United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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Appearances:
William J. Nulsen, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0849
Issued: July 22, 2016

Case Submitted on the Record

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

JURISDICTION
On March 10, 2015 appellant, through counsel, filed a timely appeal from November 17
and December 11, 2014 merit decisions and a February 18, 2015 nonmerit decision of the Office
of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’
2
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.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.

Appellant timely requested an oral argument. By order dated April 1, 2016, the Board denied her request for an
oral argument finding that her arguments on appeal could adequately be addressed in a decision based on a review of
the case record. Docket No. 15-0849 (issued April 1, 2016).

ISSUES
The issues are: (1) whether appellant has established that her lumbar condition was
causally related to the accepted August 12, 2014 employment incident; and (2) whether OWCP
properly denied further merit review of appellant’s case pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 19, 2014 appellant, then a 61-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on August 12, 2014 she sustained an injury to her back
when she lifted a flat sequencing system (FSS) tray. She stopped work on August 13, 2014 and
returned to light duty on August 18, 2014.
In an August 19, 2014 statement, Tyrone N. Tutko, the closing supervisor for the
employing establishment, explained that on August 12, 2014 appellant mentioned to him that she
had dropped to her knees when she tried to pick up a yellow FSS tray. He noted that he called
her later that night because he needed a rural carrier for Wednesday, but she informed him that
she could not work and was going to see a physician the next day.
Appellant was initially examined by Dr. Richard Slater, a Board-certified internist, who
provided duty status reports, CA-17 forms, dated August 20 and 29, 2014, which indicated that
on August 12, 2014 appellant injured her back when she picked up a yellow FFS tray. He noted
examination findings of lower left lumbar sciatica with left leg numbness and a diagnosis of
lumbar sprain. Appellant was advised not to return to work. In an August 21, 2014 employer
injury status report, Dr. Slater related a date of injury of August 12, 2014 and noted that
appellant had left sciatic notch. He authorized appellant to return to modified duty with
restrictions of no bending and no lifting more than 10 pounds.
On August 21, 2014 OWCP received a letter from Sean Cummings, appellant’s
supervisor, controverting appellant’s claim. Mr. Cummings related that when she returned from
completing her route on August 12, 2014 she informed him that she experienced pain when she
grabbed an FSS tray. When he asked appellant if she was okay, however, she replied that she
was not injured and refused medical treatment. Mr. Cummings described how over the
following days she informed management that she would not be at work until August 18, 2014,
and that she needed a Form CA-1. He related that since he transferred to the employing
establishment appellant had consistently complained of back pain. Mr. Cummings pointed out
that even though the alleged injury occurred around 8:00 a.m. on August 12, 2014 appellant was
able to complete her route on August 12 and 18, 2014.
By letter dated October 7, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit additional factual evidence to
demonstrate that the employment incident occurred as alleged and medical evidence to support
that she sustained a diagnosed condition as a result of the alleged incident. Appellant was
afforded 30 days to submit this evidence.
Appellant continued to receive medical treatment from Dr. Slater. In September 10
and 24, 2014 workers’ compensation follow-up notes, he reported a date of injury of August 13,

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2014 and related that appellant sustained a lower back injury. He provided examination findings
which are illegible and indicated that appellant returned to work on August 18, 2014. In duty
status reports dated September 10 to October 10, 2014, Dr. Slater related that on August 12, 2014
she injured her back when picking up a yellow FSS tray. He reported examination findings of
lower lumbar sciatica and left leg numbness and diagnosed lumbar strain. Appellant was advised
to resume modified duty on August 18, 2014. She also submitted physical therapy records dated
October 2 to 30, 2014.
On October 7, 2014 the employing establishment informed appellant via a letter that her
continuation of pay (COP) benefits had expired on September 26, 2014. It advised her that if she
wanted to continue to receive wage-loss compensation benefits she must file a (Form CA-7) at
the close of each pay period.
In an October 9, 2014 attending physician’s report (Form CA-20), Dr. Slater reiterated
that on August 12, 2014 appellant injured her low back when picking up a yellow FSS tray. He
indicated that she had a preexisting injury of scoliosis and facet joint degenerative changes.
Dr. Slater reported findings of left sacroiliac joint pain with numbness radiating to the left leg.
He diagnosed lumbar radiculitis. Dr. Slater checked a box marked “yes” that appellant’s
condition was caused or aggravated by an employment activity, but provided no explanation. He
described the medical treatment he provided and dates of examination. Dr. Slater indicated that
appellant could resume light work on August 18, 2014 with restrictions of no lifting more than
10 pounds, no bending and kneeling, and standing for only four to eight hours.
On October 17, 2014 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period September 27 to October 10, 2014.
By letter dated November 3, 2014, appellant described that on August 12, 2014 at 8:00
a.m. she picked up a tray of FSS flats, but the weight shifted and caused her to fall on her knees.
She related that she told Mr. Cummings right away, but he completely ignored her and never
offered medical attention. Appellant explained that she was able to finish her mail route and did
not feel any immediate effects, but she started to experience severe back pain when she returned
home. She noted that she first sought treatment on August 13, 2014 from Dr. Slater. Appellant
reported that she had experienced similar lower back pain on December 18, 2012. She
mentioned that her physician recommended that she work light duty beginning August 18, 2014
for two weeks, but the employing establishment ignored his orders.
In a decision dated November 17, 2014, OWCP denied appellant’s claim. It accepted
that the August 12, 2014 incident occurred as alleged and that she sustained a diagnosed back
condition, but denied her claim because the medical evidence failed to establish that her medical
condition was causally related to the accepted incident.
On December 1, 2014 OWCP received appellant’s request for reconsideration.
Appellant resubmitted Dr. Slater’s October 9, 2014 attending physician’s report (Form
CA-20) with revisions. He checked a box marked “yes” that her condition was caused or
aggravated by her employment and explained that her condition was aggravated by repetitive

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lifting of 35 pounds, truncal twisting while holding 35 pounds, and bending then lifting 35-pound
trays. Appellant also resubmitted the October 9, 2014 duty status report.
By decision dated December 11, 2014, OWCP denied modification of the November 17,
2014 decision.
On December 26, 2014 OWCP received appellant’s reconsideration request. Appellant
resubmitted Dr. Slater’s October 9, 2014 attending physician’s report and duty status reports
dated August 20 to October 8, 2014.
Appellant also provided October 23 and November 6, 2014 duty status reports by
Dr. Slater, which mentioned that on August 12, 2014 appellant strained her back when she
picked up a yellow FSS tray. He described clinical findings of left paralumbar pain and left
sciatic notch. Appellant was advised to return to modified duty on August 18, 2014.
In a decision dated February 18, 2015, OWCP denied further merit review of appellant’s
claim finding that her request did not meet any of the requirements warranting merit review
under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
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.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.9 An employee may establish that the

4

Supra note 1.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

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employment incident occurred as alleged, but fail to show that his or her disability or condition
relates to the employment incident.10
Whether an employee sustained an injury requires the submission of rationalized medical
opinion evidence.11 The opinion of the physician must be based on a complete factual and
medical background of the employee, 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.12 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.13
ANALYSIS -- ISSUE 1
Appellant alleged that on August 12, 2014 she sustained a back injury as a result of
lifting an FSS tray in the performance of duty. OWCP accepted that the August 12, 2014
incident occurred as alleged and that she was diagnosed with acute lumbar sprain and lumbar
radiculitis, but denied her claim finding that the medical evidence failed to establish that her
diagnosed medical condition was causally related to the August 12, 2014 employment incident.
The Board finds that appellant has not met her burden of proof to establish that her back
condition resulted from the accepted employment incident.
Dr. Slater treated appellant and completed an attending physician’s report dated
October 9, 2014. He noted that on August 12, 2014 she picked up a yellow FSS tray at work and
injured her low back. Dr. Slater related that appellant had a history of scoliosis and facet joint
degenerative changes in her lumbar spine. He reported examination findings and diagnosed
lumbar radiculitis. Dr. Slater checked a box marked “yes” that appellant’s condition was caused
or aggravated by an employment activity. He explained that the condition was aggravated by
repetitive lifting of 35 pounds, truncal twisting while holding 35 pounds, and bending then lifting
35-pound trays.
Although Dr. Slater noted a date of injury of August 12, 2014 and described a lifting
incident he also attributed appellant’s lumbar condition to her repetitive employment duties,
specifically lifting, twisting, and bending. The Board notes, however, that he failed to clearly
explain the causal relationship between her lumbar condition and the August 12, 2014
employment incident. Instead, Dr. Slater related the cause of appellant’s condition to both an
August 12, 2014 injury and to repetitive employment duties. The Board finds that because his
opinion is vague and equivocal on the issue of causal relationship it is of diminished probative
value and fails to establish her claim.14 The Board has held that in a traumatic injury claim a
10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

13

James Mack, 43 ECAB 321 (1991).

14

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

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physician must provide a narrative description of the identified employment incident and a
reasoned opinion on whether the employment incident described caused or contributed to
appellant’s diagnosed medical condition.15 Because Dr. Slater has not provided such a reasoned
opinion in this case, his report is insufficient to establish her claim.
Dr. Slater also provided several CA-17 form reports dated August 20 to November 6,
2014 and follow-up notes dated September 10 and 24, 2014, which indicated a date of injury of
August 12, 2014. Dr. Slater described that appellant strained her back when she picked up a
yellow FSS tray. He reported clinical findings of left paralumbar pain, lower lumbar sciatica,
left sciatic notch, and left leg numbness. Dr. Slater diagnosed lumbar strain. He indicated with
an affirmative mark that the diagnosed condition was caused by the described employment
incident. The Board has held, however, that when a physician’s opinion on causal relationship
consists only of checking a box marked “yes” to a form question, without more by way of
rationale, that opinion has little probative value and is insufficient to establish causal
relationship.16 These reports, therefore, also fail to establish appellant’s claim.
On appeal, appellant alleges that the attending physician’s report dated October 9, 2014
contained a rationalized medical opinion which established causal relationship. As found above,
however, Dr. Slater’s October 9, 2014 attending physician’s report is of diminished probative
value and fails to establish a causal relationship between appellant’s lumbar condition and the
August 12, 2014 employment incident. The issue of causal relationship is a medical question
that must be established by probative medical opinion from a physician.17 Because appellant did
not submit such probative medical evidence, she has failed to establish her claim.
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
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.18
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

15

John W. Montoya, 54 ECAB 306 (2003).

16

See T.C., Docket No. 15-1534 (issued March 1, 2016).

17

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, supra note 9.

18

5 U.S.C. § 8128(a).

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OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.19
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.20 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.21 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.22
ANALYSIS -- ISSUE 2
In decisions dated November 17 and December 11, 2014, OWCP denied appellant’s
traumatic injury claim finding that the evidence did not establish that her lumbar condition was
causally related to the accepted August 12, 2014 employment incident. On December 26, 2014 it
received her request for reconsideration. In a decision dated February 18, 2015, OWCP denied
further merit review pursuant to 5 U.S.C. § 8128(a). The Board finds that OWCP properly
refused to reopen appellant’s case for further consideration of the merits of her claim under 5
U.S.C. § 8128(a).
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law; she did not advance a relevant legal argument not previously
considered by OWCP; and she did not submit relevant and pertinent new evidence not previously
considered by OWCP.
Along with her reconsideration request, appellant provided additional medical reports,
including a September 24, 2014 workers’ compensation note and October 23 and November 6,
2014 duty status reports by unknown providers, which described the August 12, 2014
employment incident and her back symptoms. These reports do not constitute competent
medical evidence as it is unclear that they were prepared by physicians. Thus, they are not
relevant to the medical issue of whether appellant has established a lumbar condition causally
related to the August 12, 2014 employment incident.23 She also submitted an August 29, 2014
injury status note by Dr. Slater, which noted the August 12, 2014 date of injury and
recommended that she return to modified duty. Although this medical report was not previously
considered by OWCP, it is substantially similar and duplicative of evidence previously
considered and reviewed by OWCP. This medical report merely referenced the date of injury
and described examination findings, as had previously submitted medical reports. The Board has
held that evidence or argument that repeats or duplicates evidence previously of record has no
19

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 081569 (issued December 9, 2008).
20

Id. at § 10.607(a).

21

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

22

Id. at § 10.608(b)(3); E.R., Docket No. 09-1655 (issued March 18, 2010).

23

See N.D., Docket No. 15-0027 (issued February 4, 2016); Merton J. Sills, 39 ECAB 572 (1988).

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evidentiary value and does not constitute a basis for reopening a case.24 As these medical reports
do not constitute relevant new evidence, the Board finds that OWCP properly refused to reopen
appellant’s case for further consideration of the merits of her claim under 5 U.S.C. § 8128(a).
The Board finds that as appellant did not meet any of the necessary requirements for
further consideration of the merits of her claim under 5 U.S.C. § 8128(a), OWCP properly
denied further merit review of appellant’s traumatic injury claim.
CONCLUSION
The Board finds that appellant has failed to establish that her lumbar condition was
causally related to the August 12, 2014 employment incident. The Board further finds that
OWCP properly denied further merit review of her case pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 11 and November 17, 2014 merit
decisions and a February 18, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs are affirmed.
Issued: July 22, 2016
Washington, DC

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

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

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

24

E.M., Docket No. 09-39 (issued March 3, 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Battle Creek, MI, Employer
__________________________________________

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

Docket No. 18-0885
Issued: November 29, 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 March 20, 2018 appellant, through counsel, filed a timely appeal from a February 7,
2018 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 to consider the merits of the case.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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 7, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, thereby warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On April 5, 2012 appellant filed a Form CA-1 alleging that, on April 4, 2012, he injured
his right shoulder and neck area when lifting and moving a dresser. OWCP assigned that claim
OWCP File No. xxxxxx651 and on November 28, 2012 accepted it for aggravation of multilevel
cervical disc and L4-5 herniation with radiculopathy.5
Appellant retired from the employing establishment on June 14, 2013. He elected to
receive benefits from the Office of Personnel Management, effective June 14, 2013.
In a letter dated July 1, 2014, OWCP proposed to terminate appellant’s entitlement to
wage-loss compensation and medical benefits due to his April 4, 2012 employment injury as it
found the weight of the medical evidence established that his work-related condition of
aggravation of multilevel cervical disc disease and herniation at C4-5 with radiculopathy had
resolved. By decision dated August 21, 2014, it terminated his wage-loss compensation and
medical benefits, effective that date.
On August 5, 2014 Dr. Burkhardt noted that appellant was involved in a motor vehicle
accident on July 8, 2014. He diagnosed cervical degenerative disc disease and bilateral moderate
carpal tunnel syndrome. In a note dated April 22, 2015, Dr. Burkhardt opined that appellant had
reached maximum medical improvement. Appellant filed a schedule award claim (Form CA-7)
on September 4, 2015 under OWCP File No. xxxxxx735.
Appellant filed a schedule award claim (Form CA-7) on September 28, 2015 under OWCP
File No. xxxxxx651.
By development letters dated September 29, 2015, OWCP informed appellant that the
evidence of record was insufficient to establish his claims. It requested additional medical

4

Docket No. 17-0903 (issued October 10, 2017).

5

Appellant has filed other claims with OWCP. On December 22, 2006 appellant, then a 50-year-old housekeeping
aid, filed a traumatic injury claim (Form CA-1) alleging that, while at work on December 19, 2006, he pulled a back
muscle in his left upper back when he had to suddenly stop a cart which was about to hit a patient. OWCP assigned
the claim File No. xxxxxx864, and accepted it as a short form closure. Appellant filed a second Form CA-1 on
August 5, 2008 alleging that on June 24, 2008 he was attacked from behind by a patient at work resulting in pulled
muscles in his back and shoulder. OWCP assigned that claim File No. xxxxxx599, and on September 18, 2008,
accepted it for right shoulder supraspinatus strain and cervical strain. On August 20, 2011 appellant filed a Form CA1 traumatic injury claim alleging that he sustained back and shoulder pain on August 17, 2011 when lifting bags of
soiled linen at work. OWCP assigned that claim OWCP File No. xxxxxx735 and on March 20, 2012 accepted it for
right trapezius strain.

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evidence addressing his permanent impairment for schedule award purposes and afforded
appellant 30 days to respond.
In a note dated October 15, 2015, Dr. Burkhardt opined that appellant’s trapezius strain
had resolved and noted that he did not conduct impairment ratings. He recommended that
appellant be referred to physicians who performed those evaluations for both of his upper
extremity and cervical conditions.
By decision dated November 2, 2015, under OWCP File No. xxxxxx735, OWCP denied
appellant’s claim for a schedule award due to his accepted right trapezius strain based on
Dr. Burkhardt’s report that appellant’s condition had resolved. On November 10, 2015 counsel
requested an oral hearing before an OWCP hearing representative.
By decision dated November 5, 2015, under OWCP File No. xxxxxx651, OWCP denied
appellant’s claim for a schedule award due to his accepted condition of aggravation of multilevel
cervical disc disease and disc herniation at C4-5 with radiculopathy as the medical evidence did
not establish permanent impairment to a scheduled member.
Appellant through counsel requested an oral hearing before an OWCP hearing
representative with regard to OWCP File No. xxxxxx735 by letter dated November 10, 2015 and
received on November 17, 2015.
Appellant, through counsel, requested an oral hearing before an OWCP hearing
representative with regard to OWCP File No. xxxxxx651 by letter dated and received on
November 17, 2015.
A hearing was held on June 29, 2016 with regard to OWCP File No. xxxxxx735. Appellant
testified during that hearing that his motor vehicle accident resulted in a lower back condition and
that the accident had no effect on his accepted right trapezius strain.
A hearing was held on July 14, 2016 regarding OWCP File No. xxxxxx651. Appellant
testified during that hearing that his cervical condition resulted in symptoms in his arms.
By decision dated September 9, 2016, under OWCP File No. xxxxxx735, OWCP’s hearing
representative found that Dr. Burkhardt’s report established that appellant’s accepted right
shoulder condition had resolved until his automobile accident on July 8, 2014. He determined that
appellant did not have a permanent impairment of his right shoulder causally related to his
August 17, 2011 employment injury.
By decision dated September 28, 2016, under OWCP File No. xxxxxx651, OWCP’s
hearing representative found that appellant had not submitted the necessary medical evidence to
establish permanent impairment of a scheduled member warranting a schedule award in regard to
his accepted condition of aggravation of multilevel cervical disc disease and disc herniation at C45 with radiculopathy.
On June 20, 2016 Dr. Michael D. Kasten, a Board-certified orthopedic surgeon, examined
appellant and diagnosed multilevel cervical degeneration, radiculopathy, and possibly myelopathy.
Appellant underwent cervical electromyograph and nerve conduction velocity (EMG/NCV)
testing on August 4, 2016 which demonstrated mild median nerve compression at both wrists.
3

Dr. Burkhardt examined appellant on October 12, 2016 and diagnosed cervical myelopathy,
herniated cervical disc, and neck pain.
On September 8, 2016 Dr. Neil Allen, a Board-certified neurologist, examined appellant
to determine his percentage of permanent impairment for schedule award purposes. He mentioned
the employment injury of April 4, 2012, but described the June 24, 2008 employment injury during
which appellant was assaulted by a patron, further noting that he lost his balance and fell forward,
striking his chin against the floor, jerking his head and neck backward. Dr. Allen opined that
appellant sustained a cervical spine injury with pain and numbness extending into both hands and
difficulty swallowing. He provided his findings on grade modifiers of functional history, three;
and clinical studies, two. Dr. Allen applied appellant’s impairment based on the spinal nerve
impairment in The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth
Edition (July /August 2009) (The Guides Newsletter) for mild motor deficit of C6 and C7. He
applied the net adjustment formula and determined that appellant had nine percent permanent
impairment due to motor impairment of C6, and nine percent permanent impairment due to motor
impairment of C7. Dr. Allen found that appellant had 18 percent permanent motor impairment of
the upper extremities based on the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).
On November 15, 2016 appellant, through counsel, requested reconsideration of the
September 28, 2016 OWCP decision under OWCP File No. xxxxxx651.
By decision dated February 9, 2017, OWCP reviewed the merits of appellant’s claim and
found that he had submitted insufficient medical evidence to establish permanent impairment of
his upper extremities warranting a schedule award. It found that Dr. Allen had not attributed
appellant’s current permanent impairment to the accepted employment injury of April 4, 2012.
OWCP found that Dr. Allen’s report was not based on an accurate history of injury and was
insufficient to meet appellant’s burden of proof to establish permanent impairment as a result of
his accepted employment injury.
Appellant, through counsel, appealed to the Board. By decision dated October 10, 2017,
the Board set aside the February 9, 2017 decision and directed OWCP to administratively combine
his files regarding his previous cervical injuries, evaluate his schedule award claim, and issue a
de novo decision.6
Following the Board’s decision, OWCP administratively combined OWCP File Nos.
xxxxxx864, xxxxxx599, xxxxxx651, and xxxxxx735 with OWCP File No. xxxxxx735 serving as
the master file.
In a letter dated February 1, 2018, it advised appellant that his claim under OWCP File No.
xxxxxx651 was accepted for displacement of cervical intervertebral disc without myelopathy, and
in further consideration of his schedule award claim, it requested a detailed narrative medical
report regarding permanent impairment in accordance with the sixth edition of the A.M.A., Guides.
OWCP afforded appellant 30 days to respond.

6

Supra note 4.

4

By decision dated February 7, 2018, OWCP reviewed the medical evidence and denied
appellant’s claim for a schedule award under OWCP File No. xxxxxx651, finding that the medical
evidence of record was insufficient to establish his claim.
LEGAL PRECEDENT
Section 8107 of FECA7 and section 10.404 of the implementing federal regulations,8
provide for payment for permanent impairment of specified members, functions, and organs of the
body. FECA, however, does not specify the manner in which the percentage loss of a member
shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, good administrative practice necessitates the use of a single set of tables so that there
may be uniform standards applicable to all claimants. The A.M.A., Guides, has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.9 For new
decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.10
Neither FECA nor its implementing regulations provide for the payment of a schedule for
the permanent loss of use of the back/spine or the body as a whole.11 However, a schedule award
is permissible where the employment-related spinal condition affects the upper and/or lower
extremities.12 The sixth edition of the A.M.A., Guides does not provide a separate mechanism for
rating spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such
as federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.13 For peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP procedures provide that The Guides Newsletter (July/
August 2009) is to be applied as provided in section 3.700 of its procedures.14 Specifically, it will
rate upper extremity impairment originating in the spine through Table 15-14.15
The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment method of
determining the percentage of permanent impairment. In addressing upper extremity impairments,
the sixth edition requires identifying the impairment class for the diagnosed condition (CDX),
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

F.S., Docket No. 18-0383 (issued August 22, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013, March 2017); Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
11

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); F.S., id; W.D., Docket No. 10-0274 (issued September 3,
2010); Ernest P. Govednick, 27 ECAB 77 (1975).
12

W.D., id.; Rozella L. Skinner, 37 ECAB 398 (1986).

13

Supra note 10 at Chapter 2.808.5(c)(3) (March 2017).

14

FECA Transmittal No. 10-0004 (issued January 9, 2010); supra note 5 at Chapter 3.700, at Exhibit 4
(January 2010).
15

A.M.A., Guides, 425, Table 15-14.

5

which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS). The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).16
ANALYSIS
The Board finds that this case is not in posture for a decision.
The record contains a detailed report from Dr. Allen dated September 8, 2016 addressing
appellant’s percentage of upper extremity permanent impairment and describing the incident in
which he was attacked from behind by a patient at work, resulting in right shoulder supraspinatus
strain and cervical strain. OWCP found in its February 7, 2018 decision that Dr. Allen’s
description of the employment incident was inaccurate as he used the date of April 4, 2012 as the
date of injury when the attack by a patient actually occurred on June 24, 2008. It accepted under
OWCP File No. xxxxxx599 that that injury caused the accepted conditions of right shoulder
supraspinatus strain and cervical strain. As the cause of the injury and the resulting conditions
accepted by OWCP are no longer in dispute, the Board finds the discrepancy as to the date of
injury by Dr. Allen is harmless error as it relates to the present issue of extent of permanent
impairment.17
Dr. Allen noted that appellant was attacked by a patient and was pulled back. These are
the salient facts as presented on appellant’s claim form and medical treatment notes regarding the
accepted June 24, 2008 employment incident. While Dr. Allen also indicated that appellant
sustained a fall and blow to the chin, these additions do not negate appellant work-related history
of an attack and resulting injury. OWCP’s procedures require that if there is indication of
permanent impairment in the medical evidence the claims examiner should obtain an opinion from
the medical adviser or a second opinion evaluator.18 The Board finds that there are clear
indications within Dr. Allen’s report that appellant had permanent impairment of his upper
extremities as a result of his accepted conditions. Therefore, in keeping with its procedures,
OWCP should have obtained an opinion from a medical adviser or second opinion physician.19
On remand, OWCP should prepare a detailed statement of accepted facts, including all the
accepted upper extremity and cervical incidents and resulting injuries, and refer appellant for
further medical development to determine the nature and extent of permanent impairment, if any,
of his upper extremities as a result of his accepted conditions. After this and such other
development as OWCP deems necessary, it shall issue a de novo decision regarding whether he
has met his burden of proof to establish permanent impairment of his upper extremities warranting
schedule award compensation.

16

Id. at 411. F.S., supra note 9.

17

See M.M., Docket No. 07-1899 (issued October 2, 2008).

18

Supra note 10 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 2.0808.6c-d (March 2017).

19

Id.

6

CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: November 29, 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
__________________________________________
P.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROSEBURG VETERANS ADMINISTRATION
MEDICAL CENTER, Roseburg, OR, Employer
__________________________________________

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

Docket No. 20-0039
Issued: April 23, 2020

Case Submitted on the Record

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

JURISDICTION
On October 4, 2019 appellant filed a timely appeal from a July 15, 2019 merit decision and
a September 5, 2019 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 disability
from work for the period May 18, 2017 through March 30, 2018 due to his accepted February 29,
2016 employment injury; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 25, 2016 appellant, then a 66-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that on February 29, 2016 he sustained a low back and neck strain
when he slipped on, a liquid cleaning agent, and fell while in the performance of duty. He stopped
work on March 3, 2016 and returned on March 7, 2016.
In a February 27, 2017 duty status report (Form CA-17) and work capacity evaluation
(Form OWCP-5c), Dr. Deborah Madden, a family practitioner, noted clinical findings of severe
back pain radiating into legs. She diagnosed degenerative disc disease and lumbar sprain.
Dr. Madden checked a box marked “yes” indicating that appellant could return to work with
restrictions of sitting for six hours per day; lifting/carrying up to 10 pounds; standing, walking,
and pushing/pulling up to 10 pounds; and reaching above shoulder for one hour per day.
Appellant subsequently submitted medical evidence, including progress notes, emergency
department health records, procedure notes, physical therapy and respiratory treatment notes,
psychiatric reports, and social work notes dated from October 25, 2015. These notes set forth
records corresponding to the treatment he received for a multiplicity of conditions including
chronic pain syndrome, degenerative disc disease of the lumbar spine with radiculopathy, essential
hypertension, hyperlipidemia, peripheral neuropathy, restless leg syndrome, gastroesophageal
reflux disease, asthma-chronic obstructive pulmonary disease, bilateral knee osteoarthritis,
syncopal episodes of undetermined origin, transient ischemic attacks, major depression, and
anxiety.
On March 31, 2018 appellant retired from federal employment.
In a September 6, 2018 letter, B.S., a human resource specialist for the employing
establishment, requested a status update on appellant’s claim. He related that appellant had not
been able to work due to his workplace injury and other medical factors. B.S. also indicated that
appellant had since retired and was suffering a great financial hardship.
In an October 18, 2018 letter, Dr. Madden requested authorization for treatment secondary
to conditions causally related to a work-related injury. She recounted that on February 29, 2016
appellant sustained a slip and fall injury at work and was subsequently treated in the emergency
department on March 2 and 5, 2017 for cervical pain and worsening lumbar pain. Dr. Madden
indicated that since the February 29, 2016 work injury, treatment therapies included conservative
treatment of alternating heat and ice, pain clinic, lumbar epidural steroid injections, physical
therapy, and limited physical restrictions.
On October 29, 2018 OWCP accepted appellant’s claim for neck strain.2

2

In a separate decision of even date, OWCP denied appellant’s entitlement to continuation of pay for the period
March 1 to April 14, 2016 as the injury was not reported on a form approved by OWCP within 30 days following the
injury.

2

On December 21, 2018 appellant filed a wage-loss compensation claim (Form CA-7) for
leave without pay (LWOP) taken during the period May 18, 2017 through March 30, 2018.
In a December 31, 2018 development letter, OWCP advised appellant that the evidence
submitted was insufficient to establish total disability from May 18, 2017 through March 30, 2018
and requested that he submit additional evidence to establish that he was unable to work during
the period claimed due to his February 29, 2016 employment injury. It afforded him 30 days to
submit the necessary evidence.
In a May 22, 2019 letter, L.L., a human resource specialist for the employing
establishment, noted that she was providing additional information regarding appellant’s time off
work beginning May 18, 2017. She explained that he was on light duty when entered a LWOP
status and that the employing establishment was unable to place him for work within his medical
restrictions. L.L. noted that appellant voluntarily retired on March 31, 2018 and subsequently filed
the wage-loss compensation claim alleging total disability. She requested that OWCP review his
claim and reconsider its denial of payment.
By decision dated July 15, 2019, OWCP denied appellant’s claim for wage-loss
compensation for the period May 18, 2017 through March 30, 2018.
On July 26, 2019 appellant requested reconsideration.
In a July 26, 2019 letter, B.L., a human resource specialist for the employing establishment,
noted that on two occasions the employing establishment had mailed and uploaded into the
ECOMP system medical documentation regarding appellant’s lost wages and confirmed his status
as unemployable. She requested that OWCP fully review the evidence submitted and reconsider
his wage-loss compensation claim.
Appellant submitted additional medical evidence, including an October 23, 2017 hospital
emergency department progress note and an October 27, 2017 telephone call addendum by
Dr. Karen J. Alldredge, an emergency physician, regarding his complaints of chronic, severe back
pain with left-sided paresthesias.
By decision dated September 5, 2019, OWCP denied appellant’s
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

request for

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim by the preponderance of the evidence. 4 Under FECA the
term disability means incapacity, because of an employment injury, to earn the wages that the

3

Supra note 1.

4
M.C., Docket No. 18-0919 (issued October 18, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); see also
Nathaniel Milton, 37 ECAB 712 (1986).

3

employee was receiving at the time of injury. 5 For each period of disability claimed, the employee
has the burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.6 Whether a particular injury caused an employee to be disabled from
employment and the duration of that disability are medical issues which must be proven by the
preponderance of the reliable, probative, and substantial medical evidence. 7
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. 8
When an employee who is disabled from the job that he or she held when injured on
account of employment-related residuals returns to a limited-duty position, or the medical evidence
of record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish by the weight of the reliable, probative, and substantial evidence a
recurrence of total disability and to show that he or she cannot perform such limited-duty work.
As part of this burden of proof, the employee must show a change in the nature and extent of the
injury-related condition, a change in the nature and extent of the injury-related condition, or a
change in the nature and extent of the limited-duty job requirements. 9 This burden of proof
includes the necessary of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history that, for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. 10 Where no such rationale is present, the medical evidence is
of diminished probative value. 11
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
The record reflects that appellant was working in a modified-duty employment position on
March 7, 2016. He stopped work again on May 18, 2017 and subsequently filed a Form CA-7
claiming wage-loss compensation for total disability until March 31, 2018. OWCP also received
a May 22, 2019 letter from L.L., a human resource specialist for the employing establishment, who

5

A.S., Docket No. 17-2010 (issued October 12, 2018); S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB
746 (2004); 20 C.F.R. § 10.5(f).
6

K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

7

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291-92 (2001).

8

J.B., Docket No. 19-0715 (issued September 12, 2019).

9

S.F., Docket No. 19-1735 (issued March 12, 2020); J.B., Docket Nos. 18-1752, 19-0792 (issued May 6, 2019).

10

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

11

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

4

indicated that appellant was on light duty when he stopped work and that the employing
establishment was unable to provide work within his work restrictions.
The Board finds that, in this case, the factual evidence of record is insufficient to determine
whether appellant is claiming a recurrence of disability due to a withdrawal of his light-duty
position or because of a change in his accepted February 29, 2016 employment injury. 12 As noted
above, OWCP’s regulations allow for a claimant to establish a recurrence of disability under either
scenario.13 Accordingly, the evidence of record must be fully developed so that it contains accurate
information regarding appellant’s claim in order to determine whether he sustained a recurrence
of disability beginning May 18, 2017 because of a change of withdrawal of his limited-duty
assignment due to an employment injury or because of a change and worsening of his accepted
February 29, 2016 employment injury.14
On December 31, 2018 OWCP requested, in a development letter, that appellant provide
additional evidence regarding his wage-loss compensation claim for total disability. The Board
notes, however, that the employing establishment was not instructed to provide information
regarding whether the limited-duty employment position in which he worked was withdrawn or
modified during the period in which he has claimed wage-loss compensation. Although the
May 22, 2019 letter indicated that OWCP was unable to accommodate appellant’s work
restrictions, the letter did not establish the periods of time and duration of the employing
establishment’s inability to provide light-duty work, whether the light duty was due to an
employment injury, or the specific reason why the work was unavailable. 15
It is well established that, proceedings under FECA are not adversarial in nature and, while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. 16 Accurate information regarding whether
appellant’s limited-duty assignment was available beginning May 18, 2017 is essential to
determine whether he sustained a recurrence of total disability. 17 This evidence is of the character
normally obtained from the employing establishment and is more readily accessible to OWCP than
to him.18
On remand, OWCP shall request that the employing establishment furnish
documentation clarifying when appellant began to work modified duty and whether his modified-

12

See L.F., Docket No. 19-0519 (issued October 24, 2019); see also M.S., Docket No. 18-0130 (issued
September 17, 2018).
13

Supra notes 1 and 2.

14

See D.M., Docket No. 18-0527 (issued July 29, 2019); J.G., Docket No. 17-0910 (issued August 28, 2017); M.A.,
Docket No. 16-1602 (issued May 22, 2017).
15

See L.F., supra note 12.

16

M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018).

17

See K.T., Docket No. 17-0009 (issued October 8, 2019); Y.R., Docket No. 10-1589 (issued May 19, 2011).

18

J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

5

duty assignment was available or had been withdrawn, effective May 18, 2017. Following this
and other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision. 19
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 23, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

19

In light of the Board’s disposition of the first issue, the second issue is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cary, NC, Employer
__________________________________________

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Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0751
Issued: September 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 21, 2019 appellant, through counsel, filed a timely appeal from an October 11,
2018 merit decision and November 6 and December 17, 2018 nonmerit decisions of the Office of
Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.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 Board notes that following the December 17, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation, effective October 12, 2018, pursuant to 20 C.F.R. § 10.500(a) because
he refused a temporary, limited-duty assignment; and (2) whether OWCP properly denied
appellant’s October 18 and December 3, 2018 requests for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 21, 2016 appellant, then a 60-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 9, 2016 he strained his right shoulder when he picked up a
package weighing approximately 20 pounds while in the performance of duty. He stopped work
on April 14, 2016 and returned to limited duty on April 19, 2016. Appellant stopped work again
on July 9, 2016. On August 11, 2016 OWCP accepted his claim for right shoulder and arm strain.
It also authorized an October 18, 2016 right shoulder arthroscopic procedure. OWCP subsequently
expanded acceptance of appellant’s claim to include right shoulder adhesive capsulitis. It paid
wage-loss compensation for temporary total disability beginning July 9, 2016, and placed him on
the periodic rolls, effective November 12, 2017.
On April 11, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. William A. Somers, a Board-certified orthopedic surgeon,
for a second opinion examination to determine the status of his April 9, 2016 employment injury
and the extent of his disability. In a May 8, 2018 report, Dr. Somers indicated that he reviewed
appellant’s history, including a SOAF, and the medical record. He related appellant’s complaints
of pain about the anterior shoulder at the tenodesis site, primarily with activity. Upon examination
of appellant’s right shoulder, Dr. Somers observed tenderness in the region of the biceps tenodesis
and no tenderness in the distal clavicle, anterior glenohumeral joint, lateral rotator cuff region, or
posterior glenohumeral joint. He noted range of motion findings and reported discomfort at the
tenodesis site of the right biceps and some atrophy of the proximal biceps. Dr. Somers diagnosed
partial tear of the right rotator cuff, right biceps injury to the long head, rotator cuff tendinosis,
right acromioclavicular degenerative joint disease, right glenohumeral degenerative joint disease,
and right shoulder adhesive capsulitis.
Dr. Somers reported that appellant’s work-related injury had not resolved, but that his
prognosis was fairly good with proper treatment. He explained that appellant was not able to return
to full duty as a rural carrier due to restrictions with his right arm. Dr. Somers noted: “he would
be unable to do his casing and unable to carry the amount of weight required for certain packages.”
He completed a work capacity evaluation form (OWCP-5c), which noted restrictions of occasional
reaching above the shoulder, occasional pushing and pulling with the right arm up to 20 pounds,
occasional lifting with the right arm up to 10 pounds, and no climbing with the right arm.
Dr. Somers also required 15-minute breaks every 2 hours. He indicated that the work restrictions
were for the right arm only.
On May 29, 2018 the employing establishment provided appellant a written job offer as a
full-time modified rural carrier beginning May 29, 2018. The position was full time with an annual
salary of $76,666.00. The duties of the modified assignment were casing mail for route for two
hours, delivering priority and Express Mail for six hours, and authorized vehicle utilization system
2

(AVUS), update edit books, and prepare 3849’s for an indefinite period of time. The physical
requirements of the position included: lifting no greater than 10 pounds for the right arm only for
2 hours and 40 minutes, occasional reaching above the shoulder of the right arm for 2 hours and
40 minutes, and pushing/pulling no greater than 20 pounds with the right arm for 2 hours and 40
minutes.
On June 12, 2018 appellant refused the May 29, 2018 modified job offer due to medical
limitations.
In a letter dated June 20, 2018, OWCP requested that the employing establishment clarify
whether the job offer submitted was temporary or permanent.
By letter dated June 26, 2018, S.R., an employing establishment injury compensation
specialist, confirmed that the job offer was temporary.
On August 13, 2018 OWCP verified with the employing establishment that the modified
rural carrier position was still available.
On August 14, 2018 OWCP issued appellant a notice of proposed termination of his
compensation for wage loss in accordance with 20 C.F.R. § 10.500(a) based upon his refusal to
accept the May 29, 2018 temporary light-duty assignment. It noted that it had been advised that
he had refused to accept the job assignment offered by the employing establishment on
May 29, 2018. OWCP informed appellant that the modified job offer was within the work
restrictions provided by Dr. Somers in his May 8, 2018 second opinion report. It also informed
appellant of the provisions of 20 C.F.R. § 10.500(a) and further advised him that his entitlement
to wage-loss compensation would be terminated under this provision if he did not accept the
offered temporary assignment or provide a written explanation with justification for his refusal
within 30 days.
In a letter dated September 12, 2018, appellant, through counsel, asserted that appellant’s
refusal of the modified job offer was justified. She cited to Federal (FECA) Procedure Manual,
Chapter 2.814.3 and explained that OWCP must consider all medical conditions, including
preexisting conditions and those that arose afterwards, when determining whether an offer of
employment is suitable. Counsel asserted that medical reports submitted would establish that
appellant suffered from several conditions and disorders, which affected his ability to work.
OWCP received a July 3, 2018 report by Dr. Steve T. Kirk, a Board-certified neurologist,
who related that he had treated appellant since April 2015 for his history of anxiety, depression,
attention deficit, hyperactivity disorder, refractory insomnia, refractory rapid-eye movement
behavior disorder, and periodic limb movement disorder. Dr. Kirk indicated that the medications
prescribed to appellant caused extreme grogginess and rendered him unable to drive, function, and
focus.
Appellant also submitted a September 9, 2018 report by Dr. Chad Cox, a Board-certified
internist, who indicated that he had conducted an extensive review of appellant’s chart and
specialist notes. Dr. Cox opined that appellant would not be able to perform work of any kind
because he had “too many medical conditions with too many symptoms.” He noted that appellant
suffered from the following disorders: benign prostatic hyperplasia, chronic constipation and
gastroesophageal reflux disease, degenerative joint disease of multiple joints including neck and
3

low back, right inguinal hernia, mood disorders, sleep disorders, and other chronic neurocognitive
symptoms.
By decision dated October 11, 2018, OWCP terminated appellant’s wage-loss
compensation, effective October 12, 2018, pursuant to 20 C.F.R. § 10.500(a).
On October 18, 2018 appellant, through counsel, requested reconsideration. Appellant
resubmitted Dr. Kirk’s July 3, 2018 and Dr. Cox’s September 9, 2018 medical reports.
By decision dated November 6, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a). It found that his
reconsideration request neither raised substantive legal questions nor included new and relevance
evidence sufficient to warrant further merit review.
On December 3, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a November 16, 2018 report, Dr. Somers clarified that the May 8, 2018 OWCP-5c form
allowed for reaching above the shoulder for an occasional period of time, not to exceed 2 hours
and 40 minutes. He noted that the limited-duty job offer only required two hours of casing.
Dr. Somers further explained, however, that appellant’s job as a rural carrier required “hand/arm
elevation above chest high in order to deliver his mail. Therefore, the combination of casing and
delivery would exceed this time limit for hand above shoulder height allowed.” Dr. Somers
reported that appellant could case for 2 hours and deliver for 40 minutes or he could do no casing
and do his regular delivery. He indicated that the combined time for casing, delivery time, and
lifting/carrying could not exceed 2 hours and 40 minutes.
By decision dated December 17, 2018, OWCP denied further merit review of appellant’s
claim under 5 U.S.C. § 8128(a). It found that his reconsideration request neither raised substantive
legal questions nor included new and relevance evidence sufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s regulations at section 10.500(a) provide in relevant part:
“(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents [him
or her] from earning the wages earned before the work-related injury. For example,
an employee is not entitled to compensation for any wage loss claimed on a [Form]
CA-7 to the extent that evidence contemporaneous with the period claimed on a
[Form] CA-7 establishes that an employee had medical work restrictions in place;
that light duty within those work restrictions was available; and that the employee
was previously notified in writing that such duty was available. Similarly, an
employee receiving continuing periodic payments for disability was not prevented
from earning the wages earned before the work-related injury if the evidence
establishes that the employing [establishment] had offered, in accordance with

4

OWCP procedures, a temporary light-duty assignment within the employee’s work
restrictions.”4
When it is determined that an appellant is no longer totally disabled from work and is on
the periodic rolls, OWCP procedures provide that the claims examiner should evaluate whether
the evidence establishes that light-duty work was available within his or her restrictions. The
claims examiner should provide a pretermination or prereduction notice if appellant is being
removed from the periodic rolls.5 When the light-duty assignment either ends or is no longer
available, the claimant shall be returned to the periodic rolls if the medical evidence supports
continued disability.6
OWCP’s procedures further advise, “If there would have been wage loss if the claimant
had accepted the light-duty assignment, the claimant remains entitled to compensation benefits
based on the temporary actual earnings wage-earning capacity calculation (just as if he/she had
accepted the light-duty assignment).”7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective October 12, 2018, pursuant to 20 C.F.R. § 10.500(a), for refusing a
temporary limited-duty position.
OWCP found that the modified rural carrier position offered to appellant on May 29, 2018
was within appellant’s work restrictions as provided by Dr. Somers, the second opinion physician,
in his May 8, 2018 report. However, the Board finds that the employment duties and physical
requirements of the modified carrier position, as set forth by the employing establishment, did not
comply with Dr. Somers’ recommended work restrictions. In his May 8, 2018 report, Dr. Somers
advised that appellant was unable to return to full duty as a rural carrier because he would be
“unable to do his casing” and carry the required weight. He also provided work restrictions of
occasional lifting with the right arm up to 10 pounds and occasional pushing and pulling with the
right arm up to 20 pounds. The modified rural carrier position offered to appellant on May 29,
2018 required casing mail for two hours and delivering mail for six hours. Therefore, the Board
finds that the modified carrier requirements did not comply with Dr. Somers’ work restrictions,
which allowed for no casing. As the duties of the temporary light-duty assignment exceeded
appellant’s work restrictions as specified by Dr. Somers, the Board finds that OWCP has failed to
establish that appellant was capable of performing the May 29, 2018 job position.8 Thus, OWCP

4

20 C.F.R. § 10.500(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9c(1)(b)
(June 2013).
6

Id. at Chapter 2.814.9c(1)(d).

7

Id. at Chapter 2.814.9c(8).

8
See S.W., Docket No. 18-0857 (issued November 26, 2018); see also S.S., Docket No. 17-0557 (issued
December 21, 2017).

5

has not met its burden of proof to terminate wage-loss compensation pursuant to section
10.500(a).9
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation, effective October 12, 2018, pursuant to 20 C.F.R.
§ 10.500(a) because she refused a temporary, limited-duty assignment.
ORDER
IT IS HEREBY ORDERED THAT the October 11, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 3, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9
In light of the Board’s disposition of the merits of this case, the issue of whether OWCP properly denied
appellant’s requests for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a) is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 14-469
Issued: June 13, 2014

Case Submitted on the Record

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

JURISDICTION
On December 26, 2013 appellant filed a timely application for review from a
November 22, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration. Because more than 180 days elapsed from
April 3, 2013, the date of the most recent merit decision, to the filing of this appeal and pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of her claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen her claim for
further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 5, 2011 appellant, then a 49-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained shoulder, arm and neck pain and numbness as a
result of repetitive motions in casing and delivering mail. She first became aware of her
condition on March 28, 2011 and of its relationship to her employment on June 21, 2011.
Appellant stopped work on April 13, 2011.2 OWCP accepted her claim for right shoulder
tendinitis and a tear of the lateral meniscus of the left knee on October 4, 2011 and paid appellant
compensation for total disability beginning July 18, 2011.
In a work capacity evaluation dated November 30, 2011, Dr. Douglas Allen, a Boardcertified orthopedist, stated that appellant could return to work for eight hours per day with
restrictions of no more than eight hours of sitting, reaching, reaching above the shoulder,
operating a motor vehicle or repetitive movements of the wrist and elbow; no more than four
hours per day of twisting; no more than two hours per day of walking and standing; no more than
one hour per day of bending/stooping or pushing; and no pulling, lifting, squatting, kneeling or
climbing. On December 1, 2011 he stated that she could perform light sedentary work, with
restrictions of lifting no more than 10 pounds; occasional lifting and/or carrying of such articles
as dockets, ledgers and small tools; and a certain amount of standing and walking necessary to
carrying out job duties.3 In a report of work restrictions dated December 22, 2011, Dr. Gehron
Treme, a Board-certified orthopedist, stated that appellant could return to work on December 23,
2011 with restrictions of no lifting of more than 10 pounds, no pushing or pulling of more than
10 pounds, no lifting above the shoulder and no repetitive reaching or overhead activity.
The employing establishment offered appellant a position as a modified rural letter carrier
on December 16, 2011. The physical requirements of the modified assignment included sitting
for up to six hours intermittently, walking or standing for up to two hours intermittently,
reaching for up to two hours intermittently, reaching above the shoulder for less than eight hours
per day, twisting for less than one hour per day, bending/stooping for less than one hour per day,
operating a motor vehicle at work for less than eight hours per day, operating a motor vehicle to
and from work for less than eight hours per day, repetitive movements of the wrist and elbow for
less than eight hours per day and pushing for less than one hour per day. Appellant refused the
job offer on the same date, stating that she refused pending her physician’s approval on
December 22, 2011.
In a letter dated January 20, 2012, Dr. Joseph Aragon, Board-certified in the
subspecialties of cardiovascular disease and interventional cardiology, stated that appellant had
been instructed to stop work on April 13, 2011 and that she had not been released to return. In a
letter dated February 22, 2012, he stated that she was instructed not to work from July 18
through September 27, 2011 due to right shoulder tendinitis, cervical radiculitis and a meniscus
tear of the left knee.
2

Appellant’s Form CA-2 does not contain a date of work stoppage; however, in a later statement of accepted
facts, OWCP noted that appellant had stopped work on April 13, 2011.
3

Appellant continued to submit reports of work restrictions from Dr. Allen containing identical restrictions until
August 13, 2013, when he changed her restrictions to “medium work.”

2

On January 31, 2012 OWCP referred appellant to a second opinion physician for
assessment of her work-related condition. In a report dated March 22, 2012, Dr. Thomas Grace,
a Board-certified orthopedist, opined that she could not return to work with restrictions due to
her daytime use of narcotic medications, unless she has been released by her prescribing
physician. He stated that appellant should not return to work at all, in part due to her narcotic
medication and in part because she may have had a new meniscal tear or internal derangement of
her left knee. Dr. Grace noted that it was undetermined when she could return to work or how
long work restrictions would apply and that she had not reached a point of maximum medical
improvement. In a work capacity evaluation attached to his second opinion report, he stated that
appellant was not capable of performing her job with restrictions.
In a report dated March 9, 2012, Dr. Allen stated that appellant “will avoid working”
until he could image her back by magnetic resonance imaging scan. In a work capacity
evaluation dated April 12, 2012, he stated that she could return to work with restrictions of no
more than 2 hours of walking, 1 hour of squatting, 1.5 hours of climbing, no kneeling and 8
hours of sitting.
On May 1, 2012 OWCP sent Dr. Allen a copy of the second opinion report from
Dr. Grace. The report noted that, according to OWCP records, appellant had been released to
sedentary work. OWCP requested that Dr. Allen provide an updated narrative report on what
treatment was needed to return her to work and that he review the light-duty job offer made on
December 16, 2011 to determine whether it was within her restrictions. On May 22, 2012 it sent
another similar letter to Dr. Allen, enclosing Dr. Grace’s report and requesting that he address
whether appellant had injured her left knee again, whether her daytime narcotic medications
remained necessary and when he anticipated she would reach maximum medical improvement
and return to some type of work. Dr. Allen did not respond to OWCP’s inquiries.
On June 26, 2012 OWCP notified appellant of her entitlement to compensation benefits
and her responsibility to return to work in connection with her accepted injury. It placed her on
the periodic rolls starting July 1, 2012. The letter advised, “If you receive an offer of light or
limited duty from your agency, advise OWCP in writing of your decision either to accept or
refuse the position offered at the time you notify your agency. Refusal by a partially disabled
employee to seek, accept or continue suitable work is lawful grounds for the reduction or
termination of compensation.”
Dr. Allen continued to recommend that appellant could return to sedentary work in work
status forms dated July 10 and September 11, 2012.
OWCP informed appellant on October 2, 2012 that the medical evidence in her file
indicated that she was capable of working within certain physical limitations, but that because
the employing establishment had not identified a job meeting her work limitations, or indicated
that, such a job would be offered in the near future, her rehabilitation effort was to be moved to
vocational planning.
On October 15, 2012 OWCP requested that the employing establishment make an offer
of light-duty employment to appellant within her restrictions if possible.

3

The employing establishment offered appellant a position as a modified rural letter
carrier, casing and delivering mail and marking up her own route on October 22, 2012. The
physical requirements of the modified assignment included six to seven hours per day of
intermittent sitting, less than half an hour of intermittent walking with assistance available to
load, unload and perform parcel delivery; less than half an hour of intermittent standing per day;
five to five and one half hours of driving; and intermittent lifting and carrying of up to 10 pounds
with assistance available to load and unload parcels over 10 pounds. Appellant refused this
modified assignment on December 28, 2012, stating that her physician had her on a sedentary
status.
On February 22, 2013 OWCP sent a notice of proposed termination of compensation
benefits to appellant. It stated that, on December 1, 2011, Dr. Allen had released her to lightduty sedentary work. OWCP noted that appellant’s restrictions remained the same as of
February 1, 2013. It also noted that Dr. Mitchell Seemann, a Board-certified orthopedist, had
also released her to work with restrictions.4
Appellant responded to OWCP’s proposed termination of compensation on
March 5, 2013. She stated that she continued to have pain in her knee and that the modified
light-duty assignment was actually her regular job. Appellant also noted that she could not fulfill
the requirements of the position and stated that she had a follow-up appointment with Dr. Allen
on March 19, 2013. Dr. Allen’s report of March 19, 2013 recommended that she could perform
sedentary work.
By decision dated April 3, 2013, OWCP terminated appellant’s wage-loss compensation
benefits effective April 7, 2013 after finding that she had been released to work with restrictions
and refused a job offer within those restrictions. It noted that her physician had stated that she
could work within restrictions and found that she had not provided any evidence to support her
inability to perform the duties of the offered position.
In a work status report dated May 24, 2013, Dr. Allen stated that appellant could perform
sedentary work. In a narrative report of the same date, he diagnosed her with left
chondromalacia and recommended several procedures to treat her condition. On May 28, 2013
Dr. Allen stated that appellant had visited his office for a follow up on her left chondromalacia
patella and ordered a functional capacity evaluation. Appellant continued to submit progress
reports from him from May 22 through August 26, 2013, which were substantially similar and
did not contain recommendations for work restrictions. On August 13, 2013 Dr. Allen stated that
she could perform medium work, with restrictions of lifting no more than 50 pounds with
frequent lifting or carrying of objects weighing up to 25 pounds and that she had reached
maximum medical improvement on that date. Appellant also submitted several documents from
physical therapists, including a functional capacity evaluation and a reporting form further
detailing her work restrictions.
On September 17, 2013 appellant requested reconsideration. With her request for
reconsideration, she submitted work restrictions from Dr. Allen from September 11, 2012
4

OWCP did not provide a date for Dr. Seemann’s report and no physician by that name appears in the case
record.

4

through August 13, 2013. Dr. Allen indicated that appellant could not perform more than
sedentary work until his report of August 13, 2013.
In a decision dated November 22, 2013, OWCP denied appellant’s request for
reconsideration after finding that she had not submitted evidence or raised an argument sufficient
to warrant reopening her case for further merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), the
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.5 Section 10.608(b) of the regulations provide
that, when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.6
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.7 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.8
While the reopening of a case may be predicated 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.9
ANALYSIS
OWCP accepted that appellant sustained right shoulder tendinitis and a tear of the lateral
meniscus of the left knee due to duties of her federal employment on October 4, 2011. On
April 3, 2013 it terminated her compensation for wage-loss benefits effective April 7, 2013 after
finding that she had refused a suitable job offer that was within her medical restrictions. In a
decision dated November 22, 2013, OWCP denied appellant’s request for reconsideration.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her claim.
In her September 17, 2013 request for reconsideration, she did not establish that OWCP
erroneously applied or interpreted a specific point of law.
5

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

6

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

7

See Daniel Deparini, 44 ECAB 657, 659 (1993).

8

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
9

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

5

The relevant issue upon reconsideration was whether the offer of work dated October 22,
2012 was suitable and within appellant’s medical restrictions at that time.10 Appellant submitted
several reports regarding her work restrictions from Dr. Allen dated from September 11, 2012
through January 25, 2013, which were received by OWCP on October 23, 2013. A review of the
record indicates that these reports were before OWCP at the time of its April 3, 2013 decision.
Submitting additional evidence that repeats or duplicates information already in the record does
not constitute a basis for reopening a claim.11 Dr. Allen’s work status reports dated from
September 11, 2012 through January 25, 2013 were previously of record and were considered in
OWCP’s April 3, 2013 decision. Therefore, these reports were insufficient to require a merit
review of appellant’s claim.
Appellant submitted a work status report from Dr. Allen dated August 13, 2013, stating
that she could perform medium work, with restrictions of lifting no more than 50 pounds with
frequent lifting or carrying of objects weighing up to 25 pounds and that she had reached
maximum medical improvement on that date. While this report was not previously of record, it
is irrelevant to the grounds upon which OWCP denied her claim. It did not support appellant’s
claim that the offer of work dated October 22, 2012 was unsuitable and outside her work
restrictions; instead, it indicated that she was currently able to work under restrictions less
onerous than those previously recommended by Dr. Allen after December 1, 2011. Appellant
also submitted progress reports from Dr. Allen dated from May 28 through August 13, 2013.
While these reports stated that she had symptoms of left chondromalacia, they did not contain
any information regarding her work restrictions and therefore did not address the issue on which
OWCP’s decision was based. As such, these reports were not relevant and were insufficient to
warrant reopening the case for further merit review under section 8128(a).
Appellant submitted several reports from physical therapists, including a functional
capacity evaluation and a form further detailing her work restrictions. While this evidence was
not previously of record, it too is irrelevant to the grounds upon which OWCP denied her claim.
Physical therapists do not qualify as physicians under FECA and therefore their reports do not
qualify as probative medical evidence supportive of a claim for federal workers’ compensation,
unless such reports are countersigned by a physician.12 Neither, the functional capacity
evaluation or the reporting form were countersigned by a physician. Therefore, these reports are
of no probative value on the issue of whether the offer of work dated October 22, 2012 was
suitable and within appellant’s medical restrictions at that time. A claimant may be entitled to
merit review by submitting new and relevant evidence, but she did not submit any relevant
factual evidence in this case.
On appeal, appellant argues that the job offer from the employing establishment was not
suitable. As noted above, the Board does not have jurisdiction over the merits of this claim.
Consequently, the Board does not have jurisdiction to determine whether the job offer was

10

See 20 C.F.R. § 10.517.

11

See James W. Scott, 55 ECAB 606, 608 n.4 (2004); supra note 7.

12

See 5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000) (regarding physical therapists).

6

suitable. The Board only has jurisdiction to determine whether appellant met the requirements of
20 C.F.R. § 10.606(b)(3).
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7