather than objective testing. He indicated that appellant had no active neurocognitive or mental
health issues and that he was unable to find a causal relationship between vertigo and s leep
disturbance and the August 31, 2012 employment injury. However, Dr. Peck prefaced his
conclusions by explaining that he was not a qualified physician.
FECA provides that a physician includes clinical psychologists within the scope of their
practice as defined by State law. 10 OWCP’s procedures provide, “A claim for an emotional
condition must be supported by an opinion from a psychiatrist or clinical psychologist before the
condition can be accepted. Because clinical psychologists are not licensed to treat physical
disorders or prescribe medication, an opinion from a psychiatrist must be obtained where a nonmental component is present, a functional overlay is implicated, and/or medication is used.”11
Appellant alleged that acceptance of her claim should be expanded due to conditions associated
with her head injury, a nonmental injury, and thus the referral to the clinical neuropsychologist to
address the issue of claim expansion was improper.12
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation, but OWCP
shares responsibility in the development of the evidence to see that justice is done. 13 Once it
9

Id.

10

5 U.S.C. § 8101(2).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d)(3)(c)
(January 2013).
12

See generally O.S., Docket No. 18-1549 (issued February 7, 2019); J.M., Docket No. 09-0993 (issued
November 5, 2009).
13

See M.L., Docket No. 20-1682 (issued June 24, 2021); H.A., Docket No. 18-1455 (issued August 23, 2019).

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undertakes development of the record, OWCP must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case. 14 On remand OWCP shall refer appellant
to an appropriate specialist to determine whether her claim should be expanded to include
additional conditions causally related to her accepted August 31, 2012 employment injury.
Following this and other such further development as deemed necessary, OWCP shall issue a
de novo decision.15
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: December 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

15

On appeal appellant contends that OWCP, in its March 19, 2020 decision, failed to review the March 9, 2020
report from Dr. Peck; however, it appears from a review of the decision that it considered his finding from his March 9,
2020 report that the additional claimed conditions were not supported by objective findings.

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United States Department of Labor
Employees’ Compensation Appeals Board

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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Liberal, KS, Employer
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J.P., Appellant

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

Docket No. 14-1478
Issued: October 21, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On June 17, 2014 appellant filed a timely appeal from the May 9, 2014 Office of
Workers’ Compensation Programs’ (OWCP) nonmerit decision, which denied his request for
reconsideration on the grounds that it failed to present new, relevant evidence or argument with
respect to a May 31, 2013 schedule award decision.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The record reflects that OWCP issued a schedule award on May 31, 2013 for an
additional 10 percent permanent impairment to the left arm and no additional impairment to the
right arm for a total permanent impairment to the left arm of 22 percent and 11 percent to the
right arm. On February 9, 2014 appellant’s representative requested reconsideration and noted
that he was presenting new medical evidence of an additional 18 percent impairment of the left
arm from Dr. John W. Ellis, Board-certified in family medicine. A January 14, 2014 report from
Dr. Ellis accompanied the request in which Dr. Ellis addressed permanent impairment under the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides) (6th ed. 2009). Dr. Ellis conducted a new examination and opined that appellant had 40
percent impairment of the left upper extremity. In a decision dated May 9, 2014, OWCP denied
appellant’s request for reconsideration, finding that he failed to submit new relevant evidence or

argument. It noted that the new report from Dr. Ellis was cumulative of his October 23, 2012
report which offered the same impairment rating.
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a
claimant is asserting that the original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration. A claim for an additional schedule award may
be based on new exposure to employment factors or on the progression of an employmentrelated condition, without new exposure, resulting in greater permanent impairment.1 The Board
finds that appellant has submitted new evidence addressing a claim for an additional schedule
award based on a progression of his employment-related condition rather than arguing that the
original schedule award was in error.2 The Board notes that Dr. Ellis provided a new
examination and opined that appellant had 40 percent impairment of the left arm.3
As noted, a claimant may request a schedule award or increased schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment. The Board finds,
therefore, that OWCP erroneously refused to address appellant’s request for an increased
schedule award. On remand, OWCP should review and develop the medical evidence and issue
an appropriate merit decision regarding appellant’s request for an increased schedule award.

1

D.C., Docket No. 13-1179 (issued September 6, 2013); T.S. Docket No. 12-1781 (issued February 12, 2013).
See B.K., 59 ECAB 228 (2007).
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D.C., id; B.K., id. (where it was evident that the claimant as seeking a schedule award base on new and current
medical evidence, OWCP should have issued a merit decision on the schedule award claim than adjudicate an
application for reconsideration).
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The Board notes that, while Dr. Ellis’ October 23, 2012 report also finds 40 percent impairment of the left arm,
his January 14, 2014 report and its calculation are based on new examination findings.

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IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further
development consistent with this order of the Board.
Issued: October 21, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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