United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS ADMINISTRATION MEDICAL
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CENTER, St. Louis, MO, Employer
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___________________________________________ )
R.S., Appellant

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

Docket No. 10-1377
Issued: April 25, 2011

Case Submitted on the Record

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

JURISDICTION
On April 22, 2010 appellant filed a timely appeal from a March 26, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability commencing on July 7, 2008 causally related to an accepted
November 25, 2000 employment injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board on appeal.2 In a February 23, 2009
decision, the Board found that appellant had not met her burden of proof to establish that she
sustained permanent impairment of a scheduled body member due to her accepted lumbar strain.
The facts and history contained in the prior appeal are incorporated by reference.
On April 30, 2008 the employing establishment noted that the medical evidence
supported that appellant was able to perform her full range of duties as a nursing assistant, with
the exception of walking more than 12 hours. It noted that her duty hours would be changed to
12-hour shifts.
On July 10, 2008 appellant asked that the Office conduct a medical review with regard to
whether her claim should be expanded to include injuries to her hips, knees, right thigh and both
feet. She also noted that she would file a new claim for her hips, right thigh and vertigo.
Appellant alleged that she had been having problems since August 2004, when her back started
hurting again. She submitted reports from Dr. Naseem A. Shekhani, Board-certified in family
medicine and a treating physician. On March 12, 2008 Dr. Shekhani diagnosed right ankle
osteoarthritis, right foot pain, antalgic gait and low back pain. On April 10, 2008 he noted that
appellant had low back, ankle and knee pain that increased with activity. Dr. Shekhani
diagnosed lumbago, right leg pain and antalgic gait. He continued to provide similar diagnoses.
On June 9, 2008 Dr. Shekhani indicated that appellant could work a 16-hour week while, on
July 7, 2008, he noted that she advised that her pain worsened over the weekend with
“ambulation and doing her work.” Appellant requested treatment for her lumbar strain.
Dr. Shekhani provided an excuse from work for July 7 and 8, 2008. Additionally, he completed
a duty status report on July 18, 2008 advising that appellant could work 16 hours per day for two
to three days a week. On July 28, 2008 Dr. Shekhani added a 50-pound lifting restriction.3
In a letter dated July 18, 2008, Dr. Matthew McCall, an employing establishment
physician, noted that appellant was presently working as nursing assistant. He requested that
Dr. Shekhani clarify her duties. Dr. McCall noted that the present restrictions included that
appellant could intermittently walk and work for 16 hours a day. He explained that her present
position required that she work three 16-hour tours back to back for one week and then the
following week, she would work two 16-hour tours.
In a letter dated June 21, 2009, appellant stated that she had an “illness in July 2002 until
this present time.” She noted having chronic back pain that was a deep, aching, dull and burning
pain from the middle of her back traveling down the right leg, to both of her hips, knees and feet.
Appellant stated that she worked 16 hours one week and two days the next week. She alleged
2

Docket No. 08-1934 (issued February 23, 2009). Appellant, then a 38-year-old psychiatric nurse’s aide, filed a
traumatic injury claim alleging that on November 25, 2000 she sustained lower back pain while repositioning a
patient in bed. The Office accepted the claim for lumbar strain resolved by decision dated October 20, 2004. It also
accepted a recurrence on November 6, 2006.
3

On October 3, 2008 appellant claimed intermittent leave without pay from April 1 to September 29, 2008. The
Office paid her for intermittent hours for time lost due to medical appointments from July 7 to August 25, 2008.

2

that the employing establishment was now working her eight hours a day, five days a week,
which caused stress and pain in her legs and feet.
Appellant provided a June 19, 2009 report from Dr. Shekhani, diagnosing a lumbar sprain
and noting restrictions that included no pushing, pulling or lifting over 20 pounds. In a July 6,
2009 report, Dr. Shekhani diagnosed lumbago and advised that work restrictions were given to
her.
On June 23, 2009 appellant filed a notice of recurrence claiming a recurrence of disability
on July 2, 2002. She alleged that her recurrence involved an injury to her knees, the elbow and
right foot. Appellant alleged to have stopped work on July 7, 2008 and returned to work on
June 8, 2009. The statement accompanying the recurrence claim noted that she experienced
more pain when she was returned to eight hours per day, five days per week.4 The employing
establishment indicated that she returned to work with a limitation of no pushing or pulling
anything greater than 10 pounds.5 It noted accommodating appellant each time she provided a
statement of work restrictions.
Appellant had accepted a June 9, 2009 limited-duty job offer taking vital signs, entering
data and other clerical duties, such as answering telephones. This was to be an eight-hour per
day, five days per week position.
On June 29 and July 21, 2009 the Office informed appellant of the type of evidence
needed to support her claim. It explained that a physician’s opinion was crucial to her claim and
allotted her 30 days within which to submit the requested information.
In a July 20, 2009 report, Dr. Shekhani advised that he treated appellant since
August 2007. He noted that her back injury occurred in November 2000 and that she had a right
foot injury in August 2007. Dr. Shekhani stated that appellant had decreased range of motion of
her lower back and trigger points where she received injections, an antalgic gait with bilateral
hips, knees and ankle pain more on the right than left. He advised that she “clearly has a cause
which is her work injuries.” Dr. Shekhani indicated that appellant could not perform her duties
as she would have problems in lifting, pulling, pushing, kneeling, bending, stooping and
ambulating on a constant basis as required by her work duties. He noted that her condition was
progressively worsening and was preventing her from performing her duties to the fullest.
Dr. Shekhani diagnosed spondylosis without myelopathy, lumbar injury/strain and degenerative
spine disease. He opined that appellant’s pain was getting worse. Dr. Shekhani placed her on
restrictions with regard to lifting, pushing and pulling.

4

The Office, by letter dated June 10, 2008, had previously denied appellant’s claim that hip, knees and ankle
conditions be accepted as consequential injuries to her accepted lumbar strain. This issue is not currently before the
Board.
5

The record reflects that appellant has filed several claims for intermittent disability. Additionally, on July 21,
2009, she fell at work on a floor mat and reported low back pain. These other claims are not presently before the
Board.

3

In an August 14, 2009 duty status report, Dr. Shekhani advised that appellant’s
restrictions which included lifting, bending, stooping, pulling or pushing of no more than 5 to 10
pounds, were permanent.
In a letter dated September 15, 2009, the Office notified appellant’s representative that
appellant’s claim was accepted for a lumbar strain. It noted reviewing her claim and determining
that no consequential conditions had been accepted. The Office advised appellant that she
should consider filing new claims if her conditions were believed to be work related.6
By decision dated September 16, 2009, the Office denied appellant’s claim for a
recurrence of disability. It found that the medical evidence failed to support an increase in
disability as a result of the accepted medical condition.
Appellant’s representative requested a telephonic hearing that was held on
January 6, 2010. During the hearing, appellant’s representative confirmed that appellant was
receiving retirement benefits. Appellant testified that she last worked on August 20, 2009. She
stated that she claimed a recurrence to cover periods in which her employer had placed her in
absent without leave status.
In a September 28, 2009 report, Dr. Shekhani noted that he saw appellant for neck,
shoulder, back and right ankle pain. Appellant related that her pain was excruciating and getting
progressively worse. Dr. Shekhani observed difficulty in ambulation secondary to ankle pain.
He examined appellant and diagnosed lumbar pain, cervalgia and spasm with right rotator cuff
syndrome and right shoulder pain.
In a March 26, 2010 decision, the Office hearing representative affirmed the Office’s
September 16, 2009 decision.
LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations defines “recurrence of disability” as 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.7
Appellant has the burden of establishing that she sustained a recurrence of a medical
condition8 that is causally related to his accepted employment injury. To meet her burden, she
must furnish medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the condition is causally related to the employment
6

Supra note 4.

7

20 C.F.R. § 10.5(x) (2002). See Carlos A. Marrero, 50 ECAB 117 (1998).

8

“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. 20 C.F.R. § 10.5(y) (2002).

4

injury and supports that conclusion with sound medical rationale.9 Where no such rationale is
present, the medical evidence is of diminished probative value.10
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that he can perform the light-duty position, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he cannot perform such light duty. As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty job requirements.11
ANALYSIS
The Office accepted that on November 25, 2000 appellant sustained employment-related
lumbar strain. Appellant subsequently alleged that she sustained a recurrence of disability which
caused disability for work commencing on July 2, 2002, but allegedly did not cause her disability
for work until July 7, 2008.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she had disability beginning July 2, 2002, which was causally related to her November 25, 2000
employment injury. The Board also notes that there is no evidence showing a change in the
nature and extent of the light-duty job requirements. The record supports that the employer
made available appropriate light-duty work that was consistent with appellant’s restrictions.
In support of her claim for a recurrence of disability, appellant provided reports from
Dr. Shekhani. On July 7, 2008 Dr. Shekhani noted that she advised him that her pain worsened
over the weekend with “ambulation and doing her work.” He indicated that appellant requested
treatment for her lumbar strain. Dr. Shekhani diagnosed lumbar strain, right leg pain and
antalgic gaits and excused her from work for July 7 and 8, 2008. He did not specifically address
whether appellant had a spontaneous change in her low back strain sustained on November 25,
2000 and he did not otherwise explain why she had disability due to the accepted low back
strain. Other July 2008 reports from Dr. Shekhani also did not offer any opinion to explain why
she could not perform her light duties beginning July 7, 2008, due to her November 25, 2000
employment injury. Instead, these reports noted appellant’s symptoms, diagnoses and work
restrictions. Thus, these reports most contemporaneous with the beginning of the claimed
recurrence of disability do not specifically address how her disability beginning July 7, 2008 is
due to a spontaneous change in her November 25, 2000 low back strain.12

9

Ronald A. Eldridge, 53 ECAB 218 (2001).

10

Albert C. Brown, 52 ECAB 152 (2000).

11

Conard Hightower, 54 ECAB 796 (2003).

12

See K.W., 59 ECAB 271(2007) (medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

5

Dr. Shekhani’s later reports are also insufficient to establish the claim. In a July 20, 2009
report he noted appellant’s history, including her back injury in November 2000 and advised that
she “clearly has a cause which is her work injuries.” However, Dr. Shekhani did not provide
rationale explaining why appellant’s disability beginning July 7, 2008 was due to a spontaneous
change in her accepted low back strain. He also noted several diagnoses, such as a foot injury,
spondylosis and degenerative spine disease, which are not accepted conditions in the claim
before the Board. Dr. Shekhani did not explain how these additional diagnoses resulted from the
accepted lumbar strain that occurred in November 2000.13 The Board also notes that
Dr. Shekhani did not appear to be aware that appellant had not worked for the employer since
August 20, 2009.14 Likewise, in Dr. Shekhani’s September 28, 2009 report, he referenced
several conditions not accepted by the Office and he did not address how her disability beginning
July 7, 2008 was due to the accepted low back strain. Other 2009 reports from him did not relate
appellant’s disability beginning July 7, 2008 to her accepted low back strain.
Dr. Shekhani also provided reports that predated the claimed recurrence which noted
findings, diagnoses and work restrictions. These reports did not offer any support that appellant
had any disability beginning July 7, 2008 that was causally related to her accepted low back
strain. There is no other medical evidence provided by her that addresses how her claimed
recurrent disability is due to her accepted lumbar strain.
The Board finds that the medical evidence of record does not establish that appellant
experienced a spontaneous change in her accepted low back strain that caused total disability
beginning July 7, 2008. The medical reports submitted by appellant do not contain a rationalized
opinion to explain why she could no longer perform the duties of her light-duty position and why
any such disability or continuing condition would be due to the accepted low back strain without
an intervening injury or new exposure. As appellant has not submitted any medical evidence
establishing that she sustained a recurrence of disability due to her accepted employment injury,
she has not met her burden of proof.
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability commencing on July 7, 2008 causally related to an accepted November 25, 2000
employment injury.

13

For conditions not accepted by the Office as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not the Office’s burden to disprove such
relationship. G.A., Docket No. 09-2153 (issued June 10, 2010).
14

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).

6

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2010 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: April 25, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 15-1726
Issued: January 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 17, 2015 appellant filed a timely appeal from a March 4, 2015 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.
ISSUE
The issue is whether OWCP met its burden of proof to justify termination of appellant’s
medical and wage-loss compensation benefits for his accepted injury effective March 4, 2015.
FACTUAL HISTORY
On November 6, 2012 appellant, then a 52-year-old marine machinery mechanic, filed a
traumatic injury claim (Form CA-1) for a twisted right ankle due to stepping into a pothole and
rail track on November 2, 2012. By decision dated February 28, 2013, OWCP accepted his

1

5 U.S.C. § et seq.

claim for right ankle sprain. Appellant received intermittent payments of wage-loss
compensation on the short-term rolls from March 22, 2013 through May 2, 2014.
By letter dated May 9, 2013, Dr. Michael A. Caines, a Board-certified orthopedic
surgeon, noted that it was his professional opinion that the acute component of appellant’s sprain
had resolved. However, he noted:
“[W]hen I last saw [appellant] on April 1, 2013, my impression was that he had
anterolateral soft tissue impingement syndrome of the right ankle.... Indeed,
[appellant] does have preexisting osteoarthritis of his right ankle, for which he has
a focal anterolateral talar dome OCD, as well as degenerative changes.... The
proposed arthroscopy of the right ankle is in no way to address his preexisting
osteoarthritis. It is to address anterolateral soft tissue impingement syndrome....
Numerous studies show that anterolateral soft tissue impingement syndrome is
related to anterolateral right ankle sprains, which is indeed what he sustained on
November 2, 2012.”
On July 10, 2013 appellant underwent an OWCP authorized surgical procedure of
arthroscopic debridement of the right ankle and chondroplasty.2
In a medical report dated September 3, 2013, an OWCP field nurse noted that appellant
would resume light-duty work on September 4, 2013.
On November 25, 2013 appellant claimed compensation for leave without pay from
November 22 through December 6, 2013.
By letter dated November 25, 2013, OWCP noted that the evidence of record indicated
that appellant stopped work on November 22, 2013 and had not returned. It stated that the
evidence of record was insufficient to establish disability for this period, as a physician’s
explanation of appellant’s inability to perform his light-duty position had not been provided.
In a letter dated December 5, 2013, appellant noted that his sole reason for work stoppage
was that the employing establishment did not have work available within his current restrictions
and had withdrawn the light-duty position, not because he had claimed a worsening of his
condition.
On December 13, 2013 appellant claimed compensation for leave without pay from
December 7 through 20, 2013. He continued to request compensation for leave without pay
through May 2, 2014.
In an e-mail dated December 17, 2013, a supervisor for the employing establishment
confirmed that work was not available within appellant’s medical restrictions.
In a report dated March 12, 2014, Dr. Arthur W. Wardell, a Board-certified orthopedic
surgeon, reviewed an x-ray scan and diagnosed right ankle sprain with traumatic ankle arthritis.

2

The record reflects that appellant received wage-loss compensation from July 10 through September 3, 2013.

2

He included progress notes which reported that appellant continued to have pain and reduced
range of motion in his right ankle.
On April 4, 2014 OWCP referred appellant to a second opinion examiner to determine
the extent of his diagnosed condition and continuing disability. In a report dated April 30, 2014,
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, examined appellant and reviewed the
medical record. On examination, he found that “there [was] some tenderness over the
anterolateral corner but, other than that, no hard objective findings to suggest an ongoing
problem in the ankle.” Dr. Hanley opined, “[Appellant] sustained an ankle sprain on
November 2, 2012. It is my belief that this condition has resolved, and he no longer has any
findings that would be attributable to that particular date of injury.” He noted, “[Appellant] has
been treated in an appropriate fashion for the injuries sustained, but continues to report
subjective complaints in the face of little or no objective findings. That is the basis for a very
poor prognosis. Recommendations for medical treatment would be to brace the ankle for work
activities and the utilization for over-the-counter anti-inflammatories.” Dr. Hanley opined that
appellant had a brief period of total disability following his injury, but was fit for full duties
within three months. He further opined that appellant had no residual physical limitations and
provided a work capacity evaluation recommending full duty.
By letter dated June 12, 2014, appellant requested that OWCP add the condition of
anterolateral soft tissue impingement syndrome to the list of appellant’s accepted conditions.
On July 10, 2014 appellant underwent a functional capacity evaluation (FCE) regarding
his right ankle. Testing revealed moderate decreases in right ankle range of motion and strength.
The physical therapist noted that appellant could continue to work with restrictions.
In a narrative report dated August 6, 2014, Dr. Wardell endorsed the conclusions of the
FCE dated July 10, 2014. He noted prior examinations on May 9 and June 5, 2014, which
revealed stiffness and soreness as well as reduced range of motion. Dr. Wardell further noted
diffuse ankle tenderness and recommended that appellant return to work with restrictions.
In an attending physician’s report dated August 6, 2014, Dr. Wardell diagnosed appellant
with right ankle traumatic arthritis as a result of a right twisted ankle. He checked a box noting
that he believed that the condition was related to appellant’s federal employment.
On November 5, 2014 OWCP proposed to terminate appellant’s medical and wage-loss
compensation benefits, finding that the weight of the medical evidence established no continuing
residuals of his accepted work-related condition. It noted that it had received a request to add an
additional condition of anterolateral soft tissue impingement syndrome, but that Dr. Caines had
not provided a medical rationale for his opinion that this condition was work related. OWCP
found that Dr. Hanley’s April 30, 2014 report represented the weight of the medical evidence. It
noted that Dr. Caines had noted that appellant’s arthritis was a preexisting condition, and as such
Dr. Wardell’s diagnosis of right ankle traumatic arthritis was not well-reasoned in terms of
supporting a continuing work-related disability.
By letter dated November 21, 2014, appellant responded to the proposal to terminate
appellant’s medical and wage-loss compensation benefits. He argued that there was an
unresolved conflict of medical opinion between Dr. Wardell and Dr. Hanley. Counsel noted that

3

OWCP had authorized arthroscopic surgery based upon Dr. Caines’ letter of May 9, 2013, which
justified the procedure based upon a diagnosis of anterolateral soft tissue impingement
syndrome. He argued that Dr. Hanley’s second opinion report was devoid of rationalized
medical opinion evidence and that it was merely conclusory in nature. Counsel requested again
that OWCP add anterolateral soft tissue impingement syndrome to the list of appellant’s
accepted conditions.
In an attending physician’s report dated January 6, 2015, Dr. Wardell recommended
permanent continuing work restrictions for appellant’s injury.
By decision dated March 4, 2015, OWCP terminated appellant’s medical and wage-loss
benefits effective March 4, 2015, based upon Dr. Hanley’s April 30, 2014 report.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 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, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.6 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.7

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

4

To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.8 Medical rationale is a medically sound explanation for the opinion offered.9
It is well established that, when 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.10
ANALYSIS
The Board finds that OWCP did not meet its burden to justify termination of medical and
wage-loss benefits.
OWCP based its decision to terminate appellant’s benefits on an April 30, 2014 report by
Dr. Hanley, a second opinion physician, who conducted a physical examination and reviewed
appellant’s medical history. Dr. Hanley opined that appellant’s condition of right ankle sprain
had resolved and that there was no evidence of an ongoing problem in the right ankle.
Dr. Wardell submitted progress reports and contemporaneous examinations in which he
diagnosed appellant with right ankle sprain with right ankle traumatic arthritis, noted reduced
range of motion and continued pain, and recommended continuing work restrictions.
Drs. Hanley and Wardell both reviewed appellant’s medical history and conducted
physical examinations. However, Dr. Wardell reported continuing reduced range of motion and
pain in appellant’s right ankle, while Dr. Hanley noted full range of motion and tenderness.
Dr. Hanley opined that appellant’s condition had fully resolved with no work-related symptoms
of appellant’s right ankle, while Dr. Wardell noted continuing symptoms of right ankle sprain
with right ankle traumatic arthritis. Right ankle traumatic arthritis was not an accepted condition
in this case, but Dr. Wardell clearly related this condition to the work-related right ankle sprain
and never noted in his reports that the accepted condition of right ankle sprain had resolved. He,
in fact, documented continuing residual symptoms in his progress notes from the date of injury
through the date of termination.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation effective March 4, 2015, because as of this date there was a conflict of medical
opinion between Drs. Hanley and Wardell. Each physician had the opportunity to examine
appellant and review the diagnostic studies of record. Contrary to OWCP’s findings,
Dr. Wardell’s reports did not lack probative value for lack of a medical rationale for treating a
nonaccepted condition. Appellant’s right ankle arthritis was listed as a diagnosis alongside his
accepted right ankle sprain and Dr. Wardell’s treatment of and reporting of symptoms from the
right ankle arthritis are compatible with treatment of and reporting of symptoms from a
continuing right ankle sprain injury or a consequential condition. With respect to the existence

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

and extent of any ongoing employment-related residuals, the Board finds that the relevant and
probative medical evidence is in equipoise.
It is well established that, where there exists opposing medical reports of virtually equal
weight and rationale, the case should be referred to an impartial medical specialist for the
purpose of resolving the conflict.11 The Board notes that the reports of Dr. Wardell were of
record prior to the March 4, 2015 termination decision of OWCP. The Board finds that OWCP
should have submitted both Dr. Hanley and Dr. Wardell’s reports to an impartial specialist to
resolve the conflict in medical opinion evidence before rendering a termination decision. As
OWCP failed to base its decision on a resolution of the opinion evidence, the Board finds that it
did not meet its burden of proof to terminate appellant’s benefits. Referral to an impartial
medical specialist is warranted. Accordingly, OWCP’s decision to terminate appellant’s
compensation and medical benefits is reversed.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective March 4, 2015.

11

H.S., Docket No. 10-1220 (issued May 24, 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the March 4, 2015 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action
consistent with this opinion of the Board.
Issued: January 19, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, Lapwai, ID, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1265
Issued: September 9, 2008

Case Submitted on the Record

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

JURISDICTION
On April 11, 2007 appellant timely appealed the January 11, 2007 merit decision of the
Office of Workers’ Compensation Programs, which affirmed the termination of compensation
and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.1
ISSUE
The issue is whether the Office properly terminated appellant’s compensation and
medical benefits effective February 3, 2005.

1

The record on appeal includes evidence received after the Office issued its January 11, 2007 decision. The
Board cannot consider evidence for the first time on appeal as its review of a case is limited to the evidence which
was before the Office at the time of its final decision. 20 C.F.R. § 10.501.2(c).

FACTUAL HISTORY
Appellant, a 73-year-old soil conservationist, has an accepted occupational disease claim
for major depression which arose on or about November 1, 1986.2 He has several other
physiologic and psychological conditions that were not accepted as employment related. These
include obsessive-compulsive disorder, generalized anxiety disorder, hypertension,
hypercholesterolemia and coronary artery disease, with a history of myocardial infarction on
June 27, 1987.3 Appellant last worked on November 3, 1989. The Office paid appropriate
compensation beginning November 5, 1989.
The Office initially terminated wage-loss compensation and medical benefits by decision
dated July 9, 2003. However, this decision was reversed by an Office hearing representative on
December 4, 2003. The hearing representative found an unresolved conflict of medical opinion
arising between Dr. Michael J. Silverglat, an attending psychiatrist, and Dr. David L. McCann, a
second opinion referral psychiatrist, as to appellant’s continuing residuals and disability. As the
Office had not met its burden of proof to terminate appellant’s benefits, his compensation was
reinstated retroactive to July 12, 2003.
In March 2004, the Office referred appellant to Dr. Noel L. Hoell, a Board-certified
psychiatrist, for an impartial medical evaluation. However, it was subsequently determined that
Dr. Hoell was associated in practice with Dr. Silverglat, appellant’s attending physician.4
Because of this conflict of interest, the Office disqualified Dr. Hoell as an impartial medical
examiner.
Thereafter, the Office referred appellant to Dr. Bert S. Furmansky, a Board-certified
psychiatrist, for an impartial medical evaluation. It provided Dr. Furmansky with an amended
statement of accepted facts dated August 19, 2004. The statement identified a single
compensable employment factor; appellant’s June 26, 1989 request for a desk audit. In
requesting an audit of his employment responsibilities, appellant expressed concern regarding his
inability to complete certain work assignments. He stated that he was expected to fill quotas that
2

Appellant worked at the employing establishment since January 1976. However, his depressive symptoms
preexisted his employment. In a May 20, 1991 report, an Office medical adviser described appellant’s condition as
a work-related exacerbation of preexisting major depression. An August 13, 1991 Office letter accepting the claim
did not specify whether it accepted aggravation of a preexisting condition (major depression) or whether any
employment-related aggravation was temporary or permanent. An April 30, 1991 statement of accepted facts noted
that the Office accepted that the preexisting condition of major depression had been, in part, aggravated by the
claimant’s reaction to his regular job assignments.
3

The June 27, 1987 myocardial infarction was part of appellant’s September 25, 1989 occupational disease claim
(Form CA-2). In October 1987, Dr. John E. Braddock, an attending psychiatrist, advised that “job pressures” and
“demands” in combination with appellant’s compulsive personality represented a “marked contributor” to his
cardiac illness. An Office medical adviser reviewed the record on May 20, 1991 and found no evidence to relate
appellant’s myocardial infarction to specific factors of employment. It was also noted that there was no specific
correlation between appellant’s major depression and his myocardial infarction. The Office medical adviser
addressed several nonwork-related risk factors for myocardial infarction. These included appellant’s hypertension,
obesity, a prior smoking history and a family history of early cardiovascular disease.
4

Dr. Silverglat’s name appeared on the letterhead Dr. Hoell used for the reports he submitted to the Office in July
and August 2004.

2

were beyond his mental and physical abilities. Appellant also noted that he had “tried to
complete [his] assignment of leases, but the amount [was] overwhelming.”5
In a January 4, 2005 report, Dr. Furmansky reviewed appellant’s history of injury and
medical treatment, including the reports of Dr. Silverglat and Dr. McCann. He reviewed
appellant’s background and employment history and set forth findings on mental status
evaluation. Dr. Furmansky list Axis 1 diagnoses as recurrent major depression without
psychosis, in remission, dysthymia, obsessive-compulsive disorder and history of alcohol abuse.
On Axis 2, he noted a personality disorder with avoidant, obsessive-compulsive and paranoid
traits. Dr. Furmansky advised that appellant met the criteria for a dysthymic disorder as it had
lasted more than two years with symptoms of chronic depression. The medical record also
supported the diagnostic criteria for obsessive-compulsive disorder as appellant experienced
persistent thoughts, impulses as intrusive and inappropriate which caused marked anxiety and
distress.
Dr. Furmansky stated that appellant’s psychiatric diagnoses were not causally related to
his previous employment, as noted in the statement of accepted facts. He noted that the onset of
appellant’s depressive symptoms dated back to his early thirties, with treatment by Dr. John
Braddock over a period of seven years for obsessive-compulsive disorder and depression.
Dr. Furmansky advised that the particular pattern of appellant’s illness followed was one of
chronic mild to moderate depression with superimposed episodes of severe illness. Appellant
doubted that he had been depression free at any time since his 30’s, noting long-term personality
traits that brought appellant into conflict with others. Dr. Furmansky noted that appellant
became increasingly concerned about his health following his myocardial infarction and was
fearful of having another heart attack while out in the field at work where he might be unable to
receive assistance.
Dr. Furmansky noted that the Office had accepted appellant’s claim for major depressive
disorder, recurrent, and a temporary aggravation of his preexisting chronic depression. His
review of the medical records revealed that appellant’s recurrent depression had been in
remission for long periods of time and that his mood had returned to a baseline preexisting state.
Dr. Furmansky stated that Dr. Arnold Kadermas, a psychiatrist, who treated appellant in the mid1990’s, had reported in several 1994 reports that appellant’s symptoms were in remission.
Dr. Kadermas found that none of appellant’s current psychiatric diagnoses were causally related
to the accepted June 16, 1989 employment incident. He explained that appellant’s preexisting
chronic depression had a historical pattern of being in remission for long periods of time and had
returned to baseline in 1994. Thus, any employment-related aggravation of appellant’s
preexisting emotional condition was temporary. Dr. Furmansky concluded that appellant did not
currently have a work-related psychiatric disorder. He stated that there was no “plausible or
reasonable explanation” for relating the June 26, 1989 employment incident to appellant’s
current psychiatric status. Dr. Furmansky advised that appellant had been emotionally and
physically abused during childhood, and that “[appellant’s] psychiatric disorders are rooted in his
childhood and have become incorporated into this basis personality containing several
5

The Office’s identification of this particular employment incident as a compensable factor was also reflected in
the initial statement of accepted facts dated April 30, 1991.

3

personality traits.” He also noted that appellant’s physical health, with a history of two
myocardial infarctions and multiple coronary artery procedures, was a significant source of
worry for him.
By decision dated February 3, 2005, the Office terminated appellant’s wage-loss
compensation and medical benefits based on Dr. Furmansky’s January 4, 2005 report. The
Office also found that appellant’s June 27, 1987 heart attack was not employment related.
Appellant subsequently requested an oral hearing, which was held on November 8, 2006. In a
January 11, 2007 decision, the hearing representative affirmed the Office’s February 3, 2005
decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.9
Section 8123(a) of the Act provides that, if there is a disagreement between the physician
making the examination on behalf of the United States and the physician of the employee, the
Office will appoint a third physician who shall make an examination.10 When the case referred
to an impartial medical specialist for the purpose of resolving a conflict in medical opinion, the
opinion of such specialist will be given special weight when based on a proper factual and
medical background and providing rationale for the conclusions reached.11
ANALYSIS
The Office properly found that a conflict in medical opinion arose between Dr. McCann,
an Office referral physician, and Dr. Silverglat, an attending psychiatrist.12 In an April 22, 2003
report, Dr. McCann diagnosed major depressive disorder, recurrent, generalized anxiety disorder,
obsessive-compulsive disorder and personality disorder (not otherwise specified), with avoidant,
6

Curtis Hall, 45 ECAB 316 (1994).

7

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

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

5 U.S.C. § 8123(a).

11

See Phillip H. Conte, 56 ECAB 213 (2004); Manuel Gill, 52 ECAB 282 (2001).

12

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

4

narcissistic and obsessive-compulsive traits. He also listed other general medical conditions
including coronary artery disease, hypercholesterolemia and hypertension that were not
employment related. Dr. McCann advised that appellant had a long-standing history of
depression, anxiety and obsessive-compulsive behaviors, which originated in his youth. He
further indicated that over time appellant’s emotional condition had waxed and waned on the
basis of the natural history of the disorders as well as aggravation by some external factors.
Dr. McCann found significant the fact that appellant’s symptoms continued and at times
worsened after he stopped work and after the work stresses were removed in 1989. He explained
that appellant’s psychiatric disorders existed for a lifetime with a general trend towards
worsening, which was largely independent of occupational factors. Dr. McCann also stated that
stress factors, which appellant brought on himself by way of his pervasively negative attitude,
were a primary contributor to his ongoing psychiatric disability. He concluded that appellant’s
psychiatric diagnoses preexisted his disability and were nonindustrial and that the history of
heart disease also aggravated appellant’s psychiatric condition. In contrast, Dr. Silverglat treated
appellant following the acceptance of his claim. He noted that appellant had chronic mild to
moderate depression with superimposed episodes of more severe illness since his early 30’s.
Dr. Silverglat reviewed the opinion of Dr. McCann and disagreed with his assessment that
appellant’s current psychiatric condition was not employment related.
In an attempt to resolve the conflict in medical opinion, the Office initially referred
appellant to Dr. Hoell. However, Dr. Hoell was not eligible to serve as an impartial medical
specialist as he was a business associate of Dr. Silverglat.13 Accordingly, the Office referred
appellant to Dr. Furmansky for an impartial medical evaluation.
Counsel contends that the Office’s selection of Dr. Furmansky as the impartial medical
examiner was improper as the physician is located in Denver, Colorado whereas appellant
resides in Hamilton, Montana. Counsel questioned why the Office did not select a physician
within appellant’s same ZIP code. The difficulty in selecting an impartial examiner in close
proximity to appellant’s residence was evidenced by the fact that the Office’s original choice,
Dr. Hoell, was a business associate of Dr. Silverglat. The selection process was further
complicated by the fact that there were at least 17 physicians that had some prior involvement
with appellant’s case, and thus, could not be called upon to conduct an impartial medical
evaluation. There is nothing in the record to suggest that Dr. Furmansky’s selection was
improper. The Office called a list of more than 45 otherwise qualified physicians located in
Washington and Montana before selecting Dr. Furmansky. The reasons for not selecting the
other physicians varied. In some instances the physician’s contact information was either
inaccurate or incomplete. In other instances, the physician was either unavailable or unwilling to
conduct an impartial medical evaluation.14 The evidence reflects that the Office used the

13

See Frank Matkins, 43 ECAB 1072 (1992) (finding as the impartial medical specialist selected by the Office
had been associated in practice with physicians who had treated appellant following the employment injury, a new
impartial medical specialist was required).
14

The record reveals that appellant periodically traveled to the Denver region to visit family.

5

Physician Directory System in selecting the impartial medical specialist and followed its
procedures in making the referral to Dr. Furmanksy.15
Dr. Furmansky opined that none of appellant’s current psychiatric diagnoses were
causally related to the injury of June 26, 1989. He provided an extensive medical report which
reviewed appellant’s medical and psychiatric background and compared the treatment records of
physicians who had examined appellant for his accepted condition. Of note, was the diagnosis of
a preexisting emotional disorder which several physicians of record attributed to appellant’s
childhood. According to Dr. Furmansky, the employment-related aggravation of appellant’s
preexisting psychiatric condition was temporary. He cited prior medical records indicating that
appellant’s accepted condition of major depressive disorder was in remission by 1994.
Dr. Furmansky concluded that there was no “plausible or reasonable explanation” for relating the
June 26, 1989 employment incident to appellant’s current psychiatric status.
Contrary to counsel’s argument, Dr. Furmansky did not rely on a December 30, 2003
statement of accepted facts. As noted, the Office provided Dr. Furmansky with an amended
statement of accepted facts dated August 19, 2004. This latest statement of accepted facts
correctly identified appellant’s June 26, 1989 request for a desk audit as the only compensable
employment factor, which is consistent with the Office’s initial statement of accepted facts dated
April 30, 1991. The Board finds that the Office properly accorded special weight to
Dr. Furmansky opinion as the impartial medical examiner.16 The medical evidence establishes
that appellant no longer has employment-related disability or residuals due to his accepted
employment injury. The Office, therefore, met its burden of proof to terminate appellant’s
compensation and medical benefits effective February 3, 2005.
The Board notes that the case record contains medical evidence pertaining to appellant’s
heart condition. In his brief on appeal, counsel notes that he Office failed to accept or develop
the issue of permanent aggravation of cardiac disease or myocardial infarction. At the
November 8, 2006 hearing, counsel for appellant indicated that this aspect of the claim was still
open for adjudication before the Office. As this matter is in an interlocutory position, it is not an
issue before the Board in the present appeal.17
CONCLUSION
The Office met its burden to terminate compensation and medical benefits effective
February 3, 2005.

15

See William Fidurski, 54 ECAB 146 (2002).

16

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
17

20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2008
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, MAIN STREET
STATION POST OFFICE, Springfield, MA,
Employer
__________________________________________
Appearances:
Katherine Smith, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1175
Issued: December 31, 2020

Case Submitted on the Record

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

On May 19, 2020 appellant, through counsel, filed a timely appeal from a December 13,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as Docket No. 20-1175.
On January 6, 2017 appellant, then a 58-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder, neck, and mid and lower
back when he tripped while in the performance of duty. On the reverse side of the claim form the
employing establishment acknowledged that on January 6, 2017 appellant was injured while in the
performance of duty. It stated that appellant stopped work on January 7, 2017. OWCP assigned
the claim OWCP File No. xxxxxx213.

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.

In a development letter dated February 14, 2017, OWCP advised appellant that, when his
claim was first received, it appeared to be a minor injury that resulted in minimal or no lost time
from work, and it was therefore administratively approved to allow payment of a limited amount
of medical expenses. The merits of the claim, however, had not been formally adjudicated. OWCP
stated that appellant’s claim was now reopened for consideration because his medical bills
exceeded $1,500.00. It informed appellant that additional evidence was needed in support of his
claim. OWCP advised him of the type of factual and medical evidence necessary to establish the
claim. It afforded appellant 30 days to submit the requested evidence.
By decision dated April 14, 2017, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish causal relationship between
appellant’s diagnosed conditions and the accepted January 6, 2017 employment incident.
On October 27, 2017, December 28, 2018, and October 31, 2019 appellant, through
counsel, requested reconsideration. By decisions dated January 23, 2018, January 9, 2019, and
December 13, 2019, OWCP denied modification.
The Board finds that this case is not in posture for decision.
On September 26, 2009 appellant filed a traumatic injury claim (Form CA-1) alleging that
on February 21, 2009 he slipped and injured his lower back while in the performance of duty.
OWCP assigned the claim OWCP File No. xxxxxxx749. On July 29, 2010 appellant filed a
traumatic injury claim (Form CA-1) alleging that on that date he injured his lower back and neck
when he fell while in the performance of duty. It assigned the claim OWCP File No. xxxxxx174
and accepted the claim for a lumbar sprain and a back contusion. On December 18, 2011 appellant
filed an occupational disease claim (Form CA-2) alleging that on July 29, 2010 he injured his back,
neck, and shoulders while in the performance of duty. OWCP assigned the claim OWCP File
No.xxxxxx092. On January 28, 2015 appellant filed a traumatic injury claim (Form CA-1)
alleging that on January 24, 2015 he slipped and injured his mid and lower back while in the
performance of duty. OWCP assigned the claim File No. xxxxxx262. On April 9, 2016 appellant
filed a traumatic injury claim (Form CA-1) alleging that he aggravated a preexisting back injury
and injured his neck and shoulders on that date when lifting mail and twisted left while in the
performance of duty. OWCP assigned the claim OWCP File No. xxxxxxx552.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.2 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.3
As the instant claim under OWCP File No. xxxxxx213 and the claims under OWCP File
No. xxxxxx749, xxxxxx174, xxxxxx092, xxxxxx262, and xxxxxx552 all involve injuries to
appellant’s lower back, neck, and/or right shoulder, these claims must be administratively
2

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
3

Id.

2

combined for a full and fair adjudication.4 This will allow OWCP to consider all relevant claim
files and accompanying evidence in developing appellant’s current traumatic injury claim.
Accordingly, the Board will remand the case to OWCP to administratively combine OWCP
File Nos. xxxxxx213, xxxxxx749, xxxxxx174, xxxxxx092, xxxxxx262, and xxxxxx552.
Following this and such other further development as deemed necessary, OWCP shall issue a
de novo decision on appellant’s traumatic injury claim.
IT IS HEREBY ORDERED THAT the December 13, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 31, 2020
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

4

S.D., Docket No. 19-0590 (issued August 28, 2020).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Charleston, SC, Employer
__________________________________________

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

Docket No. 17-1177
Issued: November 2, 2018

Case Submitted on the Record

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

JURISDICTION
On May 8, 2017 appellant filed a timely appeal from a January 18, 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 over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the January 18, 2017 decision was
issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20
C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period November 11, 2016 to January 17, 2017, causally related to her January 25, 2016
employment injury.
FACTUAL HISTORY
On January 31, 2016 appellant, then a 31-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that she injured her neck, back, and shoulder while in the performance
of duty on January 25, 2016. She stated that while trying to assist a patient from falling, he fell on
her. The employing establishment indicated that it received conflicting accounts of the January 25,
2016 incident, noting that another nurse reported that appellant was assisting a patient with moving
his legs closer to a walker when appellant fell to her knees. The patient reportedly did not fall.
Appellant stopped work the date of the alleged injury and received continuation of pay (COP).
After further development of the record, OWCP initially denied the claim because
appellant failed to establish the medical component of fact of injury. By decision dated April 1,
2016, OWCP noted that the only medical evidence received was a February 18, 2016 work status
report consisting of diagnostic codes (M54.2 and M65.811). It explained that appellant had not
submitted a narrative medical report with a firm diagnosis as previously requested by OWCP.
Appellant returned to work on April 4, 2016.3
By two separate decisions dated July 12, 2016, OWCP vacated its April 1, 2016 decision
and accepted appellant’s claim for cervical spine ligament(s) sprain.
OWCP paid appellant compensation for intermittent wage loss (50 hours) for the period
April 4 through September 21, 2016.
On November 21, 2016 appellant filed a claim for compensation (Form CA-7) for
temporary total disability for the period November 11, 2016 to January 17, 2017.
In support of her claim, appellant submitted a November 17, 2016 work status report from
Dr. Shailesh M. Patel, a Board-certified physiatrist, who indicated the date of injury as January 25,
2016 and diagnosed cervical radiculopathy. Dr. Patel checked a box indicating that appellant’s
injury was work related and took her off work until a follow-up with rheumatology. He found that
appellant had not yet reached maximum medical improvement.
In a November 23, 2016 claim development letter, OWCP requested additional medical
evidence establishing appellant’s disability for work during the period claimed and afforded her
30 days to respond to its inquiries. It noted that the claim was only accepted for cervical strain
and a rheumatologist was not a specialist for the accepted medical condition.

3

Appellant had received COP from January 29 through April 2, 2016.

2

In response appellant submitted a November 15, 2016 cervical magnetic resonance
imaging (MRI) scan report which demonstrated mid-cervical mild disc bulges and cervical stenosis
(C5-6, C6-7).
In November 17, 2016 follow-up treatment notes, Dr. Patel noted that on January 25, 2016
appellant sustained an injury at work. He indicated that she had been diagnosed with a cervical
strain and her injury had escalated to cervical radiculopathy. Dr. Patel explained that this was
caused over time by the nerve root being pinched or irritated by a herniated disc. He found that
appellant continued to have diffuse muscular pain throughout the neck, upper back, and shoulder.
Appellant also reported paresthesias into the arm on the right side. Dr. Patel noted that all of the
diagnostic testing, including recent MRI scan, had been positive and that an epidural steroid
injection had not offered any improvement. He recommended a neurological consultation if
appellant’s paresthesias continued. Dr. Patel diagnosed cervical radiculitis and cervical
radiculopathy and opined that appellant’s conditions were work related. He also noted that she
should be off work and that she should follow up in two months.
In a November 28, 2016 work status report, Dr. Patel continued to diagnose cervical
radiculopathy and advised that appellant was to remain off work due to her work-related injury.
On December 15, 2016 Dr. Patel diagnosed cervical radiculitis and full-thickness rotator
cuff tear.
In a January 3, 2017 report, Dr. Patel continued to diagnose cervical radiculitis and cervical
radiculopathy. He reiterated appellant’s assertions that her injury occurred while she was assisting
a combative patient with an excessive amount of weight (approximately 350 to 400 pounds) from
falling on his face and hurting himself. Appellant stated that she got behind the patient applying
her arms around him to help him up and then he fell back on her causing her to fall with the patient
landing on top of her body. She struggled to remove the patient off her using her arms and muscles.
Once appellant was able to do so, she immediately felt an enormous amount of burning, pain,
weakness, and also stiffness to her cervical region (neck), upper back, and shoulders. Dr. Patel
opined that appellant’s cervical conditions were caused by the impact that her body sustained when
the patient caused her to fall with his body weight and pressure being applied on top of hers. He
further opined that she strained to remove the massive patient from her body causing tendinitis due
to overexertion and cervical radiculopathy. Dr. Patel found that a herniated disc at C5-6 caused
the nerve root impingement from the impact appellant sustained when the patient fell on her. He
took appellant off work until she visited a surgeon and neurologist for consultation.
By decision dated January 18, 2017, OWCP denied appellant’s claim for disability for the
period November 11, 2016 to January 17, 2017 because the medical evidence of record failed to
establish total disability due to the accepted employment injury.
LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
4

5 U.S.C. § 8102(a).

3

specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability for work.6
For each period of disability claimed, an employee has the burden of proof to establish that he or
she was disabled for work as a result of the accepted employment injury.7 Whether a particular
injury caused an employee to be disabled for employment and the duration of that disability are
medical issues, which must be proved by the preponderance of the reliable probative and
substantial medical evidence.8
Disability is not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages. An employee who has a physical impairment causally related to his or
her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA, and is not entitled
to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay
compensation for disability in the absence of medical evidence directly addressing the particular
period of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period November 11, 2016 to January 17, 2017, causally related to her January 25, 2016
employment injury.
OWCP accepted that she sustained a cervical sprain, however, appellant bears the burden
of proof to establish through medical evidence that she was disabled during the claimed time period
and that her disability was causally related to the accepted injury.10 The Board finds that appellant
has not submitted rationalized medical evidence explaining how the January 25, 2016 employment
injury disabled her from all work during the period November 11, 2016 to January 17, 2017.
In his reports, Dr. Patel diagnosed cervical radiculitis and cervical radiculopathy and
opined that appellant’s cervical conditions were work related. He indicated that on January 25,
2016 she sustained an injury at work. Dr. Patel noted that appellant had been diagnosed with a
cervical strain and her injury had escalated to cervical radiculopathy. He explained that this was
caused over time by the nerve root being pinched or irritated by a herniated disc. In a January 3,
2017 report, Dr. Patel further explained that appellant’s cervical conditions were caused by the
5

20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002).

6

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

Id.

10

See supra note 9. See also V.P., Docket No. 09-337 (issued August 4, 2009).

4

impact that her body sustained when the patient caused her to fall with his body weight and
pressure being applied on top of hers. He opined that she strained to remove the massive patient
from her body causing tendinitis due to overexertion and cervical radiculopathy. Dr. Patel also
found that a herniated disc at C5-6 caused the nerve root impingement from the impact appellant
sustained when the patient fell on her. Dr. Patel advised that she was to remain off work due to
her cervical radiculopathy sustained from a work-related injury. Although he opined that appellant
was totally disabled for work, his opinion is conclusory in nature and fails to explain in detail how
the accepted medical condition of sprain of ligaments of the cervical spine was responsible for her
disability and why she could not perform her federal employment during the period claimed.11
Consequently, the Board finds that Dr. Patel’s reports are insufficient to establish appellant’s claim
that she was totally disabled for the period November 11, 2016 to January 17, 2017 causally related
to her employment injuries.
The Board finds that appellant has not submitted sufficiently rationalized medical opinion
evidence establishing that she was disabled during the period November 11, 2016 to January 17,
2017 causally related to the employment injury. Thus, appellant has not met her burden of proof
to establish that she is entitled to compensation for total disability.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the period November 11, 2016 to January 17, 2017, causally related to her January 25, 2016
employment injury.

11

See J.J., Docket No. 15-1329 (issued December 18, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the January 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Monroe, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1370
Issued: April 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2016 appellant, through counsel, filed a timely appeal from a May 26, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury causally related to an April 3, 2015
employment incident.
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.

FACTUAL HISTORY
On April 29, 2015 appellant, then a 44-year-old rural letter carrier, filed a recurrence of
disability claim (Form CA-2a) alleging that on April 3, 2015 she experienced pain radiating from
her buttocks to her left leg lifting parcels out of a hamper. She related that the pain from her
original employment-related back sprain on December 10, 2013 increased on April 3, 2015.3
Appellant did not stop work and the employing establishment advised that she did not indicate
that she had “any health issues as a result of an injury.”
OWCP developed the claim as a new injury.
A magnetic resonance imaging (MRI) scan dated April 15, 2015 revealed “[a] large
central to left paracentral disc herniation with extrusion [that] contacts, flattens, deforms and
displaces the thecal sac posteriorly.” It revealed significant progression of a disc herniation at
L5-S1 compared to a prior study.
In a report dated April 23, 2015, Dr. Kenneth Rauschenback, an osteopath, discussed
appellant’s December 2013 work injury and noted that a lumbar spine MRI scan obtained in
December 2013 revealed disc bulges at L4-5 and L5-S1, but no fracture or herniation. He
obtained a history of increased pain radiating down her left leg over the past few weeks without a
new injury. Dr. Rauschenback noted that appellant could not work due to pain. He listed
examination findings and reviewed the results of a lumbar MRI scan dated April 14, 2015
showing a disc herniation with a left paracentral L5-S1 disc extrusion that seemed a progression
of the prior disc bulge. Dr. Rauschenback diagnosed low back pain, a lumbar herniated disc, and
lumbar radiculopathy.
On April 24, 2015 Dr. Enrique Sanz, a Board-certified physiatrist, noted that appellant
sustained an injury on December 10, 2013 when she slipped on ice going down stairs. Appellant
returned to work, but experienced increased symptoms two weeks before his examination.
Dr. Sanz diagnosed lumbar radiculitis/neuritis and a herniated lumbar disc at L5-S1. He related,
“[Appellant’s] work injury was on December 10, 2013 [when] she slipped on ice [and] fell
backwards. She was working until April 3, 2015 when she suffered an exacerbation also while
working.” Dr. Sanz found that appellant was totally disabled and that her symptoms and
complaints resulted from her employment injury.
Dr. Sanz, in a progress report dated June 2, 2015, reiterated that appellant had sustained a
work injury on December 10, 2013 falling backward on ice and that she had an exacerbation of
that injury on April 3, 2015 at work. He found that she could return to modified employment on
June 8, 2015. Dr. Sanz related, “I feel the current symptoms are causally related to the injury at
work. [Appellant’s] complaints are consistent with the illness/injury. [Her] history of the
injury/illness is consistent with my objective findings.”
In a duty status report (Form CA-17) dated June 2, 2015, Dr. Sanz diagnosed a herniated
disc at L5-S1 and checked a box marked “yes” that the history of a workers’ compensation injury

3

OWCP File No. xxxxxx806.

2

in December 2013 corresponded to that on the form of appellant falling on ice and injuring her
lower back on December 10, 2013.
On June 17, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) from
May 18 to June 12, 2015.
In an attending physician’s form report (Form CA-20) dated June 10, 2015, Dr. Sanz
diagnosed lumbar radiculitis, neuritis of the left lower extremity, and a herniated disc. He
checked a box marked “yes” that the condition was caused or aggravated by employment and
provided a history of her December 2013 fall down stairs on ice onto her back. Dr. Sanz opined
that appellant was disabled from April 17 to June 2, 2015.
OWCP, on July 8, 2015, advised appellant that it had initially approved payment of a
limited amount of medical expenses as her injury appeared minor and was not controverted by
the employing establishment. It was now formally adjudicating her claim. OWCP noted that the
medical evidence addressed her December 10, 2013 employment injury and did not attribute the
diagnosed conditions to the alleged April 3, 2015 work injury. It requested that appellant submit
a report from her physician explaining how the identified work incident caused or aggravated a
diagnosed condition. OWCP also asked her to provide additional factual information in support
of her claim.
In a statement dated August 4, 2015, appellant related that she told the postmaster on
April 13, 2015 that she was experiencing severe low back pain. She believed that she aggravated
her December 10, 2013 work injury.
By decision dated August 11, 2015, OWCP denied appellant’s claim for an injury on
April 3, 2015. It found that she had not submitted factual evidence supporting that the claimed
work incident occurred as alleged.
In a report dated December 7, 2015, Dr. Nicholas Renaldo, an orthopedic surgeon, related
that he initially evaluated appellant on June 6, 2014 for low back pain after a fall at work on
December 10, 2013 and that imaging studies showed a disc bulge at L4-5 and L5-S1. He noted
that on April 23, 2015 she saw a physician assistant for back pain that had increased over the
past few weeks. Dr. Renaldo reported that imaging studies now showed a disc herniation at
L5-S1 that “appeared to be progression of the disc bulge seen on the prior MRI [study].” He
diagnosed a herniated disc at L5-S1 on the left with radiculopathy and recommended surgery.
Dr. Renaldo concluded, “To reiterate, [appellant’s] condition is a result of her work-related
injury on December 10, 2013. The subsequent injury on April 3, 2015 caused an exacerbation of
the injury sustained in the prior accident. As a result of the pain and neurologic deficit caused by
these injuries, [she] is unable to work and remains temporarily totally disabled at this time.”
On March 18, 2016 appellant, through counsel, requested reconsideration. He disagreed
with OWCP’s evaluation of her notice of recurrence of disability as a new claim. Counsel
advised that the April 3, 2015 incident aggravated her prior December 10, 2013 employment
injury, accepted under file number xxxxxx806 for lumbar sprain. He argued that OWCP should
have expanded acceptance of that claim to include bulging and herniated discs. Counsel asserted
that appellant provided a statement dated August 4, 2015 responding to OWCP’s request for

3

factual information. He maintained that OWCP should have further developed the medical
evidence in accordance with its procedures.
By decision dated May 26, 2016, OWCP modified its August 11, 2015 decision to find
that appellant established the occurrence of the April 3, 2015 work incident. It determined,
however, that the medical evidence was insufficient to show the identified incident of lifting
parcels on April 3, 2015 caused or aggravated a diagnosed condition.
On appeal counsel contends that she has submitted sufficient medical evidence to
establish a medical condition due to the April 3, 2015 work incident. He further argues that
OWCP erred in not accepting additional conditions as due to the prior work injury. Counsel
maintains that OWCP acted in an adversarial manner and should have participated in
development of the evidence.
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 filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.7 An employee may establish that the employment
incident occurred as alleged, but fail to show that her disability and/or condition relates to the
employment incident.8
OWCP’s procedures provide:
“Doubling is the combination of two or more case files. It occurs when an
employee has sustained more than one injury and it is necessary to combine all of
4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

4

the records in one case folder. The case records are kept separately but travel
under one claim number, which is known as the master file.”9
Regarding when to double cases, the OWCP procedures state:
“Cases should be doubled when correct adjudication of the issues depends on
frequent cross-reference between files. Cases meeting one of the following tests
must be doubled:
(1) A new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body. For
instance, a claimant with an existing case for a back strain submits a new
claim for a herniated lumbar disc.”10
OWCP procedures further provide that cases should be doubled as soon as the need to do
so becomes apparent.11
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant sustained an initial injury on December 10, 2013, accepted by OWCP for
lumbar sprain under file number xxxxxx806. She returned to work in February 2014. On
April 29, 2015 appellant filed a recurrence of disability claim beginning April 3, 2015 alleging
that she experienced a sharp pain lifting parcels. The Board finds that OWCP properly
adjudicated the claim as a new injury as she attributed her condition to new work factors.12
On April 23, 2015 Dr. Rauschenback reviewed appellant’s history of a December 2013
employment injury. He indicated that she felt increased pain radiating into her left leg for the
last few weeks without a new injury. Dr. Rauschenback noted that an April 14, 2015 MRI scan
showed a disc herniation and disc extrusion at L5-S1 that appeared a progression from the prior
MRI scan obtained after the December 2013 injury.
In a report dated April 24, 2015, Dr. Sanz discussed appellant’s December 10, 2013 work
injury and believed that she had experienced an exacerbation of that injury on April 3, 2015. He
diagnosed lumbosacral radiculitis/neuritis and a herniated disc at L5-S1, and found that she was
totally disabled. On June 2, 2015 Dr. Sanz discussed both appellant’s December 10, 2013 work
injury and the April 3, 2015 employment incident and opined that her symptoms were due to her

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(a)
(February 2000).
10

Id. at Chapter 2.400.8(c)(1).

11

Id. at Chapter 2.400.8.

12

See id. at Recurrences, Chapter 2.1500.3(c)(5) (June 2013).

5

employment injury, noting that her complaints and history of injury were consistent with the
examination findings.13
Dr. Renaldo, on December 7, 2015, advised that he treated appellant after her
December 10, 2013 employment injury and that the diagnostic studies at that time showed a
lumbar sprain. He indicated that the most recent MRI scan revealed an L5-S1 disc herniation
and that appellant had another work injury on April 3, 2015. Dr. Renaldo diagnosed a herniated
disc at L5-S1 due to appellant’s December 10, 2013 work injury and opined that she also
experienced an aggravation of her injury on April 3, 2015.
OWCP procedures provide that cases should be combined when correct adjudication of
the issues depends on frequent cross-reference between files. If a new injury case is reported for
an employee who previously filed an injury claim for a similar condition or the same part of the
body, doubling is required.14
Cases should be combined when correct adjudication of the issues depends on frequent
cross reference between the files. In this case, the medical evidence addresses both the
December 10, 2013 work injury and the April 3, 2015 employment incident. As discussed,
OWCP procedures provide for the doubling of a claim when a new injury case is reported for an
employee who previously filed an injury claim for a similar condition for the same part of the
body.15 For a full and fair adjudication of appellant’s claims the files should be doubled. The
Board will remand the case to OWCP for doubling of file numbers with the current claim and
further development of the medical evidence to determine whether appellant sustained either an
April 3, 2015 work injury or progression of a previously accepted work injury. OWCP shall
issue a de novo decision following any necessary further development.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

In a June 10, 2015 form report, Dr. Sanz diagnosed lumbar radiculitis, left lower extremity neuritis, and a
herniated disc. He checked the box marked “yes” that the condition was work related and included a history of the
December 2013 work injury.
14

Supra note 10, at Chapter 2.400.8(c); B.I., Docket No. 14-0578 (issued July 1, 2014).

15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the May 26, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 14, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

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Appearances:
James Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2222
Issued: February 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 31, 2007 appellant filed a timely appeal of a June 27, 2007 decision of the
Office of Workers’ Compensation Programs, denying merit review of his claim. The record also
contains an August 17, 2007 decision denying a request for reconsideration as untimely. Since
more than one year has elapsed between the last merit decision on May 22, 2006 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUES
The issues are: (1) whether the Office properly denied appellant’s May 2, 2007
application for reconsideration pursuant to 5 U.S.C. § 8128(a) and the implementing regulations;
and (2) whether the Office properly denied appellant’s July 2, 2007 application for
reconsideration on the grounds that it was untimely filed.

FACTUAL HISTORY
Appellant filed a traumatic injury claim (Form CA-1) alleging that he sustained an injury
when he fell in the performance of duty on November 28, 2005. The Office accepted the claim
for bilateral hip contusions. Appellant returned to work in a light-duty position. He filed a
notice of recurrence of disability commencing March 9, 2006, indicating that he was scheduled
for hip surgery.
An Office medical adviser reviewed the medical evidence and in a March 22, 2006 report
stated that, if appellant was completely asymptomatic prior to the November 28, 2005 incident,
the fall would be an aggravation of degenerative joint disease. The medical adviser also
indicated that the degenerative joint disease would eventually have caused the need for surgery
regardless of the work injury.
The Office referred appellant for a second opinion examination by Dr. I. Ahmad, an
orthopedic surgeon. In a report dated April 24, 2006, Dr. Ahmad opined that appellant sustained
a sprain of his left hip in the November 28, 2005 incident, but the sprain had resolved. He noted
that x-rays showed evidence of preexisting arthritis and degenerative changes and appellant’s
current symptoms were due to the preexisting conditions. Dr. Ahmad opined that appellant
could return to his regular work as a tractor-trailer operator. He also opined that appellant’s
condition did not require hip surgery.
In a report dated May 18, 2006, an Office medical adviser stated that without seeing the
x-rays he would have to accept Dr. Ahmad’s opinion. He also stated that he agreed with the
prior medical adviser that the degenerative joint disease would progress and eventually require
surgery.
By decision dated May 22, 2006, the Office denied the claim for compensation. The
Office found the medical evidence was insufficient to establish a recurrence of disability.
In a letter dated May 2, 2007, appellant requested reconsideration. He stated that
Dr. Ahmad did not provide any medical rationale, and then argued that there was a conflict
between Dr. Ahmad and the March 22, 2007 report from the Office medical adviser.
By decision dated June 27, 2007, the Office determined that appellant’s request for
reconsideration was insufficient to warrant merit review of the claim. He again requested
reconsideration by letter dated July 2, 2007, submitting a May 28, 2007 report from Dr. Richard
Boiardo, an orthopedic surgeon.
In a decision dated August 17, 2007, the Office denied the July 2, 2007 application for
reconsideration. The Office stated: “the July 2, 2007 request for reconsideration is hereby
denied because it was not postmarked or dated within the one-year time limit.”
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)

2

who receives an adverse decision.1 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”2
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.3
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.4
ANALYSIS -- ISSUE 1
The claim for compensation commencing March 9, 2006 was denied on the grounds that
the medical evidence did not establish an employment-related disability. To require the Office to
reopen his claim for merit review, appellant must meet one of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted a
specific point of law, or advance a new and relevant legal argument. To the extent that appellant
raised a legal argument that a conflict under 5 U.S.C. § 8123(a) existed, he did not provide a
valid argument. A conflict cannot be created between an Office medical adviser and a second
opinion physician.5 Where the legal argument presented has no reasonable color of validity, the
Office is not required to reopen the case for merit review.6
The claim for compensation was denied based on the weight of the medical evidence, and
appellant did not submit any new and relevant medical evidence with respect to disability
commencing March 9, 2007. Appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). He did not show that the Office erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by the Office or
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.605 (1999).

3

Id. at § 10.606(b)(2).

4

Id. at § 10.608.

5

A conflict under 5 U.S.C. § 8123(a) exists only when there is a disagreement between a physician making the
examination for the United States and a physician of the employee. See Leanne E. Maynard, 43 ECAB 482,
490 (1992).
6

See Norman W. Hanson, 40 ECAB 1160 (1989).

3

submit relevant and pertinent evidence not previously considered by the Office. Accordingly,
the Office properly declined to review the merits of the case.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) does not entitle a claimant to a review of an Office decision as a matter
of right.7 This section vests the Office with discretionary authority to determine whether it will
review an award for or against compensation.8 The Office, through regulations, has imposed
limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a). As one such
limitation, the Office has stated that it will not review a decision denying or terminating a benefit
unless the application for reconsideration is filed within one year of the date of that decision.9
The Board has found that the imposition of this one-year limitation does not constitute an abuse
of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).10
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.11 In accordance with this holding the Office has stated in its procedure manual 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(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.12
ANALYSIS -- ISSUE 2
The August 17, 2007 decision finds that the July 2, 2007 application for reconsideration
was untimely as it was filed more than one year after the May 22, 2006 merit decision. It is well
established, however, that an untimely application for reconsideration must be reviewed under
the “clear evidence of error” standard to determine whether the case should be reopened for
merit review. The Office failed to properly determine whether the application for review showed
“clear evidence of error.” The August 17, 2007 decision stated that the application for
reconsideration was denied because it was untimely, without further discussion. The case will be
remanded to the Office for proper consideration of the untimely application for reconsideration.
After such further development as the Office deems necessary, it should issue an appropriate
decision.

7

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
9

20 C.F.R. § 10.607(a).

10

See Leon D. Faidley, Jr., supra note 7.

11

Leonard E. Redway, 28 ECAB 242 (1977).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

4

CONCLUSION
The Office properly denied appellant’s May 2, 2007 application for reconsideration on
the grounds that it was not sufficient to warrant merit review of the claim. With respect to the
July 2, 2007 application for reconsideration, while the application was untimely the Office failed
to consider whether it established clear evidence of error. The case is remanded for proper
consideration of the July 2, 2007 application for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2007 is set aside and the case remanded for further
action consistent with this decision of the Board. The June 27, 2007 Office decision is affirmed.
Issued: February 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5