United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 08-2055
Issued: September 23, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 27, 2008 merit decision concerning entitlement to schedule award
compensation. Pursuant to 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 his burden of proof to establish that he has more than
2 percent permanent impairment of his right leg and 10 percent permanent impairment of his left
leg, for which he received schedule awards.
FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on May 15, 2006,
which set aside the January 20, 2005 decision of the Office and remanded the case to the Office for
further development.1 The Board found that, due to an unresolved conflict in the medical
1

Docket No. 06-98 (issued May 15, 2006).

evidence, the case was not in posture for decision regarding whether appellant had more than five
percent permanent impairment of his left leg.2 The Board found that the Office properly
determined that there was a conflict in the medical evidence regarding appellant’s entitlement to
schedule award compensation between Dr. Mayoza and Dr. Robert Shackelford, a Board-certified
orthopedic surgeon, who served as an Office referral physician.3 The Board further found that the
Office properly referred appellant and the case record to Dr. Framjee for an impartial medical
evaluation and opinion on this matter.
The Board noted that, in a November 29, 2004 report, Dr. Framjee concluded that appellant
had a five percent impairment of the left leg due to sensory loss associated with the S1 nerve root
but had no impairment of the right leg. The Board found that there were various deficiencies in
Dr. Framjee’s evaluation. Although Dr. Framjee did not indicate so, it appears that he applied
Tables 15-15 and 15-18 of the A.M.A., Guides to determine that appellant had five percent
impairment of the left leg due to sensory loss associated with the S1 nerve root. The Board noted,
however, that he did not fully explain how he applied these standards to find that appellant had no
sensory loss impairment of the right leg. The Board found that additional development of the
medical evidence was needed to resolve the existing conflict in the medical evidence regarding
appellant’s permanent impairment. The facts and the circumstances of the case up to that point are
set forth in the Board’s prior decision and are incorporated herein by reference.
On remand, the Office was unable to obtain an adequate supplemental report from
Dr. Framjee and, by decision dated September 1, 2006, it remanded the case for referral to another
impartial medical specialist. In a December 5, 2006 report, Dr. C.L. Soo, a Board-certified
orthopedic surgeon, who served as an impartial medical specialist, determined that appellant had a
1 percent permanent impairment of his right leg and 10 percent permanent impairment of his left
leg. In a January 4, 2007 decision, the Office granted appellant additional schedule award
compensation to reflect this level of permanent impairment.
In a June 20, 2007 report, Dr. Richard A. Hastings, II, an attending osteopath and Boardcertified internist, discussed appellant’s medical history and reported findings on examination.
He noted that appellant complained of numbness and pain radiating into his lower extremities
with the deficits on the left being more predominate than on the right. Appellant also
2

The Office accepted that appellant sustained an employment-related herniated disc at L5-S1 due to his job duties
in 1997 and he claimed entitlement to a schedule award due to this employment-related condition. Based on the
opinion of Dr. Sami Framjee, a Board-certified orthopedic surgeon, who served as an impartial medical specialist,
the Office determined that appellant had five percent permanent impairment of his left leg. Appellant received
schedule award compensation for this degree of permanent impairment. On March 23, 1998 Dr. Mark A. Capehart,
an attending Board-certified orthopedic surgeon, performed a left L5-S1 hemilaminectomy with excision of the
herniated nucleus pulposus. On December 11, 2000 Dr. James C. Mayoza, another attending Board-certified
orthopedic surgeon, performed a repeat L5-Sl laminectomy and disc excision. Both procedures were authorized by
the Office.
3

In reports dated May 15, 2003 and June 24, 2004, Dr. Mayoza concluded that, under Tables 15-15, 15-16 and
15-18 of the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001), appellant had a 40 percent permanent impairment of his left leg and a 35 percent permanent
impairment of his right leg. In contrast, Dr. Shackelford determined in an October 16, 2003 report that appellant did
not have any permanent impairment of his lower extremities. He concluded that appellant’s medical condition was
located in his back and did not extend into his legs.

2

complained of weakness of the lower extremities with the deficits on the left being more
predominate than on the right. Dr. Hastings found that on examination he exhibited weakness of
his right quadriceps muscle (Grade 4 under Table 17-8 of the A.M.A., Guides) to strength testing
analysis and weakness in dorsiflexion and plantar flexion on the right (Grade 4). Neurosensory
assessment of appellant’s right leg revealed neurosensory loss over his right foot extending up to
the level of his right calf. Examination of appellant’s left leg revealed weakness of the left
quadriceps and hamstring (Grade 4) to strength testing analysis. Dr. Hasting indicated that he
had weakness in dorsiflexion and plantar flexion on the left and weakness of the extensor
hallucis longus on the left (Grade 4). Appellant had neurosensory loss over the left foot
involving the medial plantar surface and the anterior foot extending up bilaterally in the foot to
the level of the midcalf as shown by neurosensory testing.
Dr. Hastings found that because appellant had deficits in his legs stemming from his
work-related back injury and subsequent surgeries it was appropriate to evaluate his impairment
under Chapter 17 of the A.M.A., Guides, including application of Tables 17-8 and 17-37. He
concluded that appellant had a five percent whole person impairment due to right quadriceps
weakness; a five percent whole person impairment due to right ankle dorsiflexion weakness; a
seven percent whole person impairment due to right ankle planter flexion weakness; and a seven
percent whole person impairment on the right due to neurosensory loss over the right foot and
ankle as a result of sciatic neuropathy related to his back injury and subsequent surgeries.4
Dr. Hastings also determined that appellant had a five percent whole person impairment due to
left quadriceps weakness; a five percent whole person impairment due to left hamstring
weakness; a five percent whole person impairment due to left dorsiflexion weakness; a seven
percent whole person impairment due to left planter flexion weakness; a one percent whole
person impairment due to left extensor hallucis longus weakness and a seven percent whole
person impairment on the left due to neurosensory loss as a result of sciatic neuropathy related to
his back injury and subsequent surgeries.5
In an August 10, 2007 decision, an Office hearing representative determined that there
were deficiencies in the report of Dr. Soo. She mentioned Dr. Hasting’s June 20, 2007 report,
and noted that he provided extensive rationale for his impairment rating. The Office hearing
representative determined that additional development of the medical evidence was needed and
remanded the case to the Office for this purpose.6
4

Under Table 17-8 of the A.M.A., Guides, each 5 percent whole person impairment for strength loss would
translate to a 12 percent impairment of the right leg and the 7 percent whole person impairment for strength loss
would translate to a 17 percent impairment of the right leg. Under Table 17-37, the 7 percent whole person
impairment for sensory loss would translate to a 17 percent impairment of the right leg. See A.M.A., Guides 532,
552, Tables 17-8 and 17-37.
5

Under Table 17-8, each 5 percent whole person impairment for strength loss would translate to a 12 percent
impairment of the left leg, the 7 percent whole person impairment for strength loss would translate to a 17 percent
impairment of the left leg and the 1 percent whole person impairment for strength loss would translate to a 2 percent
impairment of the left leg. Under Table 17-37, the 7 percent whole person impairment for sensory loss would
translate to a 17 percent impairment of the left leg. See A.M.A., Guides 532, 552, Tables 17-8 and 17-37.
6

The Office hearing representative indicated that this development should include referral of Dr. Hasting’s report
to an Office medical adviser for evaluation.

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In September 2007, the Office referred appellant to Dr. Michael S. Smith, a Boardcertified orthopedic surgeon, for an examination and opinion on the extent of his permanent
impairment.7 In an October 11, 2007 report, Dr. Smith discussed appellant’s medical history and
reported findings on examination. He found that on examination appellant had 5/5 strength in his
leg muscles. With respect to sensory testing, appellant had decreased sensation with pin roll, light
touch and cotton swab testing in the anterior lateral aspects of both calves and over the dorsum of
both feet into the first toe web spaces and posterior ankles. The lower extremities had decreased
sensation in L5-S1 distributions of the anterior mid calves and posterior calves.
Dr. Smith stated that according to the fifth edition of the A.M.A., Guides appellant had a
Grade 4 sensory impairment based on Table 16-10 for peripheral nerve injury as a result of the
herniated disc. Using Table 17-37, based on Figures 17-8 and 17-9, appellant had a left lower
extremity involvement of the left branch of the sciatic nerve, superficial peroneal and sural sensory
nerves. Combining the maximum impairments for sensory nerve function for these lower
extremity nerves (17, 5 and 2 percent, respectively) he came up with 24 percent total possible
sensory impairment. After multiplying the Grade 4 sensory impairment (25 percent) in these
nerves (based on Table 16-10) times the 24 percent value, Dr. Smith arrived at 6 percent left lower
extremity impairment related to sensory deficit. With regard to the right lower extremity, he used
the maximum sensory involvement of 5 percent for the superficial peroneal nerve and the 2 percent
value for the sural nerves and derived 7 percent maximum multiple impairment which when
multiplied by the Grade 4 sensory loss (25 percent) yielded a 1.75 percent impairment for right
sensory nerve injury which rounded up to 2 percent. Dr. Smith found no loss of motor function in
either leg.
On October 30, 2007 Dr. Ronald Blum, a Board-certified orthopedic surgeon serving as an
Office medical adviser, reviewed Dr. Smith’s analysis and indicated that appellant reached
maximum medical improvement on February 25, 2008. He agreed with much of Dr. Smith’s
methodology. Dr. Blum applied the same calculations as Dr. Smith to determine that appellant had
a two percent permanent impairment of the right leg. However, for the left leg, he indicated that
Dr. Smith recommended sensory loss based on the findings in the sciatic, peroneal and sural nerves
but noted that the common peroneal nerve and sural nerve are branches of the sciatic and posited
that using the latter two nerves would result in duplication. Dr. Blum, therefore, only used sensory
loss in the sciatic nerve distribution. He multiplied the 17 percent maximum value for sensory loss
in that nerve times the Grade 4 sensory loss (25 percent) to yield a 4.25 value which rounded down
to 4 percent impairment for the sensory loss associated with the sciatic nerve. Dr. Blum noted that
appellant did not have any impairment due to motor loss and concluded that appellant had two
percent permanent impairment of his right leg and four percent permanent impairment of his left
leg.
In a November 26, 2007 decision, the Office found that Dr. Blum properly analyzed
appellant’s leg impairment. It determined that, therefore, the evidence of record showed that
appellant was not entitled to more than the schedule award compensation he received for 10
percent permanent impairment of his right leg. However, appellant was entitled to compensation
for one percent permanent impairment of the right leg in addition to the compensation he had
7

The Office clearly indicated that appellant was being referred to Dr. Smith for a second opinion examination.

4

already received for one percent permanent impairment of the right leg. In a December 3, 2007
decision, the Office granted appellant a schedule award for an additional one percent permanent
impairment of the right leg.
Appellant requested a hearing before an Office hearing representative. At the March 14,
2008 hearing, he argued that Dr. Hasting’s June 20, 2007 report provided the best assessment of
the permanent impairment of his legs. In a May 27, 2008 decision, the Office hearing
representative affirmed the Office’s prior schedule award determinations. He stated that
Dr. Smith served as an impartial medical specialist and found that the findings of Dr. Smith
combined with Dr. Blum’s analysis of these findings represented the weight of the medical
evidence with respect to appellant’s permanent impairment.8
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act9 and its
implementing regulations10 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.11
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”12 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.13 There is no provision in the Act, the Office’s regulations, or its procedures for
designating a physician an impartial medical evaluator on an after-the-fact basis.14 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of

8

The Office hearing representative indicated that appellant submitted another copy of Dr. Hasting’s June 20,
2007 report at the May 22, 2007 hearing, but he did not provide any discussion of the contents of this report.
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404 (1999).

11

Id.

12

5 U.S.C. § 8123(a).

13

William C. Bush, 40 ECAB 1064, 1975 (1989).

14

Joanne S. Rozelle, 40 ECAB 931, 939 (1989).

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such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.15
ANALYSIS
In the present case, the Office accepted that appellant sustained an employment-related
herniated disc at L5-S1 due to his job duties in 1997 and authorized low back surgeries which
were performed on March 23, 1998 and December 11, 2000. Appellant received schedule award
compensation for a 2 percent permanent impairment of his right leg and a 10 percent permanent
impairment of his left leg.
The Board finds that the case is not in posture for decision due to a conflict in the medical
evidence regarding the permanent impairment of appellant’s legs. This conflict is between
Dr. Hastings, an attending osteopath and Board-certified internist, on the one hand, and both
Dr. Smith, a Board-certified orthopedic surgeon serving as an Office referral physician, and
Dr. Blum, a Board-certified orthopedic surgeon serving as an Office medical adviser. In a May 27,
2008 Office decision, an Office hearing representative referred to Dr. Smith as an impartial
medical specialist, but he actually served as an Office referral physician.16 The Board has found
that there is no provision in the Act, the Office’s regulations or its procedures for designating a
physician an impartial medical evaluator on an after-the-fact basis.17
In an October 11, 2007 report, Dr. Smith stated that according to the fifth edition of the
A.M.A., Guides appellant had a Grade 4 sensory impairment based on Table 16-10 for peripheral
nerve injury as a result of the herniated disc. Using Table 17-37, appellant had a left lower
extremity involvement of the left branch of the sciatic nerve, superficial peroneal and sural
sensory nerves. Combining the maximum impairments for sensory nerve function for these
lower extremity nerves, (17, 5 and 2 percent, respectively) Dr. Smith came up with 24 percent
total possible sensory impairment. After multiplying the Grade 4 sensory impairment (25
percent) in these nerves (based on Table 16-10) times the 24 percent value, Dr. Smith arrived at a
6 percent left lower extremity impairment related to sensory deficit.18 With regard to the right
lower extremity, he used the maximum sensory involvement of 5 percent for the superficial
peroneal nerve and the 2 percent value for the sural nerves and derived 7 percent maximum
multiple impairment which when multiplied by the Grade 4 sensory loss (25 percent) yielded a
1.75 percent impairment for right sensory nerve injury which rounded up to 2 percent. Dr. Smith
15

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

16

At the time of the September 2007 referral to Dr. Smith, there was no conflict regarding appellant’s then
current leg impairment, which would have required referral to an impartial medical specialist. The Board notes that
more than three years had passed since the production of the medical reports by Dr. Mayoza, an attending Boardcertified orthopedic surgeon, and Dr. Shackelford, a Board-certified orthopedic surgeon serving as an Office referral
physician, which had created a conflict regarding appellant’s impairment at that earlier time. Moreover, the Office
explicitly noted in September 2007 that Dr. Smith was to provide a second opinion and it did not attempt to implement
the various procedures that would have been required for referral to an impartial medical specialist. See supra notes 12
and 13 and accompanying text describing conflicts between attending and Office physicians.
17

See supra note 14 and accompanying text.

18

See A.M.A., Guides 482, 552, Tables 16-10, 17-37.

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found no loss of motor function in either leg. In an October 30, 2007 report, Dr. Blum applied the
same calculations as Dr. Smith to determine that appellant had a two percent permanent
impairment of the right leg. For the left leg, he indicated that the only impairment was due to
sensory loss in the sciatic nerve distribution. Dr. Blum multiplied the 17 percent maximum value
for sensory loss in that nerve times the Grade 4 sensory loss (25 percent) to yield a 4.25 value,
which rounded down to 4 percent impairment for the sensory loss associated with the sciatic nerve.
He also found no loss of motor function in either leg.
In contrast, Dr. Hastings determined that appellant had a greater degree of impairment in
both legs. He not only found that appellant had a higher impairment in both legs due to sensory
loss, but he also found that appellant had significant impairment in both legs due to strength loss
whereas both Dr. Smith and Dr. Blum found no such losses. Applying Table 17-8 of the A.M.A.,
Guides for strength loss and Table 17-37 for sensory loss, Dr. Hastings concluded that appellant
had a five percent whole person impairment due to right quadriceps weakness; a five percent
whole person impairment due to right ankle dorsiflexion weakness; a seven percent whole person
impairment due to right ankle planter flexion weakness and a seven percent whole person
impairment on the right due to neurosensory loss over the right foot and ankle as a result of
sciatic neuropathy related to his back injury and subsequent surgeries. Under Table 17-8 of the
A.M.A., Guides, each 5 percent whole person impairment for strength loss would translate to a
12 percent impairment of the right leg and the 7 percent whole person impairment for strength
loss would translate to a 17 percent impairment of the right leg. Under Table 17-37, the 7
percent whole person impairment for sensory loss would translate to a 17 percent impairment of
the right leg.19 Dr. Hastings also determined that appellant had a five percent whole person
impairment due to left quadriceps weakness; a five percent whole person impairment due to left
hamstring weakness; a five percent whole person impairment due to left dorsiflexion weakness; a
seven percent whole person impairment due to left planter flexion weakness; a one percent whole
person impairment due to left extensor hallucis longus weakness and a seven percent whole
person impairment on the left due to neurosensory loss as a result of sciatic neuropathy related to
his back injury and subsequent surgeries. Under Table 17-8, each 5 percent whole person
impairment for strength loss would translate to a 12 percent impairment of the left leg, the 7
percent whole person impairment for strength loss would translate to a 17 percent impairment of
the left leg, and the 1 percent whole person impairment for strength loss would translate to a 2
percent impairment of the left leg. Under Table 17-37, the 7 percent whole person impairment
for sensory loss would translate to a 17 percent impairment of the left leg.20
Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence regarding the permanent impairment of appellant’s legs.
On remand, the Office should refer appellant along with the case file and the statement of
19

See A.M.A., Guides 532, 552, Tables 17-8 and 17-37.

20

See id. The Board notes that Dr. Hastings’ opinion with respect to sensory loss in appellant’s legs also differed
from those of Dr. Smith and Dr. Blum in that he only found sensory loss in appellant’s sciatic nerves. However,
Dr. Hastings found that the impairment in these nerves were greater than the total sensory loss found by Dr. Smith
and Dr. Blum. While he did not fully explain why he found such a high level of sensory loss in appellant’s legs, at
the very least his report creates a conflict with those of Drs. Smith and Blum regarding the strength losses in his
legs.

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accepted facts, to an appropriate specialist for an impartial medical evaluation and report
including a rationalized opinion on this matter. After such further development as it deems
necessary, the Office should issue an appropriate decision regarding appellant’s leg impairment.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met his burden of proof to establish that he has more than a 2 percent permanent impairment of
his right leg and a 10 percent permanent impairment of his left leg, for which he received
schedule awards. Due to a conflict in the medical evidence, the case is remanded to the Office
for further development of the medical evidence to be followed by an appropriate Office
decision.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 27, 2008 decision is set aside and the case remanded to the Office for proceedings
consistent with this decision of the Board.
Issued: September 23, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 20-1290
Issued: July 21, 2021

Case Submitted on the Record

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

JURISDICTION
On June 9, 2020 appellant filed a timely appeal from a February 4, 2020 no merit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days have elapsed
from OWCP’s last merit decision, dated December 6, 2019, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 23, 2019 appellant, then a 33-year-old city carrier assistant 1, filed a traumatic
injury claim (Form CA-1) alleging that on October 21, 2019 she injured her right foot when she
slipped on an acorn while in the performance of duty. She stopped work on October 21, 2019.
In an October 22, 2019 statement, appellant recounted that she tripped over an acorn on
October 21, 2019, at approximately 3:10 p.m., while in the performance of duty.
Appellant’s supervisor, T.M., indicated in an October 23, 2019 statement, that appellant
notified her on October 22, 2019 that she had tripped on an acorn while delivering mail on
October 21, 2019, alleging that she felt pain in the tendon of her right foot. She noted that appellant
initially refused medical treatment.
In an October 23, 2019 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical care for tendinitis in her right foot.
In a November 5, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of medical evidence needed
and afforded her 30 days to submit the necessary evidence.
Dr. Adam Kaplan, a podiatrist, noted in an October 24, 2019 duty status report (Form CA17), that appellant was injured on October 21, 2019 and observed that she had tenderness to
palpation and restricted range of motion. He provided work restrictions.
In an attending physician’s report, Part B of the Form CA-16, dated October 25, 2019,
Dr. Adam Kaplan indicated that appellant’s preexisting posterior tibial tendon dysfunction was
asymptomatic until recently. He checked a box marked “Yes,” indicating that her posterior tibial
tendon dysfunction was caused or aggravated by an employment activity.
In an October 26, 2019 attending physician’s report (Form CA-20), Dr. Adam Kaplan
noted that appellant had preexisting posterior tibial tendon dysfunction in her right foot. He
diagnosed posterior tendinitis in the same foot and checked a box marked “Yes,” indicating that
the diagnosed condition was caused or aggravated by an employment activity.
In a November 7, 2019 work capacity evaluation report (Form OWCP-5c), Dr. Warren E.
Kaplan, a podiatrist, diagnosed right posterior tibial tendon tendinitis/dysfunction and indicated
that appellant could only work with light-duty restrictions for at least six months.
By decision dated December 6, 2019, OWCP denied appellant’s traumatic injury claim,
finding that, while the October 21, 2019 employment incident occurred as alleged, the medical
evidence of record was insufficient to establish causal relationship between her diagnosed right
foot condition and the accepted employment incident.
On an appeal request form dated January 4, 2020, and postmarked January 10, 2020,
appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review.

2

By decision dated February 4, 2020, OWCP denied appellant’s hearing request. It found
that the request was untimely filed as it was postmarked January 10, 2020, more than 30 days after
its December 6, 2019 merit decision. After exercising its discretion, OWCP further found that the
issue in the case could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”2
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.3 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.4 Although there is no right to a review of the written record or an oral hearing, if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.5
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
Appellant sought review of a December 6, 2019 OWCP decision by requesting an oral
hearing before a representative of OWCP’s Branch of Hearings and Review on an appeal request
form dated January 4, 2020 and postmarked January 10, 2020. OWCP denied her request for a
hearing in a decision dated February 4, 2020, finding that her request was not timely filed. The
30-day time period for determining the timeliness of her hearing request ended on January 5, 2020,
a Sunday.6 The first regular business day after January 5, 2020 was Monday, January 6, 2020.
The January 4, 2020 hearing request was postmarked January 10, 2020. Because the postmark
date of the hearing request was more than 30 days after the date of OWCP’s December 6, 2019

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. §§ 10.616, 10.617.

4

Id. at § 10.616(a).

5
D.S., Docket No. 19-1764 (issued March 13, 2020); E.D., Docket No. 19-1562 (issued March 3, 2020); Eddie
Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).
6

J.M., Docket No. 19-1111 (issued November 20, 2019); Eddie Franklin, id. (The 30-day period for determining
the timeliness of an employee’s request for an oral hearing or review commences the day after the issuance of OWCP’s
decision). See also Donna A. Christley, 41 ECAB 90 (1989).

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decision, the Board finds that it was untimely filed and appellant was not entitled to a hearing as a
matter of right.7
Although appellant’s request for an oral hearing was untimely filed, OWCP has the
discretionary authority to grant the request and it must exercise such discretion.8 The Board finds
that in the February 4, 2020 decision, OWCP properly exercised its discretion by determining that
the issue in the case could be equally well addressed by a request for reconsideration before OWCP
along with submitting additional medical evidence. The Board has held that the only limitation on
OWCP’s authority is reasonableness.9 An abuse of discretion is generally shown through proof of
manifest error, a clearly unreasonable exercise of judgment, or actions taken, which are contrary
to both logic and probable deductions from established facts.10 In this case, the evidence of record
does not indicate that OWCP abused its discretion by denying appellant’s request for an oral
hearing. Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral
hearing before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).11

7

Id.

8

Id.

9

S.M., Docket No. 19-0989 (issued May 12, 2020); D.R., Docket No. 19-1899 (issued April 15, 2020).

10

Id.

11

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2021
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J. G., Appellant
and
PEACE CORPS, Yerevan, Armenia, Employer
__________________________________________

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

Docket No. 06-2151
Issued: February 28, 2006

Case Submitted on the Record

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

JURISDICTION
On September 25, 2006 appellant filed a timely appeal from a July 19, 2006 merit
decision of the Office of Workers’ Compensation Programs denying her claim for disability
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that she was disabled beginning July 14,
2005 due to her accepted employment injury.
FACTUAL HISTORY
On August 29, 2005 appellant, then a 58-year-old former peace corps volunteer, filed a
claim for a traumatic injury in March 2004 to her neck, shoulder, arm and right side sustained
when she was thrown against other passengers on a bus which skidded on ice in Armenia. She
received treatment for her injury in Armenia. In October 2004, appellant was medically
evacuated to the United States because of her continued complaints of pain. In a report dated
October 25, 2004, Dr. Peter A. Moskovitz, Board-certified orthopedic surgeon, discussed her

history of right neck pain after a motor vehicle accident in Armenia. He diagnosed cervical
spondylosis and cervicobrachialgia and recommended a magnetic imaging resonance (MRI)
scan. In a progress report dated November 1, 2004, Dr. Moskovitz noted that an MRI scan
revealed a new disc herniation on the right side at C5-6 “concordant with appellant’s symptoms.”
Appellant returned to Armenia and completed her tour of service on July 14, 2005. On
October 14, 2005 the Office accepted her claim for cervicobrachial syndrome. On January 3,
2006 appellant filed a claim for compensation on account of disability (Form CA-7), requesting
compensation beginning July 14, 2005.
On August 4, 2005 Dr. Sadie Arrington, Board-certified in family practice, diagnosed
essential benign hypertension, paresthesias and diarrhea. On August 26, 2005 she diagnosed
neck and limb pain.
On September 15, 2005 Dr. David L. Hammer, Board-certified in family medicine,
discussed appellant’s complaints of pain on January 7, 2004 after riding on public transportation.
He noted that she had been diagnosed with cervical spondylosis and cervicobrachialgia.1
In a form report dated September 19, 2005, Dr. Wan-jiu Chen, an internist, diagnosed
cervicobrachial syndrome and checked “yes” that the injury was caused or aggravated by the
described employment incident of a bus accident in Armenia in 2004. He did not indicate any
dates of total or partial disability. In a narrative report of the same date, Dr. Chen discussed
appellant’s history of being thrown inside a bus in Armenia in 2003. He noted that the pain
medication she took for the injury “seemed to be less effective recently.” Dr. Chen suspected a
“rather severe whiplash injury of the neck with resultant neck strain.”
In reports dated December 21, 2005, Dr. Fred C. Williams, Jr., a Board-certified
neurosurgeon, described appellant’s history of an employment injury while in Armenia with a
history of pain in the neck and right upper extremity. He described her complaints of numbness
and tingling in the right hand. Dr. Williams listed findings of “[n]eck pain and radiculopathy in
the distribution of C6 with correlated weakness and hypertension.” He diagnosed cervical
radiculopathy “likely secondary to [a] herniated nucleus pulposus.” Dr. Williams suspected
nerve root compression from the HNP at C5-6 and recommended an MRI scan.2
By letter dated March 24, 2006, the Office requested additional factual and medical
information from appellant, including a comprehensive medical report addressing her current
condition and its relationship to her federal employment. In a response received April 3, 2006,
appellant described her pain in the neck, shoulder, arm, hand and right side of the back. She
noted that she was depressed and related that she worked part time “in an after school program.”
In a report dated February 15, 2006, Dr. Williams discussed appellant’s complaints of
pain and numbness, tingling and weakness in the right upper and lower extremity. He diagnosed
1

In an addendum dated December 30, 2005, Dr. Hammer discussed appellant’s hypertension.

2

The record also contains reports dated December 27, 2005 and January 9, 2006 by a physician’s assistant
associated with Dr. Williams.

2

herniated discs at C5-6 and C6-7 with radiculopathy. Dr. Williams recommended surgical
intervention. On March 28, 2006 He related that appellant was partially disabled due to cervical
intervertebral disc displacement and cervical spinal stenosis. He noted that she could not lift
over 25 pounds or engage in vigorous activity.
In a letter dated April 11, 2006, Dr. Bruce Kenofer, Ph.D a licensed clinical psychologist,
noted that appellant was “struggling with symptoms of depression in reaction to physical injuries
that she received” while working for the employing establishment. He found that she had trouble
with daily activities “due to her physical symptoms as well as her feelings of depression.”
Dr. Kenofer recommended psychotherapy.
By decision dated July 19, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence was insufficient to establish that she was disabled beginning July 2005 due
to her accepted employment injury.
LEGAL PRECEDENT
Section 10.730 of Title 20 of the Code of Federal Regulations addresses the issue of the
conditions of coverage for Peace Corps volunteers injured while serving outside the United
States. This regulation interprets section 8142(c)(3) of the Federal Employees’ Compensation
Act.3 Section 10.730 provides that an injury sustained by a Peace Corps volunteer while he or
she is located outside the United States shall be presumed to have been sustained in the
performance of duty and any illness contracted during such time shall be presumed to be
proximately caused by the employment. However, this presumption will be rebutted by evidence
that the injury or illness was caused by the claimant’s willful misconduct, intent to bring about
the injury or death of self or another, or was proximately caused by the intoxication by alcohol or
illegal drugs of the injured claimant; or the illness is shown to have preexisted the period of
service abroad; or the injury or illness is a manifestation of symptoms of or consequent to, a
preexisting congenital defect or abnormality.
The Board notes that the term disability as used in the Act means the incapacity because
of an employment injury to earn the wages that the employee was receiving at the time of
injury.4 Whether a particular injury caused an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.5 When the medical evidence
establishes that the residuals of an employment injury are such that, from a medical standpoint,
they prevent the employee from continuing in the employment held when injured, the employee
is entitled to compensation for any loss of wage-earning capacity resulting from such incapacity.6
The Board will not require the Office to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is

3

5 U.S.C. §§ 8101-8193; § 8142.

4

Sean O’Connell, 56 ECAB ___ (Docket No. 04-1746, issued December 20, 2004).

5

Paul E. Thames, 56 ECAB ___ (Docket No. 04-1019, issued April 26, 2005).

6

Id.

3

claimed. To do so would essentially allow employee’s to self-certify their disability and
entitlement to compensation.7
ANALYSIS
The Office accepted that appellant sustained cervicobrachial syndrome due to a
March 2004 injury while working in Armenia for the employing establishment. She completed
her term of employment on July 14, 2005. On January 3, 2006 appellant filed a claim requesting
disability compensation beginning July 14, 2005.
In a report dated August 4, 2005, Dr. Arrington diagnosed benign hypertension,
paresthesias and diarrhea. On August 26, 2005 she diagnosed neck and limb pain. Dr. Chen, in
a report dated September 19, 2005, diagnosed cervicobrachial syndrome and checked “yes” that
the condition was caused or aggravated by appellant’s 2004 employment injury. He opined that
appellant sustained a “rather severe whiplash injury of the neck with resultant neck strain” due to
her injury on a bus in Armenia. Dr. Hammer, in a report dated September 15, 2005, reviewed
appellant’s complaints since her 2004 injury on public transportation and noted that she had been
diagnosed with cervical spondylosis and cervicobrachialgia. None of the physicians, however,
found that she was totally disabled from employment and thus, these reports are of little
probative value. The Board does not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.8
On December 21, 2005 Dr. Williams described appellant’s employment injury and
subsequent complaints of neck and right upper extremity pain with numbness and tingling in the
right hand. He diagnosed cervical radiculopathy most likely due to a herniated disc at C5-6. In a
report dated February 15, 2006, Dr. Williams diagnosed herniated discs with radiculopathy at
C5-6 and C6-7. He recommended surgery. Dr. Williams did not address the relevant issue of
whether appellant was disabled due to her employment injury and thus, his opinion is insufficient
to meet her burden of proof.9
In a letter dated March 28, 2006, Dr. Williams opined that appellant was partially
disabled due to cervical intervertebral disc displacement and cervical spinal stenosis. He noted
that she could not lift over 25 pounds or engage in vigorous activities.10 Dr. Williams, however,
did not discuss the cause of appellant’s cervical disc displacement and spinal stenosis. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Id.

9

Id.

10

The record contains reports dated December 27, 2005 and January 9, 2006 signed only by a physician’s
assistant. These reports are of no probative value as a physician’s assistant is not considered a physician under the
Act. See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

4

employee’s condition is of diminished probative value on the issue of causal relationship.11
Moreover, Dr. Williams did not provide any objective medical evidence supporting his disability
findings. Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.12
On April 11, 2006 Dr. Kenofer, diagnosed depression due to physical injuries appellant
sustained while working for the employing establishment. The Office has not accepted
appellant’s claim for depression. Thus, it is her burden to establish that the diagnosed condition
was due to the accepted work injury through the submission of rationalized medical evidence.13
Dr. Kenofer did not provide any rationale for his finding that appellant sustained depression due
to her employment injury. Further, he noted that appellant had “increasing difficulties in
functioning” due to her physical symptoms and depression, but did not assert that she was
disabled from work for any particular date.14 Dr. Kenofer’s opinion is insufficient to show that
she was disabled beginning July 14, 2005 due to her employment injury.
The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by probative medical evidence.15 As the record
contains no rationalized medical evidence supporting that appellant was disabled beginning
July 14, 2005 she has not met her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she was disabled beginning
July 14, 2005 due to her accepted employment injury.

11

Conrad Hightower, 54 ECAB 796 (2003).

12

See Fereidoon Kharabi, supra note 7.

13

See Joan R. Donovan, 54 ECAB 615 (2003).

14

See Fereidoon Kharabi, supra note 7.

15

See Paul E. Thames, supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 19, 2006 is affirmed.
Issued: February 28, 2006
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RICHARD L. ROUDEBUSH MEDICAL
CENTER, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 10-488
Issued: August 19, 2010

Case Submitted on the Record

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

JURISDICTION
On December 16, 2009 appellant filed a timely appeal of a July 13, 2009 Office of
Workers’ Compensation Programs’ merit decision denying a right shoulder condition. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
right shoulder condition due to factors of his federal employment.
FACTUAL HISTORY
On April 17, 2009 appellant, then a 49-year-old housekeeping aid, filed an occupational
disease claim alleging that he developed a strain in his right shoulder due to his federal job
duties. Appellant first became aware of his condition on April 20, 2007.
Appellant submitted an April 24, 2009 note from Dr. Dale Snead, a Board-certified
orthopedic surgeon, who described appellant’s current symptoms of right shoulder pain. He

noted that appellant had previously undergone left shoulder surgeries. Dr. Snead examined xrays and found moderate degenerative changes in the right shoulder joint. He diagnosed right
rotator cuff tendinitis and impingement. Dr. Snead stated that appellant was interested in
surgical options.
In a letter dated May 12, 2009, the Office requested additional factual and medical
evidence in support of appellant’s claim and allowed 30 days for a response. On June 8, 2009
the Office granted appellant an additional 30 days to submit medical evidence. Appellant
responded on July 8, 2009 and attributed his right shoulder condition to “pulling dirty linen to
wash.” He stated that Dr. Snead told him at the time of his March 2, 2006 left shoulder surgery
that he would need right shoulder surgery. Appellant attributed his condition to his prior injury
“Because my right shoulder was taking the blunt away from the left shoulder.” He did not have
any additional medical evidence to submit.
By decision dated July 13, 2009, the Office denied appellant’s claim on the grounds that
he failed to submit sufficient medical evidence to establish a causal relationship between his
employment duties and right shoulder condition.
LEGAL PRECEDENT
The Office regulations define an occupational disease as “a condition produced by the
work environment over a period longer than a single workday or shift.”1 To establish that an
injury was sustained in the performance of duty in an occupational disease claim, a claimant
must submit the following: (1) medical evidence establishing the presence or existence of the
disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. The evidence required to
establish causal relationship is rationalized medical opinion evidence, based upon a complete
factual and medical background, showing a causal relationship between the claimed condition
and identified factors. The belief of a claimant that a condition was caused or aggravated by the
employment is not sufficient to establish causal relation.2
ANALYSIS
Appellant alleged that he developed a right shoulder condition due to his employment
activities of pulling dirty linen to wash. He also attributed it to his prior left shoulder condition.
In support of his claim, appellant submitted an April 24, 2009 note from Dr. Snead, a Boardcertified orthopedic surgeon, who diagnosed right rotator cuff tendinitis and impingement.
Dr. Snead did not address causal relation or appellant’s work as a housekeeping aid. He did not
describe appellant’s normal employment activities, did not list pulling dirty linen to wash as
1

20 C.F.R. § 10.5(q).

2

Lourdes Harris, 45 ECAB 545, 547 (1994).

2

contributing to appellant’s right shoulder condition or attribute appellant’s right shoulder
condition in any way to his federal employment. Dr. Snead’s April 24, 2009 treatment note is
the only medical evidence of record.
Dr. Snead did not mention any of appellant’s employment activities including the
implicated activity of pulling dirty linen. He did not describe the physical movements required
to pull dirty linen. Dr. Snead did not offer any reason how appellant’s right shoulder condition
would be due to employment activities. He did not offer an opinion that pulling dirty linen to
wash or any other employment activity caused or contributed to appellant’s right shoulder
condition. As there is no medical evidence in this record discussing appellant’s employment
activities and concluding that these employment activities caused or contributed to appellant’s
right shoulder condition, appellant failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish his right
shoulder condition is due to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lexington, KY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1100
Issued: May 7, 2021

Case Submitted on the Record

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

On April 29, 2020 appellant filed a timely appeal from a November 1, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1100.1
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior orders are incorporated herein by reference. The relevant facts are
as follows.
On April 22, 2004 appellant, then a 49-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained injuries to her neck and right upper extremity due
to her federal employment duties on or about April 20, 2004. OWCP accepted appellant’s claim
1

The Board notes that following the November 1, 2019 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.
2
Order Remanding Case, Docket No. 16-1761 (issued December 21, 2016); Order Remanding Case, Docket No.
18-1654 (issued August 20, 2019).

for disc herniation at the C6-7 level with radiculopathy and appellant underwent OWCPauthorized anterior cervical discectomy/fusion surgery at C6-7 on September 30, 2004. In
December 2009, OWCP expanded the accepted conditions to include C5-6 herniated disc with
degenerative changes. It later found that appellant was entitled to wage-loss compensation for
disability from work retroactive to April 24, 2008 and placed her on the periodic rolls. In
March 2012, appellant’s rehabilitation counselor determined that she was capable of earning
wages in the constructed position of receptionist. The physical requirements of the position were
within the October 25, 2012 work restrictions of Dr. Theodore T. Le, a Board-certified orthopedic
surgeon who served as an OWCP referral physician.
On May 17, 2013 OWCP issued a formal loss of wage-earning capacity (LWEC)
determination based upon appellant’s ability to earn $318.00 per week as a receptionist and it
adjusted appellant’s wage-loss compensation commencing June 2, 2013 based on this
determination. By decisions dated July 15, 2014 and February 9, 2015, it denied modification of
the May 17, 2013 LWEC determination.
On February 12, 2016 appellant requested reconsideration and submitted medical
evidence, which she believed showed she could no longer work as a receptionist, including a
December 11, 2014 report of Dr. Mark A. Deloma and a September 9, 2015 report of Dr. Karim
Rasheed, both Board-certified in anesthesiology.
By decision dated February 29, 2016, OWCP refused to reopen appellant’s case for further
review of the merits of her claim because the February 12, 2016 request for reconsideration was
untimely filed and failed to demonstrate clear evidence of error.
Appellant appealed the February 29, 2016 decision to the Board and, by order dated
December 21, 2016,3 the Board set aside the February 29, 2016 decision and remanded the case to
OWCP for further development. The Board found that appellant had raised the issue of whether
modification of the May 17, 2013 LWEC determination was warranted and directed OWCP to
consider this matter on remand and issue an appropriate decision. On remand, OWCP issued an
April 12, 2017 decision in which it determined that appellant had not met her burden of proof to
modify its May 17, 2013 LWEC determination.
On July 10, 2018 appellant requested reconsideration and, in a July 2, 2018 letter received
on July 10, 2018, she argued that her employment-related medical condition had materially
changed such that modification of OWCP’s May 17, 2013 LWEC determination was warranted.
She submitted a number of medical reports, including a January 11, 2018 report from
Dr. Robert D. Owen, a Board-certified neurosurgeon, who noted her complaints of left-sided neck
pain radiating into the left hand, diagnosed cervical disc disorder with radiculopathy, and
recommended anterior cervical discectomy/fusion surgery at C5-6. Appellant also submitted an
April 23, 2018 report from Dr. John J. Vaughan, a Board-certified orthopedic surgeon, who noted
that she reported experiencing increased cervical pain, which radiated into her left arm.
Dr. Vaughan indicated that a December 1, 2017 magnetic resonance imaging (MRI) scan of
appellant’s cervical spine showed a moderate disc herniation at C5-6, which was not present in a
3

Id.

2

2013 cervical spine MRI scan and he recommended anterior cervical discectomy/fusion surgery at
C5-6. Appellant submitted a copy of the December 1, 2017 MRI scan.
By decision dated July 25, 2018, OWCP denied appellant’s request for reconsideration of
the merits of her claim, finding that the July 10, 2018 request was untimely filed and failed to
demonstrate clear evidence of error.
Appellant appealed the July 25, 2018 decision to the Board and, by order remanding case
dated August 20, 2019,4 the Board set aside the July 25, 2018 decision and remanded the case to
OWCP for further development. The Board found that appellant had raised the issue of whether
modification of the May 17, 2013 LWEC determination was warranted, and it directed OWCP to
issue a de novo decision after evaluating the new evidence submitted by appellant to determine if
modification of the prior LWEC determination was warranted.
By decision dated November 1, 2019, OWCP determined that appellant had not met her
burden of proof to modify its May 17, 2013 LWEC determination. It advised that it had reviewed
the following evidence it had received from appellant: medical reports dated February 7, April 24,
September 6, and October 8, 2019.5
Since the Board’s jurisdiction of a case is limited to reviewing the evidence which is before
OWCP at the time of its final decision,6 it is necessary that OWCP review all evidence submitted by
a claimant and received by OWCP prior to issuance of its final decision. As the Board’s decisions
are final as to the subject matter appealed,7 it is crucial that all evidence relevant to that subject matter
which was properly submitted to OWCP prior to the time of issuance of its final decision be
addressed by OWCP.8
In the present case, OWCP did not review evidence received prior to the issuance of its
November 1, 2019 decision, i.e., the January 11, 2018 report from Dr. Owen, the April 23, 2018
report from Dr. Vaughan, and the December 1, 2017 MRI scan. The Board, therefore, must set
aside the November 1, 2019 decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of this decision.
Following such further consideration and after such further development as it deems necessary,
OWCP shall issue an appropriate decision regarding appellant’s request for modification of the
May 17, 2013 LWEC determination.

4

Supra note 2.

5
Each of the reports was produced by Dr. Rasheed. Appellant submitted the reports to OWCP between March 4
and October 26, 2019.
6

20 C.F.R. § 501.2(c).

7

Id. at § 501.6(d).

8
T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

3

IT IS HEREBY ORDERED THAT the November 1, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: May 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIEL COMMAND, Texarkana, TX,
Employer
__________________________________________

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

Docket No. 12-599
Issued: October 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 17, 2012 appellant filed a timely appeal from a July 21, 2011 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
medical benefits on the grounds that he no longer had any residuals causally related to his
accepted employment-related injuries; and (2) whether appellant has established that his claim
should be expanded to include additional lumbar conditions due to the May 10, 1994
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 17, 1994 appellant, then a production coordinator, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a back injury on May 10, 1994 when he fell to the floor
after his work chair fell backwards. OWCP accepted the claim for lumbar strain and later
expanded the claim to include herniated disc, L4-5.
Appellant stopped work on June 9, 1994. OWCP authorized his December 27, 1994
surgery for lumbar laminectomy with bilateral L4-5 discectomy and bony decompression L4-5
bilaterally. Appellant was released to return to his regular work duties which were sedentary in
nature on April 7, 1995. He refused to return to work and retired in 1997. OWCP authorized
surgery again and on November 22, 2004, appellant underwent a decompressive laminectomy L3
and upper L4 with bilateral foraminotomy.
OWCP approved appellant’s November 22, 2004 surgery for decompressive
laminectomy L3 and upper L4 with bilateral foraminotomy. In a November 22, 2004 operative
report, Dr. David A. Cavanaugh noted that he presented with progressive neurogenic
claudication and back and leg pain. The magnetic resonance imaging (MRI) scan showed
significant stenosis at L3-4 with bulging of the disc on the left side and postsurgical changes
were seen at L4-5, which required surgery for his lumbar spinal stenosis at L3-4.
In medical reports dated December 12, 2006 to May 3, 2010, Dr. Kathleen Majors, a
Board-certified anesthesiologist, reported that appellant lived an active lifestyle and worked with
his family in the deer meat processing business. Appellant complained of continued lower back
pain. Dr. Majors diagnosed postlumbar puncture syndrome (PLPS) in 1994 and 2004 from an
on-the-job injury in May 1994 and bilateral lumbosacral radiculopathy. She recommended
steroid injections.
By letter dated April 14, 2010, OWCP requested additional factual and medical evidence
in order to further review appellant’s request for continued medical treatment.
In a May 10, 2010 narrative statement, appellant reported that for the last two years, he
was unable to take steroid injections due to a blood clot and blood thinner medication. He stated
that he was advised that he could temporarily come off of the blood thinner to have a series of
injections for his back pain. Appellant further noted that he tries to remain as active as possible
because sedentary situations compound his back pain and problems.
On May 11, 2010 OWCP noted that appellant’s request for spinal injections could not be
approved until further development.
By decision dated July 7, 2010, OWCP terminated appellant’s compensation benefits and
denied his request for medical treatment for failing to submit medical evidence which explained
the need for ongoing treatment. It noted that any prior authorization for medical treatment was
terminated.
By letter dated July 28, 2010, appellant requested review of the written record before the
Branch of Hearings and Review.

2

In support of his request, appellant submitted a July 26, 2010 letter from Dr. Majors, who
stated that she had been treating him since March 20, 1997 for pain related to his May 10, 1994
work injury. Dr. Majors noted that treatment had been authorized since March 20, 1997 for his
chronic pain while under her care. She stated that Dr. Cavanaugh referred appellant after his
back surgery in 2004. Dr. Majors further stated that the chronic back pain after his surgery
persisted and was related to the original work injury. She stated that there had been no changes
since her office initially began treating appellant in 1997. Dr. Majors concluded that his chronic
pain was likely a lifelong problem, which required office visits every three months for evaluation
and medication.
By decision dated December 7, 2010, the hearing representative vacated the July 7, 2010
decision and remanded the case with instructions for OWCP to further develop the medical
evidence. OWCP noted that the case was initially accepted for a herniated disc at the L4-5 level.
However, surgery was authorized at the L3-4 level in November 2004 despite the fact that
OWCP had not formally accepted a condition at the L3-4 level. On remand, the hearing
representative instructed OWCP to refer appellant, along with a statement of accepted facts and
the case record, to an appropriate specialist to determine whether appellant’s claim should be
expanded to include herniation at the L3-4 level, whether he continued to experience residuals of
his employment-related condition and whether pain management and/or epidural steroid
injections were indicated.
In support of his claim, appellant submitted a February 14, 2011 medical report from
Dr. Rachel H. King, Board-certified in internal medicine, who reported that he continued to
suffer from chronic low back pain and underwent surgery in 1994 to fuse L4-5. Dr. King noted
that he was unable to take epidural steroid injections over the last two years because of his
Coumadin medication for his lower extremity deep vein thrombosis and discontinued Coumadin
in order to treat his back condition with steroid injections.
OWCP referred appellant, the case file, a statement of accepted facts and a series of
questions to Dr. Robert Holladay, a Board-certified orthopedic surgeon, for a second opinion
medical examination. In his April 5, 2011 medical report, Dr. Holladay provided a summary of
appellant’s past medical reports and diagnosed degenerative disc disease of the lumbar spine,
postoperative lumbar laminectomy/discectomy at L4-5 and postoperative laminectomy at L3-4.
He stated that appellant likely had underlying preexisting degenerative disc condition of the
lumbar spine and sustained a strain/sprain after the May 10, 1994 employment incident.
Dr. Holladay noted that he was not provided with any diagnostic studies other than appellant’s
May 17, 1994 nerve conduction study. The nerve conduction study showed moderate bilateral
L5 and S1 radiculopathies, consistent with disc degeneration of the lumbar spine and most likely
lumbar stenosis, all of which were preexisting conditions not caused by a specific work injury.
When asked if appellant had any residuals resulting from the May 10, 1994 incident,
Dr. Holladay stated that appellant had residuals of back pain, leg pain, numbness and tingling
and had residuals from his lumbar spine surgical procedures, which were accepted for medical
treatment by OWCP. He recommended pain management with epidural steroid injections once a
year and opined that appellant’s current lumbar condition was contributed from the May 10,
1994 employment incident. Dr. Holladay concluded that appellant would have reached
maximum medical improvement within four to six months after his surgical procedures and was
physically capable of doing his activities on the cattle ranch.

3

By letter dated May 5, 2011, OWCP requested Dr. Holladay provide clarification on his
report and asked whether appellant’s lumbar condition would have progressed to the point where
it was today irrespective of the May 10, 1994 employment incident. It also provided the
physician with additional diagnostic studies performed on June 6, 1994, January 16, 1997,
October 30, 2003 and October 14, 2004, which were not included with the initial case record.
In a June 3, 2011 addendum report, Dr. Holladay stated that appellant’s June 6, 1994
MRI scan revealed underlying preexisting multiple level spondylitic and degenerative changes.
There were changes noted at L4-5 with a broad base disc protrusion secondary to degeneration
with associated facet degeneration. Dr. Holladay noted that traumatic events short of fracture or
dislocation were not likely to result in progressive degeneration of the spine, which was
predominantly related to genetics according to medical literature. He opined that appellant
sustained a traumatic event resulting in low back pain, however, this event was not the producing
cause of the disc degeneration at multiple levels in the lumbar spine. Dr. Holladay further stated
that the bulging disc noted at L4-5 was also not the result of this mechanism of injury and there
was no documented objective evidence of an aggravation or acceleration of the preexisting disc
degeneration. He stated that, in the absence of any reported injury, appellant’s farming activities
would not have caused an aggravation or acceleration of his preexisting condition of
degeneration of the lumbar spine. Dr. Holladay concluded that, based on the diagnostic studies
of the lumbar spine from 1997, 2003 and 2004, appellant developed progressive degeneration of
the lumbar spine, which was not related to or caused by the work event of May 10, 1994.
By decision dated July 21, 2011, OWCP terminated appellant’s compensation benefits. It
found that Dr. Holladay’s report indicated that appellant’s current lumbar spine condition was
not related to the May 10, 1994 employment incident. Thus, medical treatment was not
authorized and prior authorization was terminated.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits. Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.3 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.4

2

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

3

Roger G. Payne, 55 ECAB 535 (2004).

4

Pamela K. Guesford, 53 ECAB 726 (2002).

4

ANALYSIS -- ISSUE 1
By decision dated July 21, 2011, OWCP terminated appellant’s medical benefits and
denied authorization for epidural steroid injections on the grounds that the accepted conditions of
lumbar strain and L4-5 disc herniation ceased without residuals. The Board finds that OWCP
failed to meet its burden of proof in terminating appellant’s medical benefits.
OWCP accepted that appellant sustained a lumbar strain and herniated disc at L4-5 on
May 10, 1994. It authorized his December 27, 1994 surgery for lumbar laminectomy with
bilateral L4-5 discectomy and bony decompression L4-5 bilaterally. Appellant subsequently
retired in 1997. OWCP later approved surgery for a decompressive laminectomy L3 and upper
L4 with bilateral foraminotomy on November 22, 2004.
In medical reports dated December 12, 2006 to July 26, 2010, Dr. Majors stated that she
had been treating appellant since March 20, 1997 for pain related to his May 10, 1994 work
injury. She noted that treatment had been authorized since March 20, 1997 for his chronic pain
while under her care. Dr. Majors stated that appellant was referred by Dr. Cavanaugh after his
back surgery in 2004. She further stated that the chronic back pain after his surgery persisted
and was related to the original work injury. Dr. Majors noted that there had been no changes to
appellant’s condition since her office initially began treating him in 1997. She concluded that his
chronic pain was likely a lifelong problem requiring office visits every three months for
evaluation and medication. Dr. Majors diagnosed PLPS in 1994 and 2004 from a May 1994 onthe-job injury and bilateral lumbosacral radiculopathy and recommended steroid injections.
In its December 7, 2010 decision, the hearing representative remanded the case for
further medical development to determine if the claim should be expanded to include herniation
at the L3-4 level and whether appellant had any remaining employment-related residuals from
the May 10, 1994 injury which required continued treatment.5 Accompanying the referral was a
statement of accepted facts, questions regarding appellant’s employment-related conditions and
the case record containing his medical records. Dr. Holladay, a second opinion referee
physician, provided an April 5, 2011 report and a June 3, 2011 addendum to his report after
OWCP requested clarification. On July 21, 2011 OWCP issued a decision terminating
appellant’s compensation for medical treatment based upon the reports of Dr. Holladay.
The Board finds that OWCP did not meet its burden to terminate appellant’s
compensation. OWCP accepted a claim for lumbar strain and disc herniation at L4-5. As noted
above, to terminate medical benefits, it retained the burden of proving that the residuals of the
conditions had ceased. Dr. Holladay’s April 5, 2011 report stated that appellant likely had an
underlying preexisting degenerative disc condition of the lumbar spine, which was not caused by
a specific work injury and that he sustained a strain/sprain of the lumbar spine after the May 10,
1994 employment incident. He noted that degenerative disc disease would have likely
progressed over time resulting in clinical complaints. When asked if appellant had any residuals
resulting from the May 10, 1994 incident, Dr. Holladay stated that appellant had residuals of
back pain, leg pain, numbness and tingling. He further noted that appellant had residuals from
5

See R.A., Docket No. 09-1754 (issued May 24, 2010); Rose V. Ford, 55 ECAB 449 (2004).

5

his 1994 and 2004 surgical procedures, which were accepted as related to the May 10, 1994
employment incident. Dr. Holladay recommended pain management with epidural steroid
injections once a year for the employment-related injury and opined that appellant’s current
lumbar condition was contributed from the May 10, 1994 employment incident.
In his initial April 5, 2011 report, Dr. Holladay stated that appellant continued to
experience residuals from his 1994 and 2004 surgeries which were approved by OWCP. The
basic rule respecting consequential injuries is that when the primary injury is shown to have
arisen out of and in the course of employment, every natural consequence that flows from the
injury likewise arises out of the employment, unless it is the result of an independent intervening
event. Once the work-connected character of an injury has been established, the subsequent
progression of that condition remains compensable so long as the worsening is not shown to
have been produced by an independent, nonindustrial cause.6
In his June 3, 2011 addendum, Dr. Holladay reviewed the diagnostic studies from 1994,
1997, 2003 and 2004 and provided clarification on whether irrespective of the May 10, 1994
employment incident, appellant’s lumbar condition would have progressed to its current state.7
He stated that appellant’s June 6, 1994 MRI scan revealed underlying preexisting multiple level
spondylitic and degenerative changes. There were changes noted at L4-5 with a broad base disc
protrusion secondary to degeneration with associated facet degeneration. Dr. Holladay noted
that traumatic events short of fracture or dislocation were not likely to result in progressive
degeneration of the spine as the condition was predominantly related to genetics based in
medical literature. He opined that appellant sustained a traumatic event resulting in low back
pain, however, this event was not the producing cause of the disc degeneration at multiple levels
in the lumbar spine. Dr. Holladay further stated that the bulging disc noted at L4-5 was also not
the result of this mechanism of injury and there was no documented objective evidence of an
aggravation or acceleration of the preexisting disc degeneration. He concluded that, based on the
diagnostic studies of the lumbar spine from 1997, 2003 and 2004, appellant developed
progressive degeneration of the lumbar spine, which was not related to or caused by the work
event of May 10, 1994.8
The Board finds that Dr. Holladay’s addendum does not provide clarification on the
issues raised. OWCP accepted appellant’s claim for lumbar strain and herniated disc at L4-5 in
1994. Despite not having been provided the 1994, 1997, 2003 and 2004 diagnostic tests in his
initial report, Dr. Holladay’s opinion that appellant had a preexisting degenerative disc disease of
the lumbar spine prior to the May 10, 1994 employment incident remained consistent in both his
6

See Kathy A. Kelley, 55 ECAB 206 (2004); Carlos A. Marerro, 50 ECAB 170 (1998).

7

The Board notes that though Dr. Holladay was not provided with the above referenced diagnostic studies in his
initial April 4, 2011 report, he was provide with appellant’s physician’s reports, which did address and summarize
these diagnostic studies.. The only diagnostic study provided with the case record at the time was a May 17, 1994
electromyography and nerve conduction study which he noted as consistent with preexisting degeneration of the
lumbar spine and lumbar spinal stenosis.
8

Dr. Holladay noted that appellant’s farming activity could have some protective properties with regards to his
lumbar disc and in the absence of any reported injury while doing these activities, would not have caused an
aggravation or acceleration of his preexisting condition of degeneration of the lumbar spine.

6

initial report and addendum. It is unclear how he reached the conclusion that appellant’s injury
of bulging disc at L4-5 was not a result of the May 10, 1994 employment incident, which was
accepted and approved by OWCP over 16 years ago as a consequence of the traumatic
employment incident. Dr. Holladay failed to provide an unequivocal opinion and provided no
foundation for his conclusion. Further, his reports fail to provide an explanation for the
discrepancies in his conflicting opinions as to whether appellant had residuals of the accepted
conditions. The Board has consistently held that a medical opinion not fortified by rationale is of
limited probative value.9
The issue to be resolved was whether appellant was suffering from continued residuals of
his accepted lumbar strain, L4-5 disc herniation and two authorized surgeries. Dr. Holladay’s
April 5, 2011 report notes that appellant continued to suffer from residuals of his 1994 and 2004
surgeries, that his current lumbar condition is contributed to the May 10, 1994 employment
incident and that he would benefit from yearly steroid injections to treat his employment-related
injury. Thus, Dr. Holladay’s reports are not sufficiently well rationalized to establish that
appellant ceased to have residuals of his employment injuries.10
The Board therefore finds that OWCP erred by terminating appellant’s compensation in
its July 21, 2011 decision. It remains OWCP’s burden of proof to terminate compensation and
the Board finds that OWCP terminated authorization for medical benefits without meeting its
burden in this case. The Board will reverse OWCP’s determination terminating appellant’s
compensation.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury.11 To establish a causal relationship between the condition, as
well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship.12 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,

9

A.D., 58 ECAB 149 (2006).

10

V.C., Docket No. 11-1561 (issued February 15, 2012).

11

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

12

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.13
ANALYSIS -- ISSUE 2
The Board finds this case is not in posture for decision with regard to the issue of whether
appellant’s claim should be expanded to include disc herniation at L3-4. The Board notes that
though his November 22, 2004 surgery for decompressive laminectomy at L3-4 level bilateral
foraminotomy was approved, OWCP never formally accepted his claim for a lumbar condition at
the L3-4 level.
Dr. Holiday failed to provide an unequivocal opinion on whether appellant’s claim
should be expanded to include additional lumbar conditions at L3-4. The Board has consistently
held that a medical opinion not fortified by rationale is of limited probative value.14
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done. Once OWCP
undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case.15
When OWCP selects a physician for an opinion on appellant’s employment-related
injury, it has an obligation to secure, if necessary, clarification of the physician’s report and to
have a proper evaluation made.16 Because it referred appellant to a second opinion physician, it
has the responsibility to obtain a report that will resolve the issue of whether he continued to
have residuals of his employment-related injury and whether the claim should be expanded to
include additional lumbar conditions at the L3-4 level.17 In this case, OWCP was provided
specific instructions on remand from the hearing examiner to develop the evidence by seeking a
second opinion on whether appellant had additional lumbar conditions at the L3-4 level as a
result of his May 10, 1994 injury, whether appellant continued to experience residuals of his
employment-related condition and whether pain management and/or epidural steroid injections
were indicated. After receiving Dr. Holladay’s April 5, 2011 report, OWCP sought clarification
on whether appellant’s lumbar condition would have progressed to its current state irrespective
of the May 10, 1994 incident. Dr. Holladay provided a June 3, 2011 addendum in response to
OWCP’s request which stated that appellant’s preexisting degenerative disc disease and bulging
disc noted at L4-5 were not caused or aggravated by the May 10, 1994 employment incident. He
failed, however, to provide an opinion on whether appellant’s claim should be expanded to
include additional lumbar conditions at L3-4. As neither of Dr. Holladay’s reports fully
13

James Mack, 43 ECAB 321 (1991).

14

A.D., 58 ECAB 149 (2006).

15

William J. Cantrell, 34 ECAB 1223 (1983).

16

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

17

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

8

addressed this issue, OWCP failed to follow the hearing representatives instructions on remand
and seek clarification as to whether appellant’s lumbar conditions at L3-4 were caused by the
May 10, 1994 injury. OWCP did not properly discharge its responsibilities in developing the
record.18 Without such information, an informed decision cannot be reached on the relevant
schedule issue.
The Board finds that OWCP failed to undertake development of appellant’s claim in
accordance with OWCP’s December 7, 2010 decision and the case will be set aside and
remanded for further development of the medical evidence and a reasoned opinion regarding
whether appellant has additional lumbar conditions at L3-4 due to his accepted employment
injuries.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2011 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further development.
Issued: October 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

Richard F. Williams, 55 ECAB 343 (2004).

9