United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION
OUTPATIENT CLINIC, Columbus, OH,
Employer
__________________________________________

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

Docket No. 07-1919
Issued: January 24, 2008

Case Submitted on the Record

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

JURISDICTION
On May 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 27, 2006 and April 27, 2007 merit decisions denying her
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On December 14, 2005 appellant, then a 40-year-old staff assistant, filed a claim alleging
that she sustained depression due to being harassed by a supervisor. She stopped work on
October 25, 2005.

In several statements, appellant alleged that she was harassed by Dr. Lilian Thome, a
supervisor. She claimed that on June 23, 2005 when she was describing a roller coaster ride
Dr. Thome stated, “You are lucky that your last ovary did not fall out.” Appellant claimed that
Dr. Thome made this statement in the presence of coworkers and then laughed. She asserted that
on June 24, 2005 she declined to participate in a car wash for employees and Dr. Thome
responded in the presence of coworkers, “Who do you think you are Princess Sahara?”
Appellant claimed that Dr. Thome visited her in the hospital on October 24, 2005 while she was
recovering from an ovarian cyst condition and commented that she was “cheaply made” or
“cheaply put together.” She alleged that Dr. Thome harassed her by discussing her private
medical information, including information about gynecological problems, with other employing
establishment officials. Appellant claimed that on November 3, 2005 Dr. Thome discussed her
private medical information in front of Dr. Miguel H. Lapuz, a supervisor, despite her request
that Dr. Lapuz not be present. She claimed that Dr. Thome would “shun” her whenever she
became sick. Appellant claimed that after her work duties changed her coworkers began to
whisper about her.
Appellant claimed that on June 27, 2005 she was advised that duties were being removed
from her position and that she would receive a reduction in grade. She alleged that, after this
meeting, her work duties declined and she had fewer communications with Dr. Thome.
Appellant asserted that she no longer had weekly meetings with Dr. Thome, that she was given
assignments by a third party and that she was excluded from “executive level activities.” She
claimed that management unfairly denied her requests to telecommute and did not make
adequate attempts to accommodate her physical condition. Appellant asserted that after she
returned to work in January 2006 Dr. Thome told her that she no longer needed a staff assistant
and advised her that she would be working for someone else. She claimed that she did not
receive a proper description of her new position until March 2006. Appellant alleged that
management unfairly requested certain medical reports to justify leave requests.
Appellant submitted medical reports from attending physicians, including reports from
Dr. Samuel Dixon, an attending clinical psychologist. She also submitted documents from an
Equal Employment Opportunity (EEO) claim she filed.
In a May 5, 2006 statement, Dr. Thome denied that she subjected appellant to harassment
or discrimination. She asserted that on October 24, 2005 she visited appellant in the health unit
and told a story about how her own husband complained of blisters and joked that he was “put
together cheap.” Dr. Thome claimed that she did not intend to embarrass or belittle appellant
and stated, “I was not comparing [appellant’s] condition with my husband’s and was merely
trying to lighten the moment for her.” She indicated that appellant laughed at the comment
which led her believe that she did not take offense. Dr. Thome indicated that appellant could not
telecommute because her job required her to work on site. The record contains an October 26,
2005 email in which Dr. Thome apologized to appellant for talking about how her own husband
had foot blisters and was “put together cheap.” She stated, “I was trying to make your day less
stressful by sort of comparing your situation. Of course, they are not similar.”
In a June 27, 2006 decision, the Office denied appellant’s claim on the grounds that she
did not establish any compensable employment factors. The Office found that appellant was not

2

subjected to harassment or discrimination and that the employing establishment did not commit
error or abuse with respect to administrative matters.
Appellant requested a hearing before an Office hearing representative. At the January 11,
2007 hearing, she provided further details regarding her claimed employment factors. Appellant
claimed that after she was told that her job did not exist she did not receive certain information,
including information about budget matters. She claimed that she was unfairly terminated in
December 2006 for unexcused absences and failure to perform her work.
Appellant submitted additional medical evidence and numerous documents related to her
EEO claim including several transcripts conducted by EEO officials. In an August 17, 2006
interview, Dr. Thome again denied that she harassed appellant and repeated her account of the
statements she made about her own husband being “cheaply made.” In an August 23, 2006
interview, Debra Shiley, a management official, indicated that she did not have any reason to
believe that Dr. Thome inappropriately shared appellant’s private medical information. In
another August 23, 2006 interview, Teri Mzozoyana, a management official, stated that
Dr. Thome submitted paperwork regarding appellant’s telecommuting request but it was
determined that the nature of her work prevented her from working at home. She indicated that
appellant’s job changed in January 2006 because a new associate director was hired and there
was a shift in the work load.
In an April 27, 2007 decision, the Office hearing representative affirmed the Office’s
June 27, 2007 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction in force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.3 This burden includes the submission of a detailed

1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
3

Pamela R. Rice, 38 ECAB 838, 841 (1987).

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description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that she did not establish any compensable employment factors. The Board must,
thus, initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant alleged that she was subjected to harassment and discrimination by Dr. Thome,
a supervisor. She claimed that Dr. Thome made a comment about her ovary falling out and
called her “Princess Sahara” after she declined to participate in a car wash for employees.
Appellant asserted that Dr. Thome visited her in the hospital on October 24, 2005 while she was
recovering from an ovarian cyst condition and commented that she was “cheaply made” or
“cheaply put together.” She alleged that Dr. Thome harassed her by discussing her private
medical information, including information about gynecological problems, with other employing
establishment officials. Appellant claimed that Dr. Thome would “shun” her whenever she
became sick. She claimed that after her work duties changed her coworkers began to whisper
about her.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.7
However, for harassment or discrimination to give rise to a compensable disability under the Act,

4

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

5

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

6

Id.

7

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

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there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under the Act.8
In the present case, the employing establishment denied that appellant was subjected to
harassment or discrimination and she has not submitted sufficient evidence to establish that she
was harassed or discriminated against by her supervisors or coworkers.9 Appellant alleged that
supervisors and coworkers made statements and engaged in actions which she believed
constituted harassment and discrimination, but she provided no corroborating evidence, such as
witness statements, to establish that the statements actually were made or that the actions
actually occurred.10 In particular, there is no evidence that Dr. Thome improperly shared private
medical information, made the comments about her ovary falling out or called her “Princess
Sahara.” Appellant filed an EEO complaint about some of these matters but the record does not
contain a final decision concerning this complaint which shows that the employing establishment
committed harassment or discrimination.
With respect to appellant’s allegations that Dr. Thome stated that she was “cheaply
made” or “cheaply put together,” there is no evidence that Dr. Thome made such comments
about appellant. Dr. Thome testified that she actually stated that her own husband was “put
together cheap” as a means of lightening the situation for appellant. She asserted that she had no
intent to embarrass or belittle appellant and that appellant actually laughed at the comment.
Although the Board has recognized the compensability of verbal abuse in certain circumstances,
this does not imply that every statement uttered in the workplace will give rise to coverage under
the Act.11 Appellant has not shown how such an isolated and seemingly innocent comment
would rise to the level of verbal abuse or otherwise fall within the coverage of the Act. Thus,
she has not established a compensable employment factor under the Act with respect to the
claimed harassment and discrimination.
Appellant claimed that on June 27, 2005 she was advised that duties were being removed
from her position and that she would receive a reduction in grade. She alleged that after this
meeting her work duties declined and she had fewer communications with Dr. Thome, that she
was given assignments by a third party and that she was no longer privy to certain information.
She claimed that management unfairly denied her requests to telecommute and did not make
adequate attempts to accommodate her physical condition. Appellant asserted that after she
returned to work in January 2006 Dr. Thome told her that she no longer needed a staff assistant
and advised her that she would be working for someone else. She alleged that management
unfairly requested certain medical reports to justify leave requests and issued her unfair
disciplinary actions.

8

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

9

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
10

See William P. George, 43 ECAB 1159, 1167 (1992).

11

Harriet J. Landry, 47 ECAB 543, 547 (1996).

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Regarding appellant’s allegations that the employing establishment improperly assigned
work duties, incorrectly handled job transfers and accommodation requests, engaged in improper
disciplinary actions and wrongly denied leave, the Board finds that these allegations relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and do not fall within the coverage of the Act.12 Although the handling of such
matters are generally related to the employment, they are administrative functions of the
employer and not duties of the employee.13 However, the Board has also found that an
administrative or personnel matter will be considered to be an employment factor where the
evidence discloses error or abuse on the part of the employing establishment. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.14
The Board finds that appellant did not submit sufficient evidence to establish that the
employing establishment committed error or abuse with respect to these matters. Moreover,
employing establishment officials explained that proper procedures were followed with respect
to such matters as work assignments, job transfers, leave usage and telecommuting requests. For
example, a management official stated that Dr. Thome submitted paperwork regarding
appellant’s telecommuting request but it was determined that the nature of her work prevented
her from working at home. The same official noted that appellant’s job changed in January 2006
because a new associate director was hired and there was a shift in the work load. Thus,
appellant has not established a compensable employment factor under the Act with respect to
administrative matters.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.15
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

12

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
13

Id.

14

See Richard J. Dube, 42 ECAB 916, 920 (1991).

15

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 27, 2007 and June 27, 2006 decisions are affirmed.
Issued: January 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Seattle, WA, Employer
__________________________________________

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Appearances:
Ranier Brown, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1274
Issued: October 16, 2007

Case Submitted on the Record

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

JURISDICTION
On April 9, 2007 appellant, through his representative, filed a timely appeal from a
February 8, 2007 merit decision terminating his compensation and a March 15, 2007 nonmerit
decision denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case and over the March 15, 2007 nonmerit
decision.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
authorization for medical benefits effective February 8, 2007 on the grounds that he had no
further residuals of his August 19, 2005 employment injury; and (2) whether it properly denied
his request for merit review under 5 U.S.C. § 8128.
FACTUAL HISTORY
On August 19, 2005 appellant, then a 34-year-old mail handler, filed a claim alleging that
he sustained low back pain on that date after lifting sacks of mail. The Office accepted his claim

for lumbar strain. Appellant stopped work on August 20, 2005 and returned to work with
restrictions on August 21, 2005.
In a duty status report dated June 27, 2006, Dr. Abid Haq, a Board-certified internist,
listed permanent work restrictions. On June 28, 2006 he opined that appellant had a permanent
impairment of the back. On April 21, 2006 the Office referred appellant to Dr. Joan Sullivan, a
Board-certified orthopedic surgeon, for a second opinion evaluation. On May 19, 2006
Dr. Sullivan diagnosed lumbar strain due to appellant’s employment injury. She stated,
“[Appellant] has no focal neurologic findings and he should be cleared to return to his regular
duty without restrictions.” In a supplemental report dated August 29, 2006, Dr. Sullivan asserted
that appellant required no additional medical treatment.
On August 29, 2006 Dr. R. Anton Posch, Board-certified in family practice, diagnosed
lumbar sprain and strain. He opined that appellant should continue working “with long-term
restrictions” and should return in one month for follow-up care. Dr. Posch disagreed with
Dr. Sullivan’s conclusions and referred to Dr. Haq’s June 27, 2006 report finding permanent
work restrictions.
The Office determined that a conflict existed between Dr. Sullivan, the Office referral
physician, and Dr. Posch and Dr. Haq, appellant’s attending physicians, on the issue of whether
he could resume his regular employment and whether his condition had resolved. The Office
referred him to Dr. Donald D. Hubbard, a Board-certified orthopedic surgeon, for an impartial
medical examination. On November 24, 2006 Dr. Hubbard reviewed the evidence of record and
performed a physical examination. He noted that a computerized tomography (CT) scan dated
December 23, 2005 revealed no pelvic or sacroiliac joint abnormality. A magnetic resonance
imaging (MRI) scan dated May 14, 2006 showed “early severe disc desiccation with features
consistent with degenerative disc changes.” On examination, Dr. Hubbard listed findings of
normal sensation, reflexes and motor strength. He found tenderness to palpation over the left
more than right sacroiliac joints. Dr. Hubbard diagnosed lumbosacral strain/sprain by history
and “[p]ossibly subjective aggravation without objective verification of radiographic evidence of
preexisting asymptomatic age-related L3-4, L5-S1 and L4-5 disc degeneration.” He further
diagnosed low back pain by history secondary to left more than right sacroiliac joint pain.
Dr. Hubbard attributed the low back pain to either preexisting but undiagnosed inflammatory
arthritis or “[p]ossible [b]ilateral sacroiliac joint sprains related to the August 19, 2005 work
injury.” He found that appellant had no objective evidence of the lumbosacral strain but had
objective evidence of inflammatory arthritis by HLA-B27 blood test and evidence of the arthritis
and bilateral sacroiliac joint sprains by the history of his responses to left sacroiliac joint
injections. Dr. Hubbard stated, “The work injury of August 19, 2005 caused the accepted
diagnosis of lumbosacral strain/sprain; and possibly unrecognized bilateral sacroiliac joint
sprain.” He opined that the lumbosacral strain and possible bilateral sacroiliac joint sprains
“may have in part, been injury-related conditions reflecting the symptomatic onset of an
underlying nonspecified anti-inflammatory arthrosis condition of the lumbosacral spine and
sacroiliac joints. In other words, [appellant’s] lower back region of the spine and sacroiliac
joints may have been more susceptible to injury on August 19, 2005 due to the underlying
inflammatory arthrosis condition.” Dr. Hubbard asserted, “Objective findings of lumbosacral
strain/sprain and bilateral sacroiliac joints sprains has resolved. Low back area pain and left
greater than right sacroiliac joint pain persists.” Dr. Hubbard found that the accepted condition

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of lumbosacral strain would not prevent appellant from performing his usual employment. He
opined that appellant was unable to perform his regular employment duties because of his
nonemployment-related bilateral sacroiliitis. Dr. Hubbard additionally asserted that appellant
required continuing medical treatment for the nonemployment-related left greater than right
sacroiliitis. He reiterated that he had no objective evidence of his August 19, 2005 employment
injury.
On December 28, 2006 the Office notified appellant that it proposed to terminate his
compensation and authorization for medical benefits on the grounds that he had no further
employment-related condition or disability. On January 17, 2007 appellant authorized a
representative on his behalf before the Office. He submitted a January 24, 2007 statement from a
workers’ compensation case manager and reports from a physician’s assistant. In a progress
report dated January 24, 2007, Dr. Posch indicated that he found Dr. Hubbard’s conclusions
confusing and opined that the case “should have been closed with permanent restrictions.” By
decision dated February 8, 2007, the Office terminated appellant’s compensation and medical
benefits effective that date.
Appellant, through his representative, requested reconsideration on February 15, 2007.
He argued that he was not provided the opportunity to participate in the selection of the impartial
medical examiner. In a report dated February 2, 2007, Dr. Posch disagreed with Dr. Hubbard’s
conclusion that appellant’s symptoms were caused by nonemployment-related sacroiliitis. He
asserted that a small percentage of individuals had positive HLA-B27 blood test results without
an inflammatory condition and noted that a rheumatologist concluded that appellant did not have
sacroiliitis. Dr. Posch agreed with Dr. Haq that appellant had permanent employment-related
work restrictions. Appellant also submitted reports from a physician’s assistant dated
February 26, 2007 and massage therapy notes.
By decision dated March 15, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant reopening
the case for merit review.
LEGAL PRECEDENT -- ISSUE 1
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.1 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.2
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.3 The implementing regulation states that, if a
1

Pamela K. Guesford, 53 ECAB 727 (2002).

2

Id.

3

5 U.S.C. § 8123(a).

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conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.4 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar strain due to an August 19, 2005
employment injury. Appellant stopped work on August 20, 2005 and returned to full-time
limited-duty employment on August 21, 2005.
Dr. Sullivan, an Office referral physician, found that appellant had no neurological
findings and could resume his usual employment without restrictions. She further opined that he
required no further medical treatment. Dr. Posch, an attending physician, disagreed with
Dr. Sullivan’s findings. He diagnosed lumbar strain and opined that appellant required
permanent work restrictions due to his employment injury.
The Office determined that a conflict existed on the issue of whether appellant had any
further condition or disability due to his accepted employment injury. It referred him to
Dr. Hubbard for an impartial medical examination. Based on the opinion of Dr. Hubbard, the
Office terminated appellant’s authorization for medical benefits effective February 8, 2007.6
When there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.7 The Board finds that the opinion of Dr. Hubbard, a Board-certified orthopedic surgeon,
selected to resolve the conflict in opinion, is well rationalized and based on a proper factual and
medical history. Dr. Hubbard accurately summarized the relevant medical evidence, provided
detailed findings on examination and reached conclusions about appellant’s condition which
comported with his findings.8 He interpreted a December 23, 2005 CT scan as showing no
pelvic or sacroiliac joint abnormality and a March 14, 2005 MRI scan as revealing degenerative
changes and early severe disc desiccation. On examination, Dr. Hubbard found normal strength
4

20 C.F.R. § 10.321.

5

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

6

The Office, in its February 8, 2007 decision, indicated that it was terminating appellant’s compensation and
entitlement to medical treatment. As the Office was not paying him compensation, however, it improperly
characterized the issue as termination of wage-loss compensation. The issue is whether appellant has residuals of
his employment injury entitling him to further medical treatment.
7

Id.

8

Manual Gill, 52 ECAB 282 (2001).

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and sensation and tenderness over the sacroiliac joints bilaterally. He diagnosed lumbosacral
strain by history and a possible subjective aggravation of preexisting disc degeneration.
Dr. Hubbard also diagnosed low back pain by history due to either inflammatory arthritis or a
possible employment-related sprain of the bilateral sacroiliac joints. He found that appellant had
evidence of inflammatory arthritis by HLA-B27 blood test and that his nonemployment-related
sacroilitis would prevent him from performing his regular employment duties. Dr. Hubbard
stated, “Objective findings of lumbosacral strain/sprain and bilateral sacroiliac joint sprains have
resolved.” In response to the question of whether appellant had any residuals of his employment
injury, he again advised that he saw no evidence of the accepted employment injury.
Dr. Hubbard recommended further medical treatment of appellant’s nonemployment-related
condition of left greater than right sacroiliitis. As Dr. Hubbard’s report is detailed, well
rationalized and based on a proper factual background, his opinion is entitled to the special
weight accorded an impartial medical examiner and is sufficient to meet the Office’s burden of
proof to terminate appellant’s entitlement to medical treatment due to his accepted employment
injury.9
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,10 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.11 To be entitled to a merit
review of an Office 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.12 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.13
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.14 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.15 While the reopening of a case may be predicated

9

Id.

10

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
11

20 C.F.R. § 10.606(b)(2).

12

20 C.F.R. § 10.607(a).

13

20 C.F.R. § 10.608(b).

14

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

15

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

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solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.16
ANALYSIS -- ISSUE 2
The Office terminated appellant’s authorization for medical treatment based on the
opinion of Dr. Hubbard, the impartial medical examiner. With his request for reconsideration,
appellant contended that he was not allowed to participate in Dr. Hubbard’s selection. He,
however, has not raised any specific argument showing how he was prejudiced by not
participating in the selection of the impartial medical examiner. Thus, appellant’s contention
does not have a reasonable color of validity such that it would warrant reopening his case for
merit review.17
Appellant submitted a progress report dated February 2, 2007 from Dr. Posch who
disagreed with Dr. Hubbard’s conclusions that sacroiliitis caused appellant’s symptoms.
Dr. Posch opined that appellant had permanent work restrictions due to his August 19, 2005
employment injury. His report, however, is substantially similar to his prior reports finding that
appellant had a continuing employment-related condition and disability and thus, does not
constitute relevant new evidence.18
Appellant also submitted February 26, 2007 reports from a physician’s assistant. The
reports of a physician’s assistant are entitled to no weight as a physician’s assistant is not a
“physician” as defined by section 8102(2) of the Act.19
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit
pertinent new and relevant evidence not previously considered. He did not meet any of the
necessary regulatory requirements and, therefore, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
authorization for medical benefits effective February 8, 2007 on the grounds that he had no
further residuals of his August 19, 2005 employment injury. The Board further finds that the
Office properly denied his request for merit review under 5 U.S.C. § 8128.

16

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

17

Elaine M. Borghini, 57 ECAB ___ (Docket No. 05-1102, issued May 3, 2006).

18

See Severiano Marquez, 41ECAB 637 (1990).

19

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 15 and February 8, 2007 are affirmed.
Issued: October 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rochester, NH, Employer
__________________________________________

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Appearances:
Bradley M. Lown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0081
Issued: April 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 17, 2016 appellant, through counsel, filed a timely appeal from August 5 and
September 20, 2016 nonmerit decisions of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision, dated March 22, 2016 to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3 the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
On appeal counsel argues that the evidence contained in the police report is sufficient to
establish that the employment incident occurred as alleged.
FACTUAL HISTORY
On February 2, 2016 appellant, then a 65-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on January 15, 2016 her supervisor grabbed her left arm in the
presence of customers at the front window counter. She alleged that she sustained left shoulder
blade pain and stress as a result of this incident. The employing establishment portion of the
Form CA-1 indicated that appellant’s claim did not match witness statements.
Appellant’s supervisor, L.S., completed a statement alleging that on January 15, 2016
appellant called a customer to her station. He informed the customer that appellant could not
help her and L.S. instructed appellant to follow her.3 LS. instructed appellant to come with her
to the office. Appellant ignored her. L.S. noted, “At this point I touched her arm to gain her
attention. She threw her arm in the air and started shouting ‘Don’t touch me … she grabbed
me.’” L.S. informed appellant that she had not grabbed her, she touched her, and that she needed
to come to her office now. Appellant then followed L.S. to her office where L.S. informed her
that she had arranged new bids for a passport clerk. Appellant informed L.S. that she felt
disrespected and would not talk to L.S.
In a statement dated January 15, 2016, K.L, a coworker, described appellant walking
away as L.S. asked for further conversation. She noted that L.S. placed her hand on appellant’s
arm and asked her to have a conversation. Appellant threw her arm back and instructed L.S. not
to touch her. She walked away with L.S., but shortly returned to close her cash drawer.
Appellant’s customer suggested that appellant call the police. The customer then called the
police and appellant made the report. Appellant waited in the lobby with the customer, perhaps a
friend, for the police to arrive.
A second coworker, K.M., also completed a statement on that date. She reported that
L.S. had instructed appellant that they had not finished their conversation three times, before L.S.
walked to appellant’s station, told the customer that appellant could not help her, placed her hand
on appellant’s arm, and told appellant that she needed to come with her. Appellant threw her
arm in the air and told L.S. not to touch her. She then followed L.S. While appellant was gone,
the customer, who seemed to know appellant, became agitated asserting that L.S. had grabbed
appellant, that she knew people in the union, and that L.S. should be fired. When appellant
returned, the customer continued to assert that L.S. had dragged appellant away, that appellant
needed to call the union, that appellant needed to file a police report, and that she needed to
telephone the police immediately. The customer called the police and appellant reported the
incident.
3

L.S. informed appellant that she was not qualified to handle passport applications.

2

The employing establishment inspector provided an investigative memorandum which
detailed L.S.’s statement and noted that the police interviewed all parties. A coworker witnessed
the events and completed a statement regarding light contact by L.S. The employing
establishment noted that there was a history of a strained relationship between L.S. and
appellant. The employing establishment inspector concluded that there was not enough evidence
to support a charge as the validity of the alleged assault was questionable and appeared to have
been incidental contact to gain the attention of the alleged victim.
The investigative report included a witness statement from appellant’s customer that
appellant was grabbed by her supervisor. The customer indicated that L.S. grabbed appellant by
her arm and dragged her away from the counter. Appellant indicated that she had walked away
from L.S. to help customers and that L.S. grabbed her left upper arm. The officer did not
observe any marks or signs of injury. L.S. explained that she had not grabbed appellant, but
placed her hand on her arm and told her to report to the office. Appellant began screaming that
L.S. had grabbed her. A coworker, K.L., confirmed that L.S. put her hand on appellant’s arm,
rather than pulling or dragging her. Coworker K.M., also stated, that L.S. did not grab or drag
appellant. The witnesses noted that the customer, rather than appellant, had called the police and
that appellant and the customer had a personal relationship.
In support of her claim, appellant submitted January 19 and 21, 2016 notes from
Dr. Richard Capella, an osteopath, indicating that a coworker grabbed and pulled on appellant’s
left arm. Dr. Capella diagnosed left shoulder acute sprain, anxiety, stress, and panic. Appellant
sought treatment for left shoulder pain on February 9, 2016 from Dr. Peter D. Buckley, a Boardcertified orthopedic surgeon. Dr. Buckley reported that appellant sustained a left shoulder injury
on January 15, 2016 and noted that she had a history of right rotator cuff tear and surgery, but no
previous left shoulder issues. He diagnosed left shoulder joint pain possibly stemming from
cervical radiculitis and localized primary osteoarthritis of the left shoulder acromioclavicular
joint. He described the employment incident as a coworker pulling appellant’s arm and opined
that the injury was work related. Dr. Buckley indicated that appellant could return to work with
restrictions.
On February 25, 2016 OWCP requested additional factual and medical evidence from
appellant to support her claim. It noted discrepancies in the description of the employment
incident, as well as the medical evidence. OWCP provided appellant with a questionnaire and
afforded her 30 days to respond.
In a February 17, 2016 note, Dr. Reiko Johnson, a Board-certified family practitioner,
diagnosed stress and anxiety related to an incident at work involving a coworker.
Appellant completed a statement on March 4, 2016 and described the events of
January 15, 2016. She noted that she was working and attempted to ascertain when her
eligibility for processing passport applications expired. Appellant attempted to explain to L.S.,
but she became loud. She returned to her window and told L.S. “it’s okay.” L.S. followed
appellant to her window and instructed the customer that appellant would not be helping her.
She then grabbed appellant’s left forearm and pulled her. Appellant was in shock, but followed
L.S. to the office where she yelled at her. She alleged that L.S. publically humiliated her and
that two customers offered sympathy.

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By decision dated March 22, 2016, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record failed to support that the alleged events took place as she
described. It noted that the statements of appellant’s coworkers did not corroborate her version
of events. OWCP further noted that the police report noted that no injuries were visible and that
witnesses interviewed offered varying descriptions of events.
Dr. Johnson released appellant to return to fully duty on March 2, 2016. On March 8 and
April 5, 2016 Dr. Buckley diagnosed left shoulder joint pain consistent with rhomboid strain. He
released appellant to return to work with restrictions. In a May 16, 2016 report, Dr. Buckley
diagnosed rhomboid and scapular rotator strain. He opined that this condition was related to the
incident when she was pulled by her supervisor.
Appellant submitted a statement dated June 28, 2016 and alleged that her supervisor
grabbed her arm. She asserted that the witness statements meant nothing.
Counsel requested reconsideration on July 21, 2016 and submitted a note from
Dr. Buckley. In a report dated May 16, 2016, Dr. Buckley diagnosed rhomboid and scapular
rotator strain. He opined that this condition was related to the incident when she was pulled by
her supervisor.
By decision dated August 5, 2016, OWCP denied appellant’s request for reconsideration
of the merits, noting that her claim was denied due to the finding that she failed to establish that
the employment incident occurred as alleged. It determined that the additional medical evidence
submitted was irrelevant to the denial of appellant’s claim.
Counsel requested reconsideration on August 22, 2016 and submitted additional medical
evidence. He argued that corroborating evidence confirmed that the employment incident
occurred, but that the extent of physical contact was at issue. Counsel opined that there was
corroborating evidence of the physical wrenching that occurred at work. He also asserted that
the failure of the police to make a finding was irrelevant.
On August 8, 2016 Dr. Buckley diagnosed partial thickness rotator cuff tear in the left
shoulder.
By decision dated September 20, 2016, OWCP denied appellant’s request for
reconsideration of the merits of her claim. It found that counsel’s argument was cumulative and
contained no new factual evidence to support appellant’s allegation that L.S. grabbed and pulled
her arm.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.4
Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
4

5 U.S.C. §§ 8101-8193, 8128(a).

4

which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.5
Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is
timely, but does meet at least one of these three requirements, OWCP will deny the application
for review without reopening the case for a review on the merits.6 Section 10.607(a) of OWCP’s
regulations provides that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim on August 5 and September 20, 2016.
In support of the initial request for reconsideration dated July 21, 2016, counsel
submitted a note from Dr. Buckley. This medical evidence is not relevant to the basis for which
OWCP denied appellant’s claim, the failure to establish that the employment incident occurred
as alleged. As appellant failed to submit relevant new evidence in support of her request for
reconsideration, the Board finds that OWCP properly denied reconsideration of the merits in the
August 5, 2016 decision.
Counsel again requested reconsideration on August 16, 2016. He argued that appellant
had established that the incident occurred as alleged as witness statements supported that L.S.
grabbed and pulled her by the arm. The Board finds that this assertion by counsel is insufficient
to require OWCP to reopen appellant’s claim for consideration of the merits. OWCP reviewed
the witness statements prior to issuing the March 22, 2016 merit decision. Counsel’s
disagreement with OWCP’s assessment of the factual evidence does not show that OWCP
erroneously applied or interpreted a specific point of law, nor does it advance a relevant legal
argument not previously considered by OWCP. As appellant’s requests for reconsideration do
not comply with the requirements of section 20 C.F.R. § 10.606(b)(3) of OWCP’s regulations,
the Board finds that OWCP properly declined to reopen appellant’s claim for consideration of
the merits.
On appeal counsel argues that the evidence contained in the police report establishes that
the employment incident occurred as alleged. However, as explained, the Board lacks
jurisdiction over the merits of this case.

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608.

7

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(February 2016).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 20 and August 5, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 20, 2017
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 12-1338
Issued: June 10, 2013

Case Submitted on the Record

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

JURISDICTION
On July 6, 2012 appellant, through her attorney, filed a timely appeal from a March 6,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits as of November 29, 2010.
FACTUAL HISTORY
On January 29, 2005 appellant, then a 40-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging pain and lumps in her wrists from working a culling belt.
Her duties included lifting, pulling and pushing heavy equipment. Appellant stopped work on
February 18, 2005 and returned to light duty on March 15, 2005. OWCP accepted the claim for
1

5 U.S.C. § 8101 et seq.

aggravation of bilateral carpal tunnel syndrome. Appellant stopped work again on April 16,
2005 and did not return.
In an October 3, 2007 work capacity evaluation (Form OWCP-5), Dr. Mark P. Filippone,
Board-certified in physical medicine and rehabilitation, reported that appellant could not return
to her regular duties and remained totally disabled. In an October 5, 2007 report, he stated that
electromyogram (EMG) and nerve conduction studies (NCS) performed on March 23, 2007
revealed bilateral carpal tunnel syndrome and evidence of a left C5-6 cervical radiculopathy.2
Dr. Filippone advised that appellant remained disabled due to residuals of her accepted
condition.3
After development of the medical evidence, OWCP issued a December 12, 2008 decision
terminating appellant’s compensation benefits effective December 21, 2008. It found that the
weight of medical opinion was represented by Dr. Abbott J. Krieger, a Board-certified
neurosurgeon, who was designated as an impartial medical specialist.4 However, the termination
was subsequently set aside in a July 23, 2009 decision of an OWCP hearing representative, who
found that there was no conflict in medical opinion at the time of the referral to Dr. Krieger, as
Dr. Mormino, the second opinion physician, and Dr. Filippone, appellant’s physician, agreed that
she had employment-related bilateral carpal tunnel syndrome for which surgery was
recommended. Therefore, the report from Dr. Krieger was that of a second opinion specialist
and was in conflict with that of appellant’s treating physician, Dr. Filippone. The hearing
representative reinstated appellant’s compensation benefits. OWCP was directed to refer
appellant with an updated statement of accepted facts to an appropriate physician for an impartial
medical examination.
As relevant to this appeal, Dr. Krieger reported on July 22, 2008 that appellant did not
have carpal tunnel syndrome or cervical radiculopathy and that her subjective complaints were
out of proportion to the objective findings. He stated that NCS obtained by Dr. Filippone were
borderline abnormal and showed no change overtime. Dr. Krieger who conducted an EMG
suspected a neuropathic process other than carpal tunnel syndrome, possibly diabetes. He stated
that appellant’s carpal tunnel condition had stabilized and she had no thenar atrophy, a negative
Tinel’s and Phalen’s sign and nonphysiological sensory and motor findings. Dr. Krieger
determined that she required no additional medical treatment and could return to her regular
employment full time without any physical restrictions.
In reports dated July 10 and August 12, 2008, Dr. Filippone stated that he obtained follow
up diagnostic studies of appellant’s upper extremities on March 18, 2008 which showed sensory
NCS evidence of bilateral carpal tunnel syndrome, on the right more than the left. There was
also evidence of cervical radiculopathy. Dr. Weiss Lawrence, a Board-certified orthopedic
surgeon, noted that appellant was under the care of Dr. Teofilo A. Dauhajre, an orthopedic
2

OWCP did not accept appellant’s claim for cervical radiculopathy. For conditions not accepted as causally
related to her federal employment, she retains the burden of proof. See George H. Clark, 56 ECAB 162 (2004).
3

The record reflects that OWCP authorized surgery for appellant’s carpal tunnel syndrome which she declined.

4

At the time of the referral to Dr. Krieger, OWCP found a conflict in medical opinion between Dr. Filippone, for
appellant, and Dr. Joseph Mormino, a Board-certified orthopedic surgeon, who provided a second opinion report on
November 28, 2006.

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surgeon, as to the carpal tunnel syndrome and that he intended to operate on her left wrist for a
double crush syndrome. Dr. Filippone attributed her condition to her work duties and advised
that she was unable to work in any capacity. Appellant’s medical condition was unchanged and
she was not able to work since April 2005. Dr. Filippone stated that she exhibited positive
bilateral Tinel’s and Phalen’s signs.5
In reports dated October 17, 2009 to March 31, 2010, Dr. Dauhajre, a treating orthopedic
surgeon, diagnosed bilateral carpal tunnel syndrome, double crush syndrome of the left upper
extremity and evidence of left C5-6 cervical radiculopathy supported by the EMG and NCS of
the upper extremities. He recommended bilateral carpal tunnel release. The record reflects that
appellant declined surgery.
On March 30, 2010 OWCP referred appellant, together with a statement of accepted facts
and medical record, to Dr. Weiss for an impartial referee examination to resolve the conflict
between Dr. Filippone and Dr. Krieger.6 In a May 20, 2010 report, Dr. Weiss provided a review
of her employment activities and medical treatment, reviewed the diagnostic studies of record
and provided findings on physical examination. He noted that appellant, right hand dominant,
was hired as a mail handler on October 29, 1994 and last worked in 2005. Appellant performed
distribution work and noticed swelling with pain in her wrists and hands. Diagnostic testing was
obtained that was suggestive of mild bilateral carpal tunnel syndrome with no evidence of
cervical radiculopathy. Appellant was treated conservatively by Dr. Filippone, who found her
disabled for work. On examination, she complained of pain from her neck into both shoulders
down her arms and into both hands. Dr. Weiss found full cervical, shoulder, wrist, digit and
thumb range of motion bilaterally with no muscle spasm or discomfort and no obvious deformity
of the spine. On Spurling’s test, appellant reported sensation into both arms but not in a specific
dermatomal distribution. There was full and equal strength at the biceps, triceps, wrist extensors,
finger flexors and hand intrinsics; reflexes were 2+ and symmetric; and sensation grossly intact
in all dermatomes and peripheral nerve distributions. Tinel’s sign was negative at the cubital
tunnels bilaterally; radial tunnel was nontender; and no evidence of medial or lateral
epicondylitis or of biceps or triceps tendinitis. There was no crepitus, effusion or instability or
evidence of swelling or atrophy about the arms. Dr. Weiss reported no evidence of a ganglion
cyst, thenar atrophy or radiating symptoms into the median nerve distribution.
Dr. Weiss diagnosed subjective right and left upper extremity pain and occupational
report of bilateral carpal tunnel syndrome. He stated that appellant presented with varying and
subjective pain complaints throughout her upper extremities from her neck towards her fingers
bilaterally. Dr. Weiss stated that her symptoms were unrelated to any obvious structural
5

Dr. Filippone subsequently reported that diagnostic testing of August 31, 2009 also showed abnormal
prolongation of the medial motor terminal latency in both wrists and supported bilateral carpal tunnel syndrome. He
reiterated that appellant was totally disabled due to her accepted condition.
6

The Board notes that the record contains iFECs screenshots of the selection of Dr. Weiss as the impartial
medical specialist under the Physician Directory System. The record also contained a bypass form indicating that no
qualified physicians were available in appellant’s zip code. A search was conducted in a different zip code area
where Dr. Weiss was selected as the IME and an appointment was scheduled. An ME023 appointment schedule
notification was also included documenting appellant’s referral to Dr. Weiss. The record did not contain any bypass
forms which showed other orthopedic surgeons were bypassed for selection as an impartial medical specialist
because of unavailability.

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abnormality by history or physical examination. He stated that appellant’s ongoing symptoms
were unrelated to her work history and unrelated to the diagnosis of carpal tunnel syndrome.
Dr. Weiss also stated that there was also no active evidence of cervical radiculopathy pattern to
explain her symptoms.
Dr. Weiss stated that, at the time appellant was working for the employing establishment,
her EMG findings showed borderline carpal tunnel syndrome for approximately four years until
the August 31, 2009 EMG showed a difference by comparison to previous EMG testing. He
noted that although it had been suggested that she suffered from carpal tunnel syndrome, he did
not see active evidence based on physical examination and opined the diagnosis of carpal tunnel
syndrome was related to her subjective upper extremity complaints. Dr. Weiss noted that
appellant was recovered with respect to the work-related suggestion of carpal tunnel syndrome
and he did not find any ongoing active evidence to suggest medial nerve entrapment. He further
reported that the most recent EMG from 2009 showed more obvious alteration of her median and
sensory latencies that was unrelated towards her work activity and more related towards the
nature of median and/or sensory latencies, which could occur developmentally in the absence of
any occupational exposure. Thus, any characterization of alteration of median nerve findings by
EMG as of August 31, 2009 had occurred in a setting unrelated towards her work activities at the
employing establishment.
Dr. Weiss noted that the suggestions of appellant’s prior treating physicians for carpal
tunnel surgery were made based on reports of EMG alone without examination of history and/or
physical examination criteria that would be suggestive of “true” carpal tunnel syndrome.
Therefore, proposed carpal tunnel surgery would provide little to no benefit and could make
circumstances worse. Dr. Weiss concluded with a reasonable degree of medical certainty that
there was no active evidence of any ongoing occupational illness or need for medical restrictions.
He stated that any ongoing treatment of appellant’s upper extremity complaints was unrelated to
her history of work at the employing establishment.
OWCP submitted additional treatment records from Dr. Filippone to Dr. Weiss for his
review and comment. In an August 17, 2010 addendum, Dr. Weiss noted that his review of the
additional records failed to alter his prior opinion based on his May 20, 2010 medical
examination. He reiterated that he failed to identify any active evidence of ongoing occupational
illness as stated.
On September 10, 2010 OWCP notified appellant of its proposal to terminate her
compensation benefits based the opinion of Dr. Weiss. It noted that as the referee medical
examiner, he resolved the conflict in medical opinion between Dr. Krieger and Dr. Filippone.
Appellant was provided 30 days to submit additional information.
On September 21, 2010 appellant, through counsel, argued that Dr. Weiss’ report was not
sufficient to carry the weight of the medical evidence. He contended that it was contradictory
and provided insufficient reasons for his conclusion that the carpal tunnel syndrome diagnosis
was not conclusive. Appellant’s counsel argued that Dr. Weiss had an inaccurate factual
background and incorrectly believed that appellant only worked for the employing establishment
for three months when in fact she began her postal employment on October 29, 1994 until
January 28, 2005, for approximately 10 1/2 years. He concluded that Dr. Weiss failed to address
whether she could return to the repetitive nature of her mail handler duties.
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Appellant submitted additional reports dated November 10 to October 31, 2010 from
Dr. Filippone, including an October 26, 2010 NCS. Dr. Filippone reported that an upper
extremity NCS revealed abnormal prolongation of the right median motor terminal latency and
abnormal slowing of the calculated median sensory conduction velocities across the carpal canals
bilaterally. He stated that the needle EMG studies were abnormal, giving evidence of partial
denervation in muscles innervated by the left C5-6 cervical nerve roots and in the abductor
pollics brevis bilaterally. Dr. Filippone attributed the electrical abnormalities as the direct result
of injuries sustained by appellant while working at the employing establishment. Appellant
continued to be totally disabled.
On October 31, 2010 Dr. Filippone reviewed a copy of the reports by Dr. Weiss and
disagreed with his conclusion that there was “no active evidence of any ongoing occupational
illness and that no restrictions are offered at this time.” He noted that appellant worked as a mail
handler from 1994 until January 28, 2005. Over 10 years, appellant’s work involved strenuous
and repetitive activities that included lifting, pulling and pushing. Dr. Filippone noted that
Dr. Weiss incorrectly stated that she worked for the employing establishment for only three
months, which rendered an incorrect opinion that her condition was not related to her
employment. He further stated that appellant’s diagnosis of carpal tunnel syndrome had been
documented by EMG and NCS. Dr. Filippone diagnosed bilateral carpal tunnel syndrome and
cervical radiculopathy, noting that she required carpal tunnel surgical release. He reiterated that
appellant’s conditions were directly and solely the result of her employment-related injury.
By decision dated November 29, 2010, OWCP terminated appellant’s compensation
benefits effective November 30, 2010. It found that the weight of medical opinion rested with
Dr. Weiss.
By letter dated December 6, 2010 appellant, through counsel, requested a hearing before
the Branch of Hearings and Review. She submitted Form CA-20’s, prescription slips and reports
dated October 27, 2010 to August 31, 2011 from Dr. Filippone, who stated that she remained
totally disabled and would require right carpal tunnel release.
At the June 22, 2011 hearing, appellant’s counsel argued that Dr. Weiss’ report was
based on inaccurate medical and factual history. By letter dated July 19, 2011, he argued that
Dr. Filippone disagreed with the opinion of Dr. Weiss and submitted a June 29, 2011 report in
support of appellant’s claim. Dr. Filippone stated that he was responding to Dr. Weiss’
August 17, 2010 report. He stated that appellant’s last EMG and NCS of October 26, 2011 also
showed abnormalities consistent with left C5-6 cervical radiculopathy and bilateral carpal tunnel
syndrome. Dr. Filippone referenced that his April 15, 2005 medical report where he provided a
medical history and opined that her March 3, 2005 EMG revealed moderate bilateral carpal
tunnel syndrome, which Dr. Weiss referred to as milder bilateral carpal tunnel syndrome. The
July 6, 2005 EMG study showed electrical evidence of a left C5-6 cervical radiculopathy as
appellant’s symptoms persisted and developed, as well as bilateral carpal tunnel syndrome.
Dr. Filippone stated that Dr. Weiss’ opinion stated that “sensation is otherwise grossly intact in
all dermatomes and peripheral nerve distributions.” He disagreed with this statement.
Dr. Filippone cited as objective evidence the sensory NCS of July 6, 2005, which showed a right
median sensory conduction velocity slowing of 36.8 across the right carpal canal and the
corresponding left at 41.2 meters per second, whereas normal would be in excess of 48 meters
per second. He stated that no patient could fake this. Dr. Filippone noted that Dr. Weiss tapped
5

on the tip of appellant’s olecranon and stated that she reported “nonspecific complaints of pain
that goes down the hands bilaterally.” He explained that he should have tapped the olecranon
groove where the ulnar nerve was located rather than the top of the olecranon. Dr. Filippone
agreed with Dr. Weiss’ statement that appellant’s impression of right upper extremity pain was
subjective. He noted that her varying subjective complaints from the neck to her hands
bilaterally was consistent with her history and abnormal EMG/NCS studies. Dr. Filippone
further stated that appellant would benefit from carpal tunnel release surgery. He concluded that
his opinion and diagnoses were based on 85 percent history, 10 to 15 percent physical
examination and 5 to 10 percent testing in the form of EMG and NCS.
By decision dated September 7, 2011, the hearing representative affirmed the
November 29, 2010 decision. The hearing representative found that the weight of the medical
evidence rested with Dr. Weiss. The hearing representative further determined that the
additional reports from Dr. Filippone and Dr. Dauhajre did not shift the weight of medical
opinion or create a new conflict.
By letter dated September 15, 2011, appellant, through counsel, requested
reconsideration. Counsel contended that Dr. Filippone had provided abundant medical reasoning
for his stated conclusion that she continued to have residuals of her employment-related carpal
tunnel syndrome. He submitted CA-17 forms dated August 31, 2011 to February 2, 2012 from
Dr. Filippone, who advised that appellant was in need of carpal tunnel surgical release and
continued to be totally disabled. In a November 9, 2011 report, Dr. Filippone stated that she
experienced continued cervical pain with radiation to the left, more so than the right upper
extremity, especially when laterally flexing the neck to the left. He noted increasing numbness
and tingling radiating down into the left ring and fifth finger, volar aspect with intermittent neck
pain. Both hands continued with numbness into the distal volar aspect of all 10 fingers.
Dr. Filippone stated that appellant continued to demonstrate a bilaterally positive Tinel’s and
Phalen’s sign and noted a positive Tinel’s sign over the left ulnar nerve at the olecranon groove.
He concluded that he would order upper extremity EMG and NCS because of the progression of
the carpal tunnel syndrome presentation.
By decision dated March 6, 2012, OWCP affirmed the September 7, 2011 decision. It
accorded the weight of medical opinion to Dr. Weiss as the impartial medical examiner.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.8

7

Bernadine P. Taylor, 54 ECAB 342 (2003).

8

Id.

6

The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.9 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.10 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.11
When there are opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist, the opinion of such physician will be given
special weight if sufficiently well rationalized and based upon a proper factual and medical
background.12
ANALYSIS
OWCP accepted that appellant developed bilateral carpal tunnel syndrome due to factors
of her federal employment as a mail handler. It terminated her compensation benefits as of
November 29, 2010 based on the report of Dr. Weiss, the impartial medical specialist. The
Board finds that OWCP met its burden of proof.
OWCP initially terminated appellant’s compensation benefits effective December 21,
2008 on the grounds that the weight of the medical evidence rested with Dr. Krieger. By
decision dated July 23, 2009, an OWCP hearing representative reversed the termination, finding
that Dr. Krieger’s status was that of a second opinion specialist and not an impartial medical
referee. Appellant’s compensation benefits were restored and the case returned with directions
to refer her to an impartial medical specialist based on a conflict in medical opinion between
Dr. Filippone and Dr. Krieger. The referee was asked to determine whether she had disabling
residuals of her accepted bilateral carpal tunnel syndrome.
On remand, OWCP referred appellant to Dr. Weiss for an impartial medical examination.
In a May 20, 2010 report, Dr. Weiss correctly noted that she had been employed as a mail
handler from 1994 until 2005 doing distribution work, which included loading and unloading
mail and utilizing a pallet jack. At times, lifting involved up to 75 pounds with the assistance of
the pallet jack. Appellant reported no use of vibration tools and denied any direct trauma to her
wrists when the symptoms began. Dr. Weiss reported that she had worked as a mail handler for
three months when she first noticed swelling and pain involving her wrists and hands. He set
forth a review of appellant’s accepted condition and her medical treatment commencing 2004.
Dr. Weiss described the diagnostic studies of record, which originally suggested ganglion cysts
involving her wrist and a left cervical strain. This was subsequently modified as suggesting
carpal tunnel syndrome. Dr. Weiss noted that the March 3, 2005 EMG of Okja Kim, M.D., was
suggestive of mild bilateral carpal tunnel syndrome with no evidence of cervical radiculopathy.
9

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

10

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

11

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

12

See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006); Bryan O. Crane, 56 ECAB
713 (2005).

7

He reviewed appellant’s treatment by Dr. Filippone, who also obtained diagnostic studies.
Appellant was also examined by Dr. Krieger, whose reports were reviewed.
Dr. Weiss noted subjective complaints throughout appellant’s upper extremities that he
stated were unrelated to any obvious structural abnormality by history or physical examination.
He noted that she reported symptoms from her neck bilaterally into her arms that did not follow a
specific dermatomal distribution. Dr. Weiss set forth findings on physical examination, noting
full range of motion with nonspecific discomfort through range of motion. There was no focal
swelling of either wrist and full range of motion. No evidence of a ganglion cyst; with various
tests reported negative. Appellant described pain in the dorsal and volar aspects of her hands
from the mid-forearm down to her fingers without a specific point of maximal tenderness. There
was preserved thenar strength; no evidence of atrophy and no radiating symptoms into the
median nerve distribution. Median nerve compression testing was also negative.
Dr. Weiss found that appellant’s ongoing complaints were unrelated to her history of
work at the employing establishment or to any diagnosis of carpal tunnel syndrome that had
previously been made. He also founds that there was no active evidence of cervical
radiculopathy to explain her symptoms. Dr. Weiss stated that diagnostic studies were borderline
for carpal tunnel and remained so over a four-year period, until EMG testing in 2009. As to the
diagnosis of carpal tunnel, he noted that he did not find any active evidence based on the
physical examination and her history was inconclusive. Dr. Weiss found no active evidence of
median nerve entrapment and considered appellant to be recovered. He stated that the findings
of the 2009 EMG were related to the nature of median and/or sensory latencies, which can occur
developmentally in the absence of any occupational exposure. Dr. Weiss noted that the 2009
findings occurred in a setting unrelated to appellant’s work activities, as she had not worked
since 2005.
The Board finds that the opinion of Dr. Weiss is sufficient to resolve the conflict in
medical opinion as to whether appellant had ongoing residuals or disability causally related to
her accepted carpal tunnel syndrome. Dr. Weiss provided a thorough review of the accepted
claim, noted her employment activities and addressed the prior medical records and diagnostic
studies. He found that appellant’s condition had resolved by the time of his examination and
stated that she would not benefit from carpal tunnel release surgery, as proposed. Dr. Weiss
noted that she had no physical restrictions as her accepted condition had resolved and stated that
the ongoing medical treatment of her upper extremity complaints was unrelated to her work
history. The Board finds that the opinion of him is of special weight accorded to that of an
impartial medical referee.
The Board notes that the additional reports of Dr. Filippone, who was on one side of the
conflict in medical opinion, essentially repeated the physician’s belief that appellant had ongoing
residuals of her accepted carpal tunnel condition.13 Dr. Filippone provided several reports in
which he addressed additional diagnostic tests and stated that physical examination of her
supported the findings confirmed by EMG. He expressed his disagreement with the conclusions
reached by Dr. Weiss. Dr. Filippone did not believe that appellant’s physical findings were
negative and cited to EMG and NCS to support her occupational disability, stating that she
13

See Kathryn E. Demarsh, 56 ECAB 677 (2005). Special weight of medical opinion accorded an impartial
medical examiner over that of an attending physician who was on one side of the conflict.

8

would benefit from carpal tunnel release surgery. He reiterated in several reports that she had
employment-related bilateral carpal tunnel syndrome and cervical radiculopathy from which she
was totally disabled. Dr. Filippone stated that his opinion and diagnoses were based on 85
percent history, 10 to 15 percent physical examination and 5 to 10 percent testing in the form of
EMG and NCS. The Board finds that the reports from him are insufficient to overcome the
special weight accorded the opinion of Dr. Weiss as an impartial medical referee. The opinion
Dr. Filippone provided as to appellant’s ongoing disability due to residuals of her carpal tunnel
syndrome gave rise to the conflict in medical opinion with Dr. Krieger. His reports following the
examination by Dr. Weiss repeat his opinion on disability and residuals. They are not sufficient
to create a new conflict in medical opinion.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the March 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2013
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P, Appellant
and
DEPARTMENT OF THE AIR FORCE,
SHEPPARD AIR FORCE BASE, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1141
Issued: September 22, 2008

Case Submitted on the Record

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

JURISDICTION
On March 10, 2008 appellant timely appealed the February 21, 2008 nonmerit decision of
the Office of Workers’ Compensation Programs, which denied her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the only decision properly before the Board is
the Office’s February 21, 2008 nonmerit decision.1
ISSUE
The issue is whether the Office properly denied appellant’s February 1, 2008 request for
reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case was previously before the Board. Appellant, a 77-year-old former office
automation clerk, has an accepted claim for head contusion, left knee strain and left lateral
1

As discussed infra, the latest merit decision in the case was issued by the Board on January 25, 2008. Appellant
may request reconsideration before the Board, but there is not right to appeal a final Board decision. See 20 C.F.R.
§§ 501.6, 501.7 (2008).

meniscus tear, which arose on December 15, 1995. Following her injury, appellant worked in a
light-duty capacity as an office automation clerk, with no decrease in pay. Appellant continued
to work in this capacity until she resigned effective August 22, 1997. On November 17, 1997 the
Office found that appellant’s actual earnings as an office automation clerk beginning June 22,
1997 fairly and reasonably represented her wage-earning capacity. Because appellant’s actual
earnings equaled or exceed the adjusted wages of her date-of-injury position, she had no loss in
wage-earning capacity. As such, she was not entitled to receive wage-loss compensation. When
the case was last on appeal, the Board affirmed the Office’s March 8, 2007 decision denying
modification of the November 17, 1997 wage-earning capacity determination.2 The Board’s
latest decision, dated January 25, 2008, is incorporated herein by reference.3
On February 1, 2008 appellant requested reconsideration before the Office. She argued
that she did not voluntarily resign her position on August 22, 1997. Appellant also submitted
copies of standard form (SF) 50-B (notification of personnel action) and SF 52 (request for
personnel action) from March 1996 and August 1997.
In a decision dated February 21, 2008, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.4 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.5
Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
Appellant has argued on more than one occasion that her August 22, 1997 resignation
was either unintentional or coerced, but other than her repeated allegations, there is nothing in
the record to suggest that appellant’s August 22, 1997 resignation was involuntary or
unknowing. Her February 1, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, appellant
2

Modification of a wage-earning capacity determination is unwarranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was erroneous. Tamra McCauley, 51 ECAB 375, 377 (2000). The
burden of proof is on the party seeking modification. Id.
3

Docket No. 07-1388 (issued January 25, 2008).

4

5 U.S.C. § 8128(a) (2000).

5

20 C.F.R. § 10.606(b)(2).

6

20 C.F.R. § 10.608(b).

2

did not advance a relevant legal argument not previously considered by the Office. Therefore,
she is not entitled to a review of the merits of her claim based on the first and second abovenoted requirements under section 10.606(b)(2).7 Appellant also failed to satisfy the third
requirement under section 10.606(b)(2). She did not submit any relevant and pertinent new
evidence with her February 1, 2008 request for reconsideration. The record already included
ample evidence regarding the March 1996 and August 1997 personnel actions.8 Consequently,
appellant is not entitled to a review of the merits of her claim based on the third requirement
under section 10.606(b)(2).9
CONCLUSION
The Board finds that the Office properly denied appellant’s February 1, 2008 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

20 C.F.R. § 10.606(b)(2)(i) and (ii).

8

Submitting additional evidence that repeats or duplicates information already in the record does not constitute a
basis for reopening a claim. James W. Scott, 55 ECAB 606, 608 n.4 (2004).
9

20 C.F.R. § 10.606(b)(2)(iii).

3