United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
COMMISSARY STORE, Great Lakes, IL,
Employer
__________________________________________

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

Docket No. 12-1199
Issued: December 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 10, 2012 appellant filed a timely appeal from the February 23, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a
recurrence of a medical condition. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of his accepted right knee condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 25, 1981 appellant, then a 28-year-old clerk, sustained a traumatic injury to his
right knee while stocking potatoes at work.2 OWCP accepted his claim for chondromalacia
patella of the right knee.3 In a decision dated March 6, 1986, it terminated appellant’s continuing
compensation benefits on the grounds that he was capable of performing the duties of his dateof-injury job. There is no record of medical treatment for his right knee from March 27, 1987
until December 2008.4
On February 20, 2009 appellant requested that his claim be reopened for treatment of his
right knee condition. In a letter dated March 12, 2010, OWCP informed him that the information
submitted was insufficient to establish that his current condition was causally related to the
accepted right knee injury. It advised appellant to submit a Form CA-2a if he believed that he
had experienced a recurrence of disability, as well as medical evidence to support his claim.
Appellant did not submit any additional evidence in support of his claim.
By decision dated April 23, 2012, OWCP denied appellant’s request to reopen his claim,
finding that he had submitted insufficient factual or medical evidence to support continuing
residuals of his right knee condition.
On May 27, 2010 appellant requested a review of the written record. He did not submit
any evidence or argument in support of his request.
By decision dated August 12, 2010, an OWCP hearing representative affirmed the
April 23, 2010 decision on the grounds that there was no medical evidence of record to support
that appellant suffered from a condition causally related to his accepted right knee injury.
On August 13, 2010 appellant requested reconsideration. He contended that OWCP had
discriminated against him because of his name, thereby aggravating his mental illness.
Appellant argued that he had been denied due process under the 14th Amendment. He submitted
statements dated March 23 and June 9, 2010, in which he stated that he is mentally impaired due
to a brain injury. Appellant also contended that the decision denying his claim was arbitrary and
irrational.
Appellant submitted a December 24, 2008 report from Dr. Sepehr Khonsari, a Boardcertified physiatrist, which was co-signed by appellant’s treating physician, Dr. Ronald K.
Takemoto, a Board-certified physiatrist. On examination of the right knee, there was tenderness
2

This case was previously before the Board. In an order dated November 25, 2011, the Board set aside the
October 28, 2010 decision on the grounds that the claims examiner had not reviewed all evidence of record prior to
issuing his decision. The case was remanded for consideration of the evidence and a de novo decision. Docket No.
11-1138 (issued November 25, 2011).
3

Appellant’s January 8, 1982 claim for a back injury in File No. xxxxxx429 was accepted for cervical and lumbar
strain.
4

In a March 27, 1987 report, Dr. A.W. Bhatti, a treating physician, noted that appellant had arthroscopic surgery
in 1982. At the time of his examination in 1987, x-rays showed a possible tear at the posterior horn of the medial
meniscus.

2

over the medial joint line. Review of a magnetic resonance imaging (MRI) scan of the right knee
reflected a medial meniscal tear; partial tear or sprain of the anterior cruciate ligament (ACL);
grade 4 chondromalacia of the medial patella; and grade 3 chondromalacia of the lateral patella.
The record contains a copy of a December 16, 2008 report of an MRI scan of the right knee and
a December 24, 2008 report of an x-ray of the right knee.
In an April 27, 2009 progress notes, Dr. Sunny C.F. Cheung, a Board-certified orthopedic
surgeon, diagnosed mild right knee degenerative joint disease. Appellant reported that he had
injured his right knee in 1981, had undergone arthroscopic patella debridement and had been
experiencing pain ever since.
In reports dated March 1, 2010, Dr. Takemoto diagnosed degenerative joint disease and
knee arthritis. He noted tenderness over the medial joint line of the right knee. Dr. Takemoto
indicated by placing a checkmark in the “yes” box his belief that appellant’s condition was
caused or aggravated by his employment activities. In a section entitled “history of injury,” he
stated, “knee injury.”
Appellant submitted notes dated April 16, 2010 from Karen Yamada, nurse practitioner,
which were co-signed by Dr. James Strazzeri, a Board-certified orthopedic surgeon. The report
reflected a diagnosis of mild right knee degenerative joint disease. Examination of the right knee
revealed no effusion, tenderness over the joint line, crepitus and decreased sensation.
In May 4, 2010 progress notes, Dr. Takemoto diagnosed knee arthralgia, lower back pain
and post-traumatic stress disorder. The record also contains psychotherapy notes from
Freddie L. DeCastro dated July 7, 2010.
By decision dated October 28, 2010, OWCP denied modification of the August 12, 2010
decision, on the grounds that the medical evidence was insufficient to show that his current
medical condition was due to the accepted work injury. It found that appellant’s mental
condition had no relevance to his accepted knee condition.
In an order dated November 25, 2011, the Board set aside the October 28, 2010 decision
on the grounds that the claims examiner had not reviewed all evidence of record prior to issuing
his decision. The case was remanded for consideration of the evidence and a de novo decision.5
By decision dated February 23, 2012, OWCP denied modification of the August 12, 2010
decision, finding that the evidence was insufficient to establish that appellant’s current condition
was causally related to his accepted knee injury.

5

See supra note 2.

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LEGAL PRECEDENT
Appellant has the burden of establishing that he sustained a recurrence of a medical
condition6 that is causally related to his accepted employment injury. To meet his burden,
appellant 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 injury and supports that conclusion with sound medical rationale.7 Where no such
rationale is present, the medical evidence is of diminished probative value.8
OWCP regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.9
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return (as needed) PRN or computed by the
claims examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.10
ANALYSIS
Appellant has not met his burden of proof to establish that he sustained a recurrence of a
medical condition. OWCP accepted appellant’s 1981 traumatic injury claim for chondromalacia
patella of the right knee. Appellant has asked that his claim be reopened for treatment.
However, he has failed to produce any rationalized medical opinion evidence establishing that he
required further medical treatment for a continuing employment-related condition.
On March 6, 1986 OWCP terminated appellant’s continuing compensation benefits on
the grounds that he was capable of performing the duties of his date-of-injury job. There is no
6

“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).
7

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

8

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

9

20 C.F.R. § 10.5(y).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003). The
procedure manual provides, with certain exceptions that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. Id., Chapter 2.1500.5(a).

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record of medical treatment for his right knee from March 27, 1987 until December 24, 2008.
As computed from the date of the last physical examination on March 27, 1987, the treatment on
December 24, 2008 was rendered more than 90 days after appellant’s release from medical care.
Therefore, appellant was responsible for submitting an attending physician’s report containing a
description of the objective findings and supporting causal relationship between his current
condition and the previously accepted knee injury.11 He had the burden of submitting sufficient
medical evidence to document the need for further medical treatment.12 Appellant did not
submit the evidence required and thus failed to establish a need for continuing medical
treatment.13
Dr. Takemoto’s reports do not establish that appellant’s current knee condition was
causally related to the accepted employment injury. A December 24, 2008 report co-signed by
Dr. Takemoto provided examination findings and results of a recent MRI scan of the right knee,
which reflected a medial meniscal tear; partial tear or sprain of the ACL; grade 4 chondromalacia
of the medial patella; and grade 3 chondromalacia of the lateral patella. The report, however, did
not contain an opinion that appellant’s current condition was causally related to the original,
accepted right knee injury. Medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.14
On March 1, 2010 Dr. Takemoto diagnosed degenerative joint disease and knee arthritis.
He indicated by placing a checkmark in the “yes” box his belief that appellant’s condition was
caused or aggravated by his employment activities. In a section entitled “history of injury,”
Dr. Takemoto stated, “knee injury.” Medical conclusions unsupported by rationale are of little
probative value.15 The Board has held that a report that addresses causal relationship with a
checkmark, without a medical rationale explaining how the work conditions caused the alleged
injury, is of diminished probative value and is insufficient to establish causal relationship.16
Additionally, Dr. Takemoto did not provide findings on examination or indicate that his opinion
was based on a review of a complete factual and medical background of the claimant. For all of
these reasons, his reports are of diminished probative value. Dr. Takemoto’s progress notes,
which do not provide an opinion on the cause of appellant’s current condition, are also
insufficient to establish appellant’s claim.
On April 27, 2009 Dr. Cheung diagnosed mild right knee degenerative joint disease and
related appellant’s report that he had injured his right knee in 1981, had undergone arthroscopic
patella debridement and had been experiencing pain ever since. Although she refers to the 1981
injury, as noted by appellant, Dr. Cheung did not express his own opinion that the current knee
11

Federal (FECA) Procedure Manual, id.

12

20 C.F.R. § 10.5(y).

13

See J.F., 58 ECAB 124 (2006).

14

Michael E. Smith, 50 ECAB 313 (1999).

15

Willa M. Frazier, 55 ECAB 379 (2004).

16

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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condition was causally related to the original injury. An award of compensation may not be
based on surmise, conjecture, speculation or upon appellant’s own belief that there was a causal
relationship between her claimed condition and her employment.17
April 16, 2010 notes from Ms. Yamada, nurse practitioner, which were co-signed by
Dr. Strazzeri, provided examination findings and reflected a diagnosis of mild right knee
degenerative joint disease. They did not contain a history of injury and treatment or an opinion
as to the cause of appellant’s diagnosed condition. Therefore, they are of limited probative
value. Reports of MRI scans and x-rays, which do not contain an opinion as to the cause of
appellant’s condition, are also of diminished probative value and are insufficient to establish
appellant’s claim.18
The Board finds that appellant has failed to provide any rationalized medical opinion
evidence establishing that he required further medical treatment for a 20-year-old employmentrelated injury.
On appeal, appellant asserts that OWCP failed to “meet its statutory mandate” “failed to
make findings of facts or conclusions of law” and did not request an independent medical
examination. He chiefly contends that OWCP failed to meet its burden of proof. The burden in
this case, however, is appellant’s. For reasons stated, the Board finds that he has failed to meet
his burden of proof to establish that he sustained a recurrence of his accepted right knee
condition.
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 did not meet his burden of proof to establish that he
sustained a recurrence of a medical condition that was causally related to his accepted right knee
injury.

17

Patricia J. Glenn, 53 ECAB 159 (2001).

18

See Mary E. Marshall, 56 ECAB 420 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the February 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Winchester, KY, Employer
__________________________________________

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

Docket No. 13-1386
Issued: November 1, 2013

Case Submitted on the Record

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

JURISDICTION
On May 22, 2013 appellant filed a timely appeal from a December 6, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
back injury on October 6, 2011 while in the performance of duty.
On appeal, appellant contends that he sustained a work-related back injury. He did not
delay in filing his claim as he completed an incident report immediately after his injury.
Management failed to assist him with filling out forms. Appellant denied telling his supervisor
that he had back problems prior to October 6, 2011. A computerized tomography (CT) scan was
performed following a February 2011 car accident and revealed no back injury. Appellant’s
prior employment in the coal mining industry is not related to his claimed injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 24, 2011 appellant, then a 53-year-old administratively determined contract
employee (warehouse worker), filed a traumatic injury claim (Form CA-1) alleging that on
October 6, 2011 he developed lower back pain as a result of unloading a table from a van at
work. On the claim form, the employing establishment stated that it received notice of the claim
on October 12, 2011. Matthew J. Dean, a manager, stated that appellant sustained a back injury
in a motor vehicle accident and worked for coal mines prior to working at the employing
establishment.
A Form CA-20 was signed on October 24, 2011 by Lee Ann Brewer, an advanced
practice registered nurse, who obtained a history that on October 6, 2011 appellant was lifting
and unloading tables out of a van at work. She diagnosed lumbago and sciatica and advised that
these conditions were caused or aggravated by the employment activity. Nurse Brewer stated
that appellant had no pain until October 6, 2011. In reports dated October 24 and November 14,
2011, she reiterated her diagnoses of lumbago and sciatica and history of injury. Nurse Brewer
also diagnosed degeneration of the lumbar or lumbosacral intervertebral. In the October 24,
2011 report, appellant related to Nurse Brewer that he had experienced pain since the October 6,
2011 incident. He thought he had just pulled a muscle and missed work the following day.
Appellant returned to work, but his pain continued to worsen and he went to a hospital
emergency room for medical treatment.
In medical reports dated October 31 and December 14, 26 and 28, 2011, Dr. Ashu T.
Joshi, an attending Board-certified internist, stated that appellant was being treated in follow up
for back pain. Dr. Joshi listed findings on physical examination and diagnosed lumbago,
sciatica, degeneration of the lumbar or lumbosacral intervertebral and thoracic or lumbosacral
neuritis or radiculitis. In referral slips dated December 14 and 26, 2011, he reiterated his
diagnoses of lumbago, sciatica and thoracic or lumbosacral neuritis or radiculitis and ordered
evaluation and treatment of these conditions. Dr. Joshi also referred appellant for a magnetic
resonance imaging (MRI) scan of the lumbar spine. On January 16, 2012 he continued to follow
up appellant for back pain. Dr. Joshi noted that an MRI scan had been performed. He listed
findings on physical examination and diagnosed muscle spasm.
By letter dated January 25, 2012, OWCP advised appellant that lumbago and sciatica
were considered as pain under FECA and not valid diagnoses. His diagnosis of degeneration of
the lumbosacral areas was considered a degenerative process due to aging and not the result of a
one-time traumatic injury. It requested that appellant submit factual and medical evidence,
including a rationalized medical opinion from an attending physician which described a history
of injury which included prior back conditions and provided dates of examination and treatment,
findings, test results, a diagnosis together with medical reasons on how the reported work
incident caused his medical condition. OWCP also requested that the employing establishment
submit any medical evidence regarding treatment appellant received at its medical facility and
factual evidence regarding his two-week employment dates and job description.
In an October 21, 2011 report, Dr. Christine N. Riley, a Board-certified radiologist,
advised that a CT scan of the lumbar spine revealed no acute abnormality, a mild disc bulge at
L4-L5 that created borderline to mild stenosis of the neural foramina and mild degenerative facet
joint changes at L4-S1.
2

In a January 12, 2012 report, Dr. Paul C. Wooldridge, a Board-certified radiologist
advised that an MRI scan of the lumbar spine demonstrated anterior wedging and endplate
irregularity of four consecutive lower thoracic and upper lumbar vertebral bodies that were
concerning for Scheuermann’s disease. Disc disease was found throughout the lumbar spine
predominantly at L4 and L5 with disc protrusion most pronounced on the left at L4 and L5
which possibly accounted for appellant’s symptoms.
On February 13, 2012 OWCP received a response to its January 25, 2012 letter
presumably from an unidentified healthcare provider. Appellant was evaluated on October 24
and 31, November 14 and December 26, 2011. He had no prior back conditions. The date of
injury was October 6, 2011. A CT scan was performed on October 21, 2011 and an MRI scan
was performed on December 14, 2011. Appellant had thoracic or lumbosacral neuritis or
radiculitis. There was a temporal association between his symptoms and his accident at work.
In a letter dated February 17, 2012, the employing establishment stated that, appellant
was hired as an administratively determined contract employee (warehouse worker) for a twoweek period. It submitted his timesheet for the period October 3 through 15, 2011 and pay rate
information.
In a February 29, 2012 decision, OWCP accepted that the October 6, 2011 incident
occurred as alleged. It denied appellant’s claim, finding insufficient medical evidence to
establish that he sustained a back injury causally related to the accepted employment incident.
On March 7, 2012 the employing establishment advised OWCP that it issued the Form
CA-16. On March 8, 2012 it denied issuing a Form CA-16.
On March 15, 2012 OWCP reissued the February 29, 2012 decision to appellant’s correct
mailing address.
In an undated letter, appellant requested reconsideration. He contended that at the time of
injury he was advised to go to St. Joseph-London Hospital for evaluation. Appellant did as
instructed and continued to follow up with Dr. Joshi. He noted his diagnosis of a severe
musculoligamentous strain in the lumbar region by Dr. William H. Brooks, a Board-certified
neurologist. Appellant contended that his claim was hastily denied by OWCP prior to its receipt
of Dr. Brooks’ report.
In a February 23, 2012 report, Dr. Brooks stated that he obtained a narrative, performed a
neurological examination and reviewed diagnostic studies at the request of Dr. Joshi. He opined
that appellant had a severe musculoligamentous strain in the lumbar area. An unsigned partial
report dated February 23, 2012 presumably from Dr. Brooks noted that Dr. Joshi had evaluated
appellant for severe back pain with paresthesia and pain in both lower extremities. Dr. Brooks
obtained a history of injury that on October 6, 2011 appellant was in good health until the onset
of severe low back pain on October 6, 2011 while lifting a folded table from a van. He had some
radiculopathy, however, it was nondermatomal and ill-defined. Dr. Brooks noted appellant’s
ongoing pain and stated that most of it was axial and nonradicular which was consistent with a
musculoligamentous strain.

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Medical records dated October 21, 2011 from St. Joseph-London Hospital Emergency
Department stated that appellant was treated for sudden onset of lower back pain at work on
October 6, 2011. He had a herniated disc and was excused from work through October 24, 2011.
In a February 21, 2012 report, Dr. Joshi noted appellant’s continuing back pain that
radiated to his hips. He also had numbness and tingling in his legs. Dr. Joshi listed findings on
physical examination and reiterated his diagnosis of thoracic or lumbosacral neuritis or
radiculitis and lumbago. Appellant also had pain in a lower limb.
By letter dated October 22, 2012, OWCP advised appellant that he did not claim a work
injury or seek medical attention until after the expiration of his temporary appointment on
October 15, 2011. He did not file a Form CA-1 until October 24, 2011, which was 18 days after
the claimed event. Although appellant advised Dr. Joshi and Dr. Brooks that he had no history
of back problems or back pain prior to October 6, 2011, the employing establishment reported
that he was involved in a car accident resulting in a back injury and worked for the coal mines
prior to his employment at the agency. OWCP requested that he submit a detailed written
statement describing the October 6, 2011 incident and what he did prior to and after this incident,
and whether he had any injuries or received any medical treatment prior to this incident. It also
requested that appellant submit medical records pertaining to his medical history. He did not
respond.
In a December 6, 2012 decision, OWCP denied modification of its prior decision. It
found that appellant’s delay in filing a claim and the partial or inaccurate history of injury that he
provided to his physician casted serious doubt upon the validity of his claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within applicable time limitation;
that an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at

2

Id.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.

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the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.7
ANALYSIS
The Board finds that appellant established that on October 6, 2011 he unloaded a table
out of a van at work. As noted, an employee’s statement alleging that an incident occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by
strong or persuasive evidence.8 Appellant’s account of the October 6, 2011 incident was
consistent throughout the case record. His narrative paralleled the medical histories obtained by
Nurse Brewer, Dr. Brooks and the hospital emergency department.9 In addition, the
February 13, 2012 response from an unidentified healthcare provider reported October 6, 2011 as
the date of injury.
On appeal, appellant contended that he filed an incident report immediately following his
injury on October 6, 2011. The record does not contain this evidence. However, while appellant
did not immediately report his injury or seek medical treatment, this does not render the claim
factually deficient. Initially, he thought he had just pulled a muscle and only missed work the
day following his injury. After his return to work his pain worsened. On October 21, 2011 he
was treated in the St. Joseph-London hospital emergency department. Mr. Dean contended that
appellant sustained a back injury as a result of a motor vehicle accident and worked in the coal
mine industry prior to his employment at the employing establishment. These contentions,
however, are not substantiated by the case record. In view of the totality of the evidence, the
Board finds that an employment incident occurred on October 6, 2011, as alleged. Thus,
appellant has met the first component of fact of injury.

5

T.H., 59 ECAB 388 (2008).

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

8

See cases cited, supra note 6.

9

See Caroline Thomas, 51 ECAB 451 (2000) (a consistent history of the injury as reported on medical reports, to
the claimant’s supervisor and on the notice of injury can be evidence of the occurrence of the incident).

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The remaining issue is whether the medical evidence establishes that appellant sustained
an injury causally related to the established employment incident. In order to establish a causal
relationship between the diagnosed condition and any resulting disability and the employment
incident, he must submit rationalized medical opinion evidence, based on a complete factual and
medical background, supporting such causal relationship.10
The reports and referral slips from Dr. Joshi found that appellant had lumbago and
sciatica. The Board has consistently held that pain is a symptom, not a compensable medical
diagnosis.11 Dr. Joshi’s diagnoses of degeneration of the lumbar or lumbosacral intervertebral
and thoracic or lumbosacral neuritis or radiculitis are speculative in nature and insufficient to
establish a firm diagnosis.12 Moreover, he did not provide a history of injury13 or an opinion
addressing whether the October 6, 2011 employment incident caused or aggravated the
diagnosed lumbar conditions.14 The Board finds, therefore, that Dr. Joshi’s reports and referral
slips are of diminished probative value and do not establish appellant’s claim.
Similarly, the February 23, 2012 reports from Dr. Brooks and the diagnostic test results
from Drs. Riley and Wooldridge are insufficient to establish appellant’s claim as none of the
physicians provided an opinion addressing the causal relationship between the diagnosed lumbar
conditions and the October 6, 2011 employment incident.15 Further, the October 21, 2011
medical records from St. Joseph-London Hospital Emergency Department found that appellant
had a herniated disc and was disabled for work through October 24, 2011, but failed to provide
an opinion on whether the diagnosed condition and resultant disability were caused or
aggravated by the established employment incident.
The medical reports from Nurse Brewer have no probative medical value in establishing
appellant’s claim as a nurse is not a physician as defined under FECA.16
The response to OWCP’s January 25, 2012 developmental letter from an unidentified
healthcare provider lacks probative medical value as the author cannot be identified as a
physician.17

10

T.H., 59 ECAB 388 (2008); James Mack, 43 ECAB 321 (1991).

11

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

12

G.M., Docket No. 11-1152 (issued January 20, 2012); M.P., Docket No. 09-1752 (issued June 7, 2010).

13

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
14

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
15

Id.

16

See 5 U.S.C. § 8101(2); G.G., 58 ECAB 389 (2007).

17

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

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The Board finds that appellant has failed to submit any rationalized probative medical
evidence to establish that he sustained a back injury causally related to the October 6, 2011
employment incident. Appellant did not meet his burden of proof.
On appeal, appellant contended that he sustained a work-related back injury as he did not
delay in filing his claim, tell his supervisor that he had back problems prior to October 6, 2011 or
sustain a back injury following a February 2011 car accident based on CT scan results. He also
contended that his prior employment in the coal mining industry was not related to his claimed
injury. Appellant’s contentions are moot as the Board has found that the October 6, 2011
incident occurred as alleged. However, as found above, the Board finds that appellant did not
submit any rationalized probative medical evidence supporting a causal relationship between his
diagnosed lumbar conditions and the established employment incident.
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 his burden of proof to establish that he
sustained a back injury on October 6, 2011 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POSTAL &
DISTRIBUTION CENTER, Fort Myers, FL,
Employer
__________________________________________

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

Docket No. 15-0767
Issued: July 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 10, 2015 appellant filed a timely appeal from a December 30, 2014 merit
decision and a February 17, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an injury in
the performance of duty on November 14, 2014; and (2) whether OWCP properly denied
appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant alleges that his supervisor had sent him out on the road and he was
on the clock when the injury happened. He provided a witness statement and a copy of the

1

5 U.S.C. § 8101 et seq.

accident report. However, this information was not available to OWCP at the time of its decision
and the Board may not consider such new information on appeal.2
FACTUAL HISTORY
On November 14, 2014 appellant, then a 59-year-old laborer/custodian, filed a traumatic
injury claim alleging that at approximately 10:45 a.m. he injured his right elbow and ribs and
suffered a headache as a result of a motor vehicle accident. On the claim form, appellant’s
supervisor, indicated that appellant was injured in the performance of duty. Appellant received
medical care from Lee Memorial Hospital that same day.
With his claim appellant submitted a Form CA-16, Authorization for Examination and/or
Treatment, and a November 14, 2014 report from Dr. James S. Gostigian, an internist of the Lee
Memorial Health System, who diagnosed a right chest wall contusion. No history of injury was
provided with the report.
By letter dated November 28, 2014, OWCP advised appellant of the deficiencies in his
claim and provided him 30 days in which to submit additional factual and medical evidence,
which would include a diagnosis of a medical condition sustained as a result of the claimed
events. Appellant was asked whether he was on agency premises and performing regularly
assigned duties when the injury occurred. If the injury occurred off agency premises, he was
asked to identify the location of the area where the injury occurred in relation to the regular
workplace and explain what he was doing when the injury occurred and why he was off agency
premises. Appellant was also requested to provide any investigations made by the State
Highway Patrol, by other law enforcement officers, or by his agency.
In response, appellant submitted a 21-page report dated November 14, 2014 from the Lee
Memorial Health System, which provided a history of the injury, a diagnosis, and copies of
diagnostic testing. Copies of a November 25 and December 16, 2014 modified custodian
position were provided.
In a November 24, 2014 report, Dr. Steven R. Anthony, an osteopath, noted the history of
the November 14, 2014 injury and provided an impression of low back pain and rib contusion
versus intercostal strain. Physical therapy was recommended. In a November 24, 2014 order,
Dr. Anthony requested physical therapy for lumbago and contusion of chest wall. He also
provided work restrictions.
By decision dated December 30, 2014, OWCP denied appellant’s claim finding the
evidence insufficient to establish that the November 14, 2014 incident occurred as alleged.
Specifically it found that appellant had not met his burden of proof to establish fact of injury as
he failed to provide the requested statement regarding the circumstances of the November 14,
2014 incident along with the accident report. As appellant failed to submit the requested factual
information, OWCP was unable to verify that appellant was injured while in the performance of
his duties on November 14, 2014.
2

Evidence which was not before OWCP at the time of its final decision will not be considered by the Board on
appeal. See 20 C.F.R. § 501.2(c)(1); James C. Campbell, 5 ECAB 35 (1952).

2

On February 3, 2015 OWCP received appellant’s January 20, 2015 request for
reconsideration. With his reconsideration request, appellant submitted medical reports and work
restrictions from Dr. Anthony, diagnostic testing, and copies of physical therapy reports.
By decision dated February 17, 2015, OWCP denied appellant’s request for
reconsideration without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
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.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.5 To determine whether a federal employee has sustained a traumatic injury in
the performance of duty it must first be determined whether a fact of injury has been
established.6 First, the employee must submit sufficient evidence to establish that he actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
It is the claimant’s burden of proof to submit sufficient evidence necessary for OWCP to
make a determination as to whether an employment incident occurred as alleged. The evidence
must be sufficient to establish whether the claimant was in the course of federal employment at
the time of the incident, so that a proper determination may be made as to whether an injury
occurred while in the performance of duty.9 As to the phrase in the course of employment, the
Board has accepted the general rule of workers’ compensation law that, as to employees having
fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours, or
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
9

T.S., Docket No. 09-2184 (issued June 9, 2010).

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at lunch time, are compensable.10 An injury is said to arise in the course of employment when it
takes place within the period of the employment, at a place where the employee reasonably may
be, and while the employee is fulfilling employment duties or is engaged in doing something
incidental thereto. Arising out of employment relates to the causal connection between the
employment and the injury claimed.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established an employment-related injury on
November 14, 2014 in the performance of duty. Appellant, a custodian, did not establish that his
motor vehicle accident occurred while he was in the course of performing work duties.
It is the claimant’s burden of proof to submit sufficient evidence necessary for OWCP to
make a determination as to whether the claimant was in the course of federal employment at the
time of the incident.12 This encompasses not only the work setting but also a causal concept, i.e.,
in order for an injury to be considered as arising out of employment, the facts must show a
substantial employer benefit or requirement which gave rise to the injury.13 It is incumbent upon
a claimant to establish that the claimed injury arose out of employment.14
Appellant bears the burden of proof to establish the essential elements of his claim, which
includes fact of injury. Other than noting that he had sustained injuries after his car flipped over
on November 14, 2014, he has failed to provide any specific details of where and how the injury
occurred so that an injury in the performance of duty may be established. In the absence of such
evidence, OWCP properly found that appellant failed to establish an injury in the performance of
duty. While the evidence from Lee Memorial Health System and Dr. Anthony establishes that
appellant had an injury on November 14, 2014, this evidence is insufficient to establish that the
injury occurred while appellant was in the performance of duty on November 14, 2014.15 Under
the circumstances, OWCP properly determined that appellant had not established an injury in the
performance of duty.
In its November 28, 2014 development letter, OWCP informed appellant that the
information initially provided was insufficient to support his claim. Appellant was provided a
10

F.S., Docket No. 09-1573 (issued April 6, 2010).

11

B.C., Docket No. 09-653 (issued December 24, 2009).

12

See T.S., supra note 9.

13

Paula G. Johnson, 53 ECAB 722 (2002).

14

Id.

15

A properly executed CA-16 form can form a contractual agreement for payment of medical expense, even if the
claim is not accepted. See 20 C.F.R. § 10.300; Val D. Wynn, 40 ECAB 666 (1989). The Board notes that, under 5
U.S.C. § 8103, OWCP also has broad discretion to approve medical care which it finds necessary and reasonable in
cases of emergency or other unusual circumstances. Upon return of the case record, OWCP shall determine whether
appellant’s initial medical care in the hospital emergency room should be authorized pursuant to 20 C.F.R. § 10.300
or 10.304, which provides that, in cases involving emergencies or unusual circumstances, OWCP may authorize
treatment.

4

series of questions regarding the factual circumstances of the alleged incident and advised to
provide details which would clarify whether the November 14, 2014 accident occurred in the
performance of duty. He provided no response.
As appellant has not met his burden of proof to establish performance of duty, it is not
necessary to discuss the probative value of the medical reports.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,17
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.18 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.19 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.20
ANALYSIS -- ISSUE 2
The underlying issue on reconsideration is whether appellant has submitted sufficient
evidence relevant to the issue of performance of duty. Appellant’s request for reconsideration
neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point
of law. Consequently, appellant was not entitled to a review of the merits based on the first and
second above noted requirements under 20 C.F.R. § 10.606(b)(2).
The Board also finds he did not provide any relevant or pertinent new evidence
warranting the reopening of the case on the merits. On reconsideration, appellant submitted
medical reports and work restrictions from Dr. Anthony, diagnostic testing, and copies of
physical therapy reports. These reports, however, did not explain how appellant was injured in a
car accident as part of performing his duties as a laborer/custodian. Thus, these reports, while
new, are insufficient to reopen appellant’s claim for further merit review.
16

Tracey P. Spillane, 54 ECAB 608 (2003).

17

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

20

Id. at § 10.608(b).

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The Board finds that appellant did not show that OWCP erroneously interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence not previously considered by OWCP. Appellant did not
meet any of the regulatory requirements and OWCP properly declined to reopen his claim for
further merit review.21
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on November 14, 2014, as alleged. Furthermore, the Board finds that
OWCP properly denied appellant’s request for merit review under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2015 and December 30, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued
August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the
case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fairview Park, OH, Employer
__________________________________________

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

Docket No. 18-0196
Issued: July 12, 2018

Case Submitted on the Record

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

JURISDICTION
On November 6, 2017 appellant, through counsel, filed a timely appeal from an August 24,
2017 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 the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 24, 2017 decision.
The Board’s jurisdiction is limited to 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 his burden of proof to modify an August 9, 2016
loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On September 24, 2010 appellant, then a 60-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1), alleging that on that date he twisted his right knee when he stepped on
acorns in the performance of his federal employment duties. He stopped work on September 24,
2010 and did not return. OWCP assigned OWCP File No.xxxxxx872 and initially accepted the
condition of right knee sprain. It subsequently expanded acceptance of the claim to include an
aggravation of osteoarthritis right lower leg, aggravation of internal derangement of the right knee,
and aggravation of tear of medial meniscus of the right knee. OWCP paid appellant compensation
on the supplemental rolls as of November 9, 2010 and on the periodic rolls as of April 10, 2011.
Appellant has two other work-related claims for his right knee. Under OWCP File
No.xxxxxx789, OWCP administratively adjudicated a February 25, 2003 incident when
appellant’s right knee “went out” while walking in the snow. Appellant lost no time from work
and OWCP did not accept an injury resulting from the incident. Under OWCP File No.
xxxxxx313, OWCP accepted a January 6, 2010 traumatic injury for a right knee sprain and medial
meniscus tear when appellant slipped getting out of his truck and twisted his right knee. Appellant
underwent OWCP-authorized right knee surgery on June 22, 2010. He returned to full duty on
August 10, 2010. OWCP administratively combined the current case, File No. xxxxxx872, with
File Nos.xxxxxxx798 and xxxxxx313, with the latter claim serving as the master file.
Appellant entered into vocational rehabilitation based on the September 18, 2013 medical
findings of Dr. William R. Bohl, a Board-certified orthopedic surgeon and OWCP second opinion
physician. Dr. Bohl opined that appellant was able to work an eight-hour day in a sedentary
position with restrictions of no bending/stooping, squatting, kneeling, climbing, one hour of
standing and walking, and no more than 20 pounds to push, pull, and lift. The position of order
clerk was identified as being appropriate to appellant’s physical restrictions and vocational
capabilities. Appellant unsuccessfully underwent a 90-day job search for the identified position.
On January 6, 2015 the rehabilitation file was closed.
In March 2016, OWCP referred appellant to Dr. Robert B. Leb, a Board-certified
orthopedic surgeon, for a second opinion evaluation and updated medical evaluation. In an
April 21, 2016 report, Dr. Leb described appellant’s prior medical history and presented
examination findings. He opined that appellant’s ongoing symptomology was secondary to the
accepted osteoarthritis diagnosis. Dr. Leb opined that appellant had restrictions of lifting no more
than 20 pounds, no squatting, kneeling, or climbing, and limited stooping and bending. He
indicated that appellant could sit in an unrestricted manner. Dr. Leb also completed a work
capacity evaluation (Form OWCP-5(c).
On May 9, 2016 OWCP again referred appellant for vocational rehabilitation services. As
appellant had previously been in vocational rehabilitation services with job goals identified and
approved in 2015, OWCP requested the rehabilitation counselor to obtain updated labor market

2

studies for the previously selected positions of order clerk, and telephone solicitor. This was
completed on May 19, 2016.
On May 31, 2016 OWCP provided position descriptions relating the duties and strength
requirement of the selected positions to Dr. Leb and requested his opinion on whether appellant
was capable of performing such positions. In a June 27, 2016 addendum report, Dr. Leb reviewed
the job descriptions of order clerk, and telephone solicitor and opined, within a reasonable degree
of medical certainty, that appellant was physically capable of working either of those positions.
On July 8, 2016 OWCP proposed to reduce appellant’s compensation based on his capacity
to earn wages as an order clerk, Dictionary of Occupational Titles (DOT) No. 249.362-026, which
required sedentary strength with no climbing, balancing, steeping, kneeling, crouching, and
crawling, with frequent reaching, handling, and fingering. It noted that Dr. Leb had opined that
appellant was capable of performing such position. OWCP also noted that the vocational
rehabilitation counselor had determined that the order clerk position was the most appropriate
based on appellant’s work history and transferrable skills analysis and that it was reasonably
available at a higher average weekly salary of $379.00 than $341.00 for the position of telephone
solicitor. Appellant was afforded 30 days to submit additional information if he disagreed with
the proposed reduction in compensation. No further information was received.
By decision dated August 9, 2016, OWCP reduced appellant’s wage-loss compensation
based on his capacity to earn wages as an order clerk. It found that the position was medically and
vocationally suitable and represented his wage-earning capacity.
Appellant, through counsel, timely requested a telephonic hearing before an OWCP
hearing representative.
At the February 28, 2017 hearing, appellant, through counsel, sought modification of the
LWEC determination and testified that appellant was in need of additional surgery. Counsel noted
that appellant had 70 percent service-connected disability for post-traumatic stress disorder
(PTSD) and 10 percent service-connected disability for hearing loss, which were preexisting
conditions. Appellant testified that he had been diagnosed with scoliosis, for which he was
receiving disability from the Department of Veterans Affairs (VA), and that he had been recently
diagnosed with carpal tunnel syndrome. He testified that that his carpal tunnel syndrome began
while he was working for the employing establishment, but he never filed a claim for it. Appellant
testified that he was limited by his carpal tunnel syndrome and did not believe he could perform
the duties of the order clerk position. He also testified that he unable to perform the duties of the
order clerk position on a sustained basis. No additional evidence was received.
By decision dated April 4, 2017, an OWCP hearing representative found that appellant did
not meet his burden of proof to establish that the August 9, 2016 LWEC determination should be
modified. The hearing representative found that appellant’s argument that the selected position of
order clerk was not medically suitable because of his knee and back conditions was not supported
by the position description and was within Dr. Leb’s medical restrictions. The hearing
representative also noted that appellant provided no medical evidence to support that his PTSD or
hearing loss prevented him from performing the duties of the order clerk position. Additionally,
since his alleged carpal tunnel condition had not been accepted as employment related and was a

3

subsequently-acquired condition, any limitations from that condition were immaterial to the
LWEC determination.
On June 5, 2017 appellant, through counsel, requested reconsideration. He argued that the
information from the VA showed that the totality of appellant’s conditions were not fully analyzed.
Evidence offered in support of reconsideration included a response sheet from the VA
regarding a supplemental statement of the case which was considered in appellant’s VA appeal
and pages 17 through 21 of the supplemental statement of the case. The partial supplemental
statement of the case discussed the VA’s evaluation of appellant’s PTSD, which it had assigned a
70 percent disability evaluation. However, on page 21, the VA denied appellant’s claim for
“individual unemployability” as it had not received a completed VA Form 21-8940.
By decision dated August 24, 2017, OWCP denied modification of its prior decision. It
found that the partial supplemental statement of the case from the VA was insufficient to establish
that his constructed LWEC determination was issued in error.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.5 OWCP
procedures at Chapter 2.1501 contain provisions regarding the modification of a formal LWEC.6
The relevant part provides that a formal LWEC will be modified when: (1) the original rating was
in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has been
vocationally rehabilitated.7
The burden of proof is on the party attempting to show a modification of the LWEC
determination.8 There is no time limit for appellant to submit a request for modification of a wageearning capacity determination.9

4

Katherine T. Kreger, 55 ECAB 633 (2004).

5

Sue A. Sedgwick, 45 ECAB 211 (1993).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
7

Id. at Chapter 2.1501.3(a).

8

Jennifer Atkerson, 55 ECAB 317 (2004).

9

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

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ANALYSIS
The Board finds that appellant has not established that the August 9, 2016 LWEC
determination should be modified.
OWCP accepted appellant’s claim for the condition of right knee sprain, aggravation of
osteoarthritis right lower leg, aggravation of internal derangement of the right knee, and
aggravation of the right medial meniscus of right knee. On August 9, 2016 it found that appellant
could perform the duties of an order clerk, a sedentary position, and reduced his compensation to
reflect his wage-earning capacity in that job. In its April 4, 2017 decision, OWCP found that
appellant had not established a basis to modify the LWEC determination. Following a later request
for review, it again denied modification of the LWEC determination on August 24, 2017. The
issue is whether appellant established that the August 9, 2016 LWEC determination should be
modified.
Appellant, through counsel, argued that the original LWEC determination was erroneous.
He argued that appellant’s knee, back, carpal tunnel, PSTD, and hearing conditions rendered the
order clerk position medically unsuitable. However, counsel has not provided any medical
evidence to support this assertion. In determining wage-earning capacity based on a constructed
position, consideration is given to the residuals of the employment injury and the effects of
conditions which preexisted the employment injury10 Consideration is not given to conditions
which arise subsequent to the employment injury.11
Dr. Leb specifically found that appellant could perform a sedentary job, which did not
require him to lift more than 20 pounds, with no squatting, kneeling, or climbing and limited
stooping and bending. He also reviewed the job description of order clerk and found that it was
within appellant’s restrictions. Appellant has provided no medical evidence to support that his
PTSD, hearing loss, and back conditions prevented him from performing the selected position.
While appellant has a carpal tunnel condition, this condition has not been accepted as employment
related and there is no evidence to negate that this condition was subsequently acquired. Thus,
any limitations based on appellant’s carpal tunnel condition would not be material to the LWEC
determination.
Before OWCP and on appeal, counsel argues that the totality of appellant’s conditions were
not fully analyzed. In support, he submitted a partial supplemental statement of the case from the
VA. This indicated that appellant’s claim for “individual unemployability” based on his 70 percent
disability for PTSD was denied due to what appears to be a technicality of not filing a required
form. While the VA indicated that appellant had 70 percent disability due to PTSD, this finding
does not constitute medical evidence, nor is it sufficient to establish disability under FECA.12 The
Board notes that findings of other federal agencies are not dispositive with regard to questions
10

See Jess D. Todd, 34 ECAB 798, 804 (1983).

11

John D. Jackson, 55 ECAB 465 (2004); N.J., 59 ECAB 397 (2008).

12

The Board has consistently held that a disability determination under one statute or by one agency does not
establish disability under the other statute.
See Rufus C. Woodward, Docket No. 92-2033 (issued
September 10, 1993).

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arising under FECA.13 Thus, even if a complete supplemental statement from the VA was
submitted, it would not establish that the LWEC determination was erroneous.
After OWCP found that appellant could perform the duties of an order clerk, the pertinent
medical issue is whether there had been any change in his condition that would render him unable
to perform those duties, such that the LWEC determination should be modified.14 Appellant,
however, did not submit any additional medical evidence to establish a change in his accepted
conditions. Accordingly, there is no medical evidence of record which establishes a change in
appellant’s employment-related condition such that a modification of OWCP’s LWEC
determination would be warranted.
There is also no indication that appellant had been retrained or otherwise vocationally
rehabilitated following the LWEC determination.
Appellant has not established a material change in the nature and extent of the injuryrelated condition, that he had been retrained or otherwise vocationally rehabilitated, or that the
original determination was erroneous. Thus, the Board finds that he has failed to meet his burden
of proof to warrant modification of the LWEC determination.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish modification of
the August 9, 2016 LWEC determination.

13

See Daniel Deparini, 44 ECAB 657 (1993).

14

Phillip S. Deering, 47 ECAB 692 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the August 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2018
Washington, DC

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

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

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

7


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

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

Docket No. 14-48
Issued: March 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 16, 2013 appellant, through his attorney, filed a timely appeal from an
August 7, 2013 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 appellant met his burden of proof to establish his herniated lumbar
discs at L4-5 and L5-S1 were causally related to a January 4, 2012 employment incident.
On appeal, appellant’s attorney asserts that the August 7, 2013 decision is contrary to fact
and law because it ignores hearing testimony and probative medical evidence from attending
physicians.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 9, 2012 appellant, then a 33-year-old city carrier (transitional employee) filed
a traumatic injury claim alleging that on January 4, 2012 he sustained an injury to his low back
when he tripped going up steps while delivering mail. He stopped work that day.
An OWCP Form CA-16, authorization for examination, dated January 9, 2012, indicated
that appellant was authorized to receive office and/or hospital treatment as medically necessary
for the effects of the injury.
A Yell County, Arkansas emergency medical services (EMS) report dated January 4,
2012 indicates that a call was received at 12:55 p.m. The paramedic assessment provided a
history that appellant stepped off a step and heard a pop in his back and indicated that he was
upset, crying and complaining of lumbar pain when EMS arrived.2 Appellant was stabilized and
transported to River Valley Medical Center. The emergency department report indicates that he
was admitted at 1:30 p.m. on January 4, 2012. Dr. Robin Goodman, a Board-certified
pediatrician, noted a history that appellant almost fell and heard a pop in his back. He noted a
past history of back injury and chronic back pain and that he had had similar symptoms
previously. Physical examination demonstrated back muscle spasm. A lumbar spine x-ray was
negative. Dr. Goodman diagnosed lumbosacral strain and appellant was discharged with
medication at 3:00 p.m.
In a January 5, 2012 report, Dr. Darin K. Wilbourn, an attending Board-certified
physiatrist, noted that appellant returned for follow-up evaluation of chronic lower back pain and
bilateral lower extremity radiculitis. He indicated that appellant had a mid-line disc protrusion at
L5-S1 and a bulging disc at L4-5 without compression on the thecal sac. Dr. Wilbourn reported
a history that while delivering mail the previous day appellant sneezed as she was walking down
stairs, tripped and jarred his lower back; he then hobbled back to the mail truck and was then
taken to River Valley Medical Center by ambulance. He advised that appellant was in distress
secondary to increased pain in his lower back and into his left hip and leg. Physical examination
demonstrated positive straight leg raises bilaterally and tenderness to palpation across the lower
back. Dr. Wilbourn next saw appellant on January 11, 2012 when he reiterated his findings and
performed an L5-S1 epidural steroid injection. He advised that she could not perform his regular
work. On January 18, 2012 Dr. Wilbourn advised that appellant could return to work and
recommended a magnetic resonance imaging (MRI) scan study of the lumbar spine.
Appellant returned to full time, full duty on January 27, 2012. Dr. Wilbourn continued to
submit reports describing her physical findings.3 On March 27, 2012 he advised that appellant
was unable to work.
The employing establishment controverted the claim and provided medical reports from
Dr. Wilbourn dated May 4 to October 6, 2011. In the May 4, 2011 report, Dr. Wilbourn reported
2

The signatures of the paramedics are illegible.

3

The record also contains emergency department reports from Johnson Regional Medical Center dated
February 14 and 15, 2012. The record indicates that OWCP is adjudicating this under a separate claim.

2

that appellant had been referred with a history of chronic low back pain that had occurred off and
on for the past three years. He noted that in addition to work as a mail carrier, she also worked
in environmental services at a hospital. Dr. Wilbourn reported that appellant had an MRI scan
study on April 18, 2011 that demonstrated a bulging disc at L4-5 and a mid-line disc protrusion
at L5-S1 without compression on the thecal sac or displacement of the exiting nerve roots.
Physical examination demonstrated a mildly positive straight leg raise bilaterally and tenderness
to palpation across the lower back. Dr. Wilbourn performed an epidural steroid injection on
May 18, 2011 and on June 9, 2011 indicated that appellant was doing better. On October 6, 2011
he stated that she reported increased low back pain and that he had quit his hospital job due to
the increased pain. Dr. Wilbourn reiterated his findings and conclusions.
In correspondence dated April 23, 2012, OWCP notified appellant that when his claim
was received, it appeared to be a minor injury, but because the medical bills had exceeded
$1,500.00, the merits of the claim needed to be formally considered. Appellant was informed
that the medical evidence did not substantiate that the disc protrusion at L5-S1 and the bulging
disc at L4-5 were caused or aggravated by the January 4, 2012 employment incident. He was
asked to provide a medical explanation as to how this incident caused or aggravated his
preexisting condition.
Appellant thereafter submitted an April 6, 2012 MRI scan study of the lumbar spine that
demonstrated a disc extrusion at L5-S1 with posterior displacement and compression of the
descending right S1 nerve and a posterior annular tear and broad-based disc displacement at
L4-5. In an April 12, 2012 report, Dr. Wilbourn indicated that she reported that he had been
terminated by the employing establishment on April 2, 2012. He noted the April 6, 2012 MRI
scan study findings and indicated that he was referring appellant to a spinal surgeon.
By decision dated May 24, 2012, OWCP denied the claim on the grounds that the
medical evidence had not established that the claimed condition was causally related to the
accepted January 4, 2012 employment incident. Appellant, through his attorney, timely
requested a hearing that was held on September 18, 2012. At the hearing, he described the
January 4, 2012 incident. Appellant testified that he began having back problems in April 2011
but did not report it at work, and that he had back surgery on July 25, 2012. Counsel argued that
the January 4, 2012 work incident caused more than a lumbosacral strain and the conditions
shown on the MRI scan study should be accepted. The hearing representative advised counsel to
obtain the operative report. The record was left open for 30 days. Nothing further was
submitted.
In a December 14, 2012 decision, OWCP’s hearing representative found that appellant
established that on January 4, 2012 he sustained a lumbosacral strain but that he did not establish
that the January 4, 2012 employment incident caused any further lumbar conditions including the
disc bulge and protrusion at the L4-5 and L5-S1 levels. She affirmed the May 24, 2012 decision
as modified.
On December 17, 2012 OWCP accepted that appellant sustained an acute lumbosacral
sprain. On April 11, 2013 counsel requested that the claim be upgraded to include additional
diagnoses. On June 19, 2013 OWCP informed him to follow the appeal rights contained in the
December 14, 2012 decision.

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Appellant, through his attorney, requested reconsideration on July 2, 2013. Counsel
asserted that the medical evidence was sufficient to establish that additional conditions should be
accepted because the January 4, 2012 work incident aggravated appellant’s preexisting
condition. Appellant submitted a February 5, 2013 form report in which Dr. Richard Peek, a
Board-certified orthopedic surgeon, described the incident as “delivering mail for postal service
before I assumed his care.” Dr. Peek noted subjective complaints of bilateral sciatica, L5-S1
sensory deficit and spasms with physical examination findings of positive straight leg raises,
bilateral sensory deficits and spasm. He reported x-ray and MRI scan findings of instability and
postlaminectomy changes. Dr. Peek diagnosed postlaminectomy instability at L5-S1 and
herniated nucleus pulposus at L4-5. In an April 4, 2013 progress note, Dr. George Timothy
Burson, a Board-certified neurosurgeon, noted a two-year history of persistent radiating low back
pain. He stated that there was no injury and noted that after 2012 back surgery, appellant’s pain
worsened. Dr. Burson provided physical examination findings and diagnosed chronic pain
syndrome and postlaminectomy syndrome of the lumbar region. On April 24, 2013 he placed a
pain pump with intrathecal catheter.
In a merit decision dated August 7, 2013, OWCP denied modification of the prior
decision, finding that the medical evidence submitted was insufficient to establish that the L4-5
and L5-S1 disc bulge and protrusion conditions were causally related to the January 4, 2012
employment injury.
LEGAL PRECEDENT
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.4 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 employee.5 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.6
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of the claimant’s own conduct as an independent intervening cause. The basic rule is
that a subsequent injury, whether an aggravation of the original injury or a new and distinct
injury, is compensable if it is the direct and natural result of a compensable primary injury.7
4

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

6

Dennis M. Mascarenas, 49 ECAB 215 (1997).

7

Larson, The Law of Workers’ Compensation § 10.01 (June 2010); see Charles W. Downey, 54 ECAB
421 (2003).

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ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that the
January 4, 2012 employment injury caused or aggravated his preexisting disc protrusion at L5-S1
and a bulging disc at L4-5 because the medical evidence is insufficient to establish causal
relationship. OWCP accepted that he sustained an employment-related acute lumbosacral sprain
on January 4, 2012.
The April 6, 2012 MRI scan study did not provide a cause of any diagnosed conditions
and 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.8 Likewise, the opinion
of Dr. Wilbourn is insufficient to establish causal relationship. He clearly indicated in a May 4,
2011 report, seven months before the January 4, 2012 employment injury, that appellant had a
two- to three-year history of chronic back pain and that an April 18, 2011 MRI scan study
demonstrated a bulging disc at L4-5 and a mid-line disc protrusion at L5-S1. These conditions
therefore predated the January 4, 2012 employment injury. In numerous reports submitted by
Dr. Wilbourn subsequent to the January 4, 2012 employment injury, he did not include an
opinion as to the cause of any diagnosed conditions at L4-5 and L5-S1.
Dr. Goodman, in the January 4, 2012 emergency department report, diagnosed a
lumbosacral strain. A lumbosacral sprain has been accepted as employment related and he did
not discuss additional lumbosacral conditions.9 Dr. Peek merely indicated that there was an
incident while appellant was delivering mail that occurred prior to his care. He did not describe
the January 4, 2012 incident or provide any explanation regarding the cause of appellant’s
diagnosed conditions of postlaminectomy instability at L5-S1 and herniated nucleus pulposus at
L4-5. Dr. Burton did not provide a cause of appellant’s diagnosed condition. In fact, he stated
that there was no injury.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to his
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.10 It is appellant’s burden to establish that his claimed back

8

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

9

The Board notes that in the December 14, 2012 decision, OWCP’s hearing representative stated lumbosacral
strain was accepted. The December 17, 2012 OWCP correspondence to appellant indicated that acute lumbosacral
sprain was accepted.
10

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

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condition is causally related to factors of his federal employment. In this case, he submitted
insufficient evidence to show that the diagnosed conditions at L4-5 and L5-S1 were caused by
the January 4, 2012 employment injury.11
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 did not establish that the conditions of disc protrusion at
L5-S1 and a bulging disc at L4-5 were caused or aggravated by the January 4, 2012 employment
injury.

11

Supra note 6. The Board, however, notes that where, as in this case, an employing establishment properly
executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, the Form CA-16 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 Tracy P. Spillane,
54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the
date of issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c). The record in this case indicates that
emergency room medical treatment was a covered expense.

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ORDER
IT IS HEREBY ORDERED THAT the August 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsfield, ME, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-322
Issued: September 15, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On November 22, 2010 counsel filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) decision dated October 19, 2010 in OWCP claim number
xxxxxx847.1
In the October 19, 2010 decision, an OWCP hearing representative affirmed in part and
set aside in part a December 31, 2002 decision that terminated appellant’s compensation,
effective January 9, 2001, on the grounds that he refused suitable work. The hearing
representative found that OWCP improperly terminated appellant’s compensation as the correct
issue was not suitable work, but whether he sustained a recurrence of disability in January 2001
due to a change in the accepted lumbar conditions or withdrawal of his modified-duty job. The
hearing representative then denied that appellant sustained a recurrence of disability as there was
no evidence his light-duty job was withdrawn, but she did not discuss the medical record.

1

This matter has previously been before the Board. On March 16, 2006 the Board affirmed in part and modified
in part OWCP’s June 21, 2005 decision denying his claim for an emotional condition, chest pain and
gastroesophageal reflux disease. The Board found that appellant established compensable employment factors but
not that the claimed conditions were due to those factors. Docket No. 05-1916 (issued March 16, 2006).

The Board cannot determine the basis for OWCP’s October 19, 2010 decision. In
determining whether a claimant has discharged his burden of proof and is entitled to
compensation benefits, OWCP is required by statute and regulations to make findings of fact.2
OWCP procedure further specifies that a final decision must include findings of fact and provide
clear reasoning which allows the claimant to “understand the precise defect of the claim and the
kind of evidence which would tend to overcome it.”3 These requirements are supported by
Board precedent.4
The Board finds that OWCP’s hearing representative failed to properly explain her
findings with respect to the issues presented. Although her decision states that the claim is now
denied because a recurrence of disability was not established, instead of a refusal of suitable
work under 5 U.S.C. § 8106(c), she did not cite to specific medical evidence supporting her
finding that appellant did not sustain a recurrence of disability in January 2001. Also, a review
of the three claim files relevant on the present appeal reveals that OWCP did not develop a
medical recurrence issue in this case.
The case must therefore be returned to OWCP for a proper decision which includes
findings of fact, a clear and a precise statement regarding the basis for the decision. Following
such further development as OWCP deems necessary, it shall issue an appropriate merit
decision.

2

5 U.S.C. § 8124(a) provides: “The [OWCP] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.” See also Tonja R. Hiebert, 55 ECAB 706 (2004);
Beverly Dukes, 46 ECAB 1014 (1995).
3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

4

See James D. Boller, Jr., 12 ECAB 45 (1960).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 19, 2010 is set aside, and the case remanded for further
action consistent with this order of the Board to be followed by an appropriate decision.
Issued: September 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION, MEDICAL
CENTER, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-860
Issued: November 2, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 17, 2011 appellant, through counsel, filed a timely appeal from an
August 30, 2010 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration. Because more than 180 days has elapsed between the
last merit decision dated August 13, 2009 to the filing of this appeal, the Board lacks jurisdiction
to review the merits of appellant’s claim, pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s representative contends that OWCP should accept additional
conditions due to her December 28, 2007 employment injury and that her January 7, 2008
recurrence claim is compensable under FECA.
FACTUAL HISTORY
On December 28, 2007 appellant, then a 22-year-old part-time nurse, filed a traumatic
injury claim alleging that she sustained injuries to her head, wrist, elbow, hand and knee on that
day when she slipped on a wet floor. OWCP accepted the claim for closed fracture of the
sacrum and coccyx without injury to the spinal cord. Appellant returned to full-duty work on
January 5, 2008 and stopped work on January 7, 2008.
On January 25 and February 7, 2008 OWCP received an undated attending physician’s
report (Form CA-20) from Dr. Leslie Dreifus, a treating chiropractor, who diagnosed sacral
fracture and lumbar radiculitis and checked “yes” that the conditions were due to the
December 28, 2007 employment injury. Dr. Dreifus indicated that appellant was totally disabled
for the period December 28, 2007 through March 1, 2008.
On February 25, 2008 appellant filed a claim for a recurrence of disability beginning
January 7, 2008.
In a letter dated March 10, 2008, OWCP advised appellant as to the evidence required to
support her claim for a recurrence of disability.
Subsequently OWCP received a March 7, 2008 work capacity evaluation (Form OWCP5c) from Dr. Philip D.P. Abessinio, a treating chiropractor, who found her totally disabled from
work. In a February 23, 2008 report, Dr. Jagga Rao Alluri, a treating Board-certified
neurologist, noted that appellant sustained a back injury at work and that she continued to have
lower back pain. Dr. Alluri’s diagnosis was to rule out right lumbar radiculopathy.
In a February 27, 2008 report, Dr. Dorothy Norwood, an examining physician, noted that
appellant had been out of work since her December 28, 2007 employment injury. She reported
that appellant was attending classes and driving. Dr. Norwood related that an initial x-ray
interpretation stated that a hairline fracture of the sacrum could not be ruled out and that a
computerized tomography (CT) scan of the sacrum found no evidence of an abnormal
dysraphism or fracture. In concluding, she opined that appellant’s back pain could not be
attributed to her employment injury as there was no sacral fracture. Dr. Norwood noted that the
findings of the sacral area were congenital “and at most the fall exacerbated these findings.”
In a March 13, 2008 report, Dr. Dev J. Berkowitz, an examining physician, related that
appellant sustained an employment injury on December 28, 2007 when she slipped and fell on a
wet floor. Appellant was seen for her continuing complaints of lower back pain radiating into
her right leg. Review of an x-ray interpretation revealed a S4 hairline fracture. Dr. Berkowitz
noted a CT scan was negative for a sacrum fracture and that a lumbar magnetic resonance scan
(MRI) was negative for a disc herniation.
On April 18, 2008 OWCP received an undated report from Dr. Dreifus who noted that
appellant was seen on January 16, 2008 for employment injuries sustained on December 28,
2

2007 as a result of slipping and falling on a wet floor. She reported a sacral fracture based on an
x-ray interpretation. Diagnoses included sacral fracture, sciatic neuritis, lumbar radiculitis,
lumbar facet syndrome and L5 subluxation. Dr. Dreifus indicated that until appellant’s sacral
fracture healed she was unable to work.
By decision dated May 22, 2008, OWCP denied appellant’s recurrence claim beginning
January 7, 2008 finding that the medical evidence of record failed to establish a causal
relationship between the alleged disability and the December 28, 2007 employment injury.2
OWCP received additional medical and diagnostic reports. In a February 5, 2008 report,
Dr. Abessinio diagnosed sciatic neuritis, lumbar intervertebral disc syndrome and S4 transverse
sacral fracture as a result of her work injury. He concluded that appellant was currently totally
disabled as a result of these employment related injuries.
In May 14, 2009 letter, counsel requested reconsideration of the denial of her January 7,
2008 recurrence claim. He contended that OWCP erred in failing to expand her claim to include
all the diagnosed conditions sustained as a result of her December 28, 2007 employment injury.
Counsel also contended that appellant’s January 7, 2008 recurrence was compensable as it
occurred within 90 days of her employment injury. In support of her claim, appellant submitted
a received a February 5, 2008 report and x-ray examination report from Dr. Abessinio.
Dr. Abessinio reported seeing appellant on that date for treatment of multiple spinal
injuries sustained as a result of her December 28, 2007 employment injury. He provided
physical findings and noted that he had reviewed x-ray interpretations and an MRI scan.
Dr. Abessinio concluded that appellant was totally disabled from working at this point and
recommended chiropractic treatment. In the February 5, 2008 x-ray examination report, he
diagnosed T9, right L2, T10, T11 and left L3 rotation malpositions, mild L5-S1 decreased disc
spacing, nonfusion of S1-L5, increased psoas shadows on left noted and right A1 sacrum.
By decision dated August 13, 2009, OWCP modified the prior decision to find the
medical evidence insufficient to establish that appellant was disabled from performing her duties
due to her accepted employment injury. It denied expanding her claim for any additional
conditions.
On August 6, 2010 counsel requested reconsideration. Appellant contended that OWCP
erred in failing to expand her claim to include additional conditions and that it should have
accepted her recurrence claim as it had occurred within 90 days of her accepted employment
injury.
By decision dated August 30, 2010, OWCP denied reconsideration.

2

On April 21, 2009 OWCP accepted her claim for a recurrence of disability beginning October 11, 2008.

3

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
In an August 13, 2009 decision, OWCP found counsel was correct in his argument that
OWCP erred in focusing on causal relationship when it denied her claim for a recurrence of
disability occurring within 90 days of her accepted employment injury. It found the evidence
was insufficient to support her recurrence claim, as the medical evidence was insufficient to
establish that she was disabled from performing her duties due to her accepted employment
injury. On August 30, 2010 OWCP denied merit review of its prior decisions denying her
recurrence claim beginning January 7, 2008.
As noted, the Board does not have jurisdiction over the merits of this case. The issue
presented is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2) requiring
OWCP to reopen the case for review of the merits of the claim. The Board finds that appellant
did not raise any new argument that OWCP erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered.
On appeal counsel reiterated that OWCP failed to accepts additional conditions and that
appellant’s January 7, 2008 recurrence was compensable as it occurred within 90 days of her
employment injury. Appellant’s arguments however, were previously considered by OWCP in
its August 13, 2009 decision. In fact, OWCP modified the denial of her recurrence claim when it
found her argument that burden of proof for a recurrence of disability within 90 days of an
accepted employment injury is different than that occurring after 90 days. In its August 13, 2009
decision, OWCP specifically found that it had erred in focusing on the issue of causal
relationship when the issue should have been whether the evidence established disability due to
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(2). See Susan A. Filkins, 57 ECAB 630 (2006); J.M., Docket No. 09-218 (issued July 24,
2009).
5

20 C.F.R. § 10.607(a).
July 9, 2009).

See Robert G. Burns, 57 ECAB 657 (2006); S.J., Docket No. 08-2048 (issued

6

20 C.F.R. § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006); Y.S., Docket No. 08-440 (issued
March 16, 2009).

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the accepted employment injury. The Board has held that the submission of evidence or
argument which repeats or duplicates that already in the case record does not constitute a basis
for reopening a case.7 As such, appellant’s contention is insufficient to warrant further merit
review of her claim.
Appellant has not shown that OWCP erroneously applied or interpreted a specific point
of law or advanced a relevant legal argument not previously considered by OWCP. Further, she
failed to submit relevant and pertinent new evidence not previously considered by OWCP. As
appellant did not meet any of the necessary regulatory requirements, the Board finds that she was
not entitled to a merit review.8
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Edward W. Malaniak, 51 ECAB 279 (2000).

8

See James E. Norris, 52 ECAB 93 (2000).

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