United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 16-0884
Issued: September 8, 2016

Case Submitted on the Record

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

JURISDICTION
On March 23, 2016 appellant filed a timely appeal from a January 6, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish bilateral hip
osteoarthritis as a result of factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its January 6, 2016 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47
ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to OWCP,
together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On April 27, 2015 appellant, then a 62-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral hip arthritis as a result of his
federal employment duties. He reported that he was a letter carrier for 36 years and worked in
extreme cold, snow, rain, and heat reaching above 100 degrees for 10 to 12 hours a day, 6 days a
week. Appellant stopped work on February 14, 2015.
In a July 25, 2014 medical report, Dr. Kelly A. Martens, a Board-certified orthopedic
surgeon, performed a right hip fluoroscopic-guided injection.
In an August 22, 2014 medical report, Dr. Thorsten Sundberg, a Board-certified
diagnostic radiologist, performed a right hip fluoroscopic-guided injection.
In a March 11, 2015 operative report, Dr. Craig R. Faulks, a Board-certified orthopedic
surgeon, performed right hip total arthroplasty. He noted that an x-ray of the right hip showed
severe arthritis.
By letter dated May 13, 2015, OWCP informed appellant that the evidence of record was
insufficient to support his claim for bilateral hip arthritis. Appellant was advised of the medical
and factual evidence needed and was afforded 30 days to submit additional evidence. In another
letter of that same date, OWCP requested that the employing establishment provide further
information pertaining to appellant’s occupational disease claim.
In a May 11, 2015 disability certificate, Dr. Faulks reported that appellant was totally
incapacitated from May 11 through August 11, 2015.
In a May 26, 2015 report, Dr. Faulks reported that appellant presented after right hip total
arthroplasty on March 11, 2015. He noted left hip arthritis as well as intermittent symptoms
pertaining to the right knee. Dr. Faulks provided findings on physical examination and
diagnosed severe bilateral hip osteoarthritis and status post right hip total arthroplasty. He also
diagnosed partial right knee tear anterior cruciate ligament. Dr. Faulks reported that appellant’s
bilateral hip arthritis was likely aggravated by his work as a letter carrier for the employing
establishment. He noted that this could be considered an on-the-job injury or at least an
aggravation. Dr. Faulks concluded that appellant would eventually need a left hip total
arthroplasty and to follow up in two to three months.
By decision dated June 16, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the occupational exposure occurred as alleged. It noted
that appellant had failed to establish fact of injury because he did not respond to the
questionnaire provided in its May 13, 2015 development letter.
On July 13, 2015 appellant requested an oral hearing before an OWCP hearing
representative. In support of his claim, he resubmitted medical evidence previously of record.
A hearing was held on October 21, 2015 where appellant testified in support of his claim.
Appellant stated that his letter carrier duties required him to be on his feet 10 to 12 hours per day,
lift up to 70 pounds, carry up to 35 pounds, and step in and out of his truck. He explained that
2

his hip condition would improve when he was off work and worsen when returning to work. The
record was held open for 30 days.
In a November 17, 2015 medical report, Dr. Faulks reported that appellant underwent
right hip total arthroplasty on March 11, 2015 and returned with improvement, but continued to
experience pain in the left hip. He reported that appellant worked as a letter carrier since 1979.
Dr. Faulks diagnosed bilateral hip arthritis and noted that appellant would likely need left total
arthroplasty explaining that he did well after his right hip arthroplasty. He opined that his
bilateral hip arthritis was caused by his occupation which involved quite a bit of activity,
walking, and standing. Dr. Faulks concluded with a reasonable degree of medical certainty that
appellant’s condition was job related.
By decision dated January 6, 2016, OWCP’s hearing representative affirmed the June 16,
2015 decision, as modified, finding that appellant had established that the occupational exposure
occurred as alleged, but that the medical evidence failed to establish that his diagnosed condition
was causally related to his accepted federal employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 3.

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for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted that appellant engaged in repetitive activities in his employment duties
as a letter carrier. It denied his claim, however, as the evidence failed to establish a causal
relationship between those activities and his bilateral hip osteoarthritis. The Board finds that the
medical evidence currently of record is insufficient to establish that appellant developed bilateral
hip osteoarthritis causally related to factors of his federal employment as a letter carrier.
In the medical report dated May 26, 2015, Dr. Faulks reported that appellant underwent
right hip total arthroplasty on March 11, 2015. In this report, he diagnosed severe bilateral hip
osteoarthritis and status post right hip total arthroplasty. Dr. Faulks opined that appellant’s
bilateral hip osteoarthritis was likely aggravated by his work as a letter carrier and could be
considered an on-the-job injury, or at least an aggravation.
In his November 17, 2015 report, Dr. Faulks opined that appellant’s bilateral hip
osteoarthritis was caused by his work as a letter carrier since 1979, which involved quite a bit of
activity, walking, and standing. He concluded with a reasonable degree of medical certainty that
his condition was job related.
The Board finds that although Dr. Faulks supported causal relationship noting that
appellant’s employment duties likely aggravated his bilateral hip arthritis, he did not provide
medical rationale explaining the basis of his opinion.9 While Dr. Faulks noted that appellant’s
bilateral hip osteoarthritis was likely aggravated by his work as a letter carrier, he failed to
discuss whether his preexisting condition had progressed beyond what might be expected from

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

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

8

James Mack, 43 ECAB 321 (1991).

9

See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a solution which is unsupported by medical rationale).

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the natural progression of that condition.10 A well-rationalized opinion is particularly warranted
when there is a history of preexisting condition.11 Dr. Faulks’ opinion on causation is deficient
as he failed to explain why appellant’s current bilateral hip condition was not caused by a
preexisting degenerative arthritic condition.12
Dr. Faulks also explained in his notes that appellant’s employment as a letter carrier since
1979 involved quite a bit of activity, walking, and standing which caused his bilateral hip
osteoarthritis.13 Again, his medical opinion report is deficient as he only generally described
appellant’s work duties without a clear understanding of the number of hours per day spent
performing each task and the frequency of other physical movements which appellant attributes
to his injury. Without explaining how the movements involved in appellant’s employment duties
caused or contributed to his diagnosed condition, his opinion on causal relationship is deficient
as he failed to specifically address whether appellant’s employment activities had caused or
aggravated a medical condition.
Moreover, the medical opinion of Dr. Faulks is deficient as it is speculative and
equivocal,14 as he qualified his medical opinion by noting that this “could be” an on-the-job
injury and described an aggravations of injury as “likely.” As Dr. Faulks failed to provide a
definite and well-rationalized opinion that appellant’s bilateral hip osteoarthritis was caused or
aggravated by his occupational employment duties, his medical reports fail to establish that
appellant’s injuries are a result of a work-related occupational exposure.15
The remaining medical evidence is also insufficient to establish appellant’s claim. The
reports of Dr. Sundberg and Dr. Martens only note administering a right hip fluoroscopic guided
injection with no opinion on the cause of his injury or discussion of his federal employment
duties. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value.16 Thus, the reports of
Dr. Sundberg and Dr. Martens are insufficient to establish appellant’s occupational exposure
claim.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a letter carrier and his diagnosed
bilateral hip osteoarthritis. Thus, appellant has failed to meet his burden of proof.17
10

R.E., Docket No. 14-868 (issued September 24, 2014).

11

Supra note 9; Michael S. Mina, 57 ECAB 379 (2006).

12

P.O., Docket No. 14-1675 (issued December 3, 2015).

13

See Lee R. Haywood, 48 ECAB 145 (1996).

14

T.V., Docket No. 16-0656 (issued July 27, 2016) (medical opinions which are speculative or equivocal in nature
have little probative value).
15

S.R., Docket No. 12-1098 (issued September 19, 2012).

16

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

17

R.M., Docket No. 11-1921 (issued April 10, 2012).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish bilateral hip
osteoarthritis causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 6, 2016 is affirmed.
Issued: September 8, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0386
Issued: May 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 2, 2016 appellant, through counsel, filed a timely appeal from a July 5,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated April 15, 2015 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.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
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.

On appeal counsel contends that a merit review of the record was warranted as new
medical evidence and legal arguments were provided.
FACTUAL HISTORY
On May 29, 2014 appellant, then a 52-year-old postal carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 24, 2014 he sustained a left rotator cuff tear due to
slipping and falling on ice while in the performance of duty. He stopped work on May 1, 2014.
By correspondence dated June 30, 2014, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. Appellant was advised as to the medical and
factual evidence required and afforded 30 days to provide the requested information. He did not
respond within the time allotted.
By decision dated August 7, 2014, OWCP denied appellant’s claim. It accepted that the
February 24, 2014 incident occurred as alleged. However, OWCP denied the claim as there was
no medical evidence of record that diagnosed a medical condition causally related to the
accepted incident.
In a form dated September 2, 2014, appellant requested a telephone hearing before an
OWCP hearing representative which was held on March 10, 2015.
On October 6, 2014 OWCP received a March 1, 2014 report from Emily C. Crebo, a
certified nurse practitioner. Ms. Crebo provided a medical history, examination findings, and a
history of the injury. She reported that appellant had injured his shoulder when he slipped and
fell on ice at work five to seven days previously. Ms. Crebo diagnosed a left rotator cuff injury
and left anterior shoulder pain.
Subsequent to the March 10, 2015 hearing, OWCP received the following evidence.
In a March 18, 2014 report, Brandon R. Gale, a certified physician assistant, noted that
appellant was evaluated for complaints of bilateral shoulder pain. Appellant reported that he had
injured his left shoulder on February 25, 2014 when he slipped and fell on ice at work. A
physical examination revealed mildly positive impingement signs. Mr. Gale diagnosed bilateral
shoulder pain.
A May 1, 2014 hospital report indicated that appellant underwent left shoulder
arthroscopy for left shoulder rotator cuff tear and left shoulder biceps tenosynovitis.
In reports dated May 13 and June 6, 2014, Dr. Michael S. Merkley, a treating Boardcertified orthopedic surgeon, diagnosed left shoulder rotator cuff tear with biceps tenosynovitis.
In a March 31, 2015 report, he opined that appellant’s February 24, 2014 fall caused the
condition or aggravated a preexisting rotator cuff tear and need for surgical repair. In support of
his conclusion, Dr. Merkley explained that the mechanism of throwing his arms in the air while
falling was sufficient to aggravate a preexisting tear. As appellant had no symptoms prior to the
fall, he opined that the fall either caused the condition or aggravated a preexisting condition.
By decision dated April 15, 2015, the hearing representative affirmed the denial of
appellant’s claim. She found that the medical evidence of record was insufficient to establish
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causal relationship between the accepted February 24, 2014 employment incident and the
diagnosed medical condition. Furthermore, the hearing representative found Dr. Merkley’s
opinion to be speculative and insufficient to establish appellant’s claim.
In a June 4, 2015 report, Dr. Neil Allen, an examining Board-certified neurologist, noted
diagnoses of left shoulder and upper arm sprain and left acromioclavicular and provided an
impairment rating for those conditions. He reported that on February 24, 2014 appellant lost his
balance when he slipped while delivering mail and jerked his left arm up for balance. At this
point appellant related feeling immediate left shoulder pain.
On April 11, 2016 counsel requested reconsideration. He argued that the hearing
representative failed to provide the basis for the denial of the claim and that Dr. Merkley’s
reports were sufficient to establish appellant’s claim. Further, counsel contended that Dr. Allen’s
report was sufficient to establish appellant’s claim. He also resubmitted Dr. Merkley’s
March 31, 2015 report.
By decision dated July 5, 2016, OWCP denied reconsideration. It found Dr. Allen’s
report insufficient to warrant a merit review because it was an impairment rating and did not
address causal relationship between the diagnosed medical condition and the accepted
employment incident. OWCP also found Dr. Merkley’s reports had been discussed in the prior
decision and were found to be insufficient to establish causal relationship.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by it; or (3) constitute relevant and pertinent new evidence not previously considered
by OWCP.4 To be entitled to a merit review of an OWCP decision denying or terminating a
benefit, a claimant’s application for review must be received by OWCP within one year of the
date of that decision.5 When a claimant fails to meet one of the above standards, OWCP will
deny the application for reconsideration without reopening the case for review on the merits.6
ANALYSIS
On April 11, 2016 counsel requested reconsideration of the April 15, 2015 hearing
representative’s decision affirming the denial of his traumatic injury claim. The underlying issue

3

Supra note 2. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

Id. at 10.607(a).

6

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

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on reconsideration is medical in nature, whether appellant had a medical condition causally
related to the accepted February 24, 2014 employment incident.
The Board finds that appellant has neither shown that OWCP erroneously applied or
interpreted a specific point of law nor advanced a relevant legal argument not previously
considered by OWCP.
Counsel for appellant argued that Dr. Merkley’s March 31, 2015 report was sufficient to
establish appellant’s claim. He further argued that the hearing representative’s decision failed to
provide the basis for the denial of appellant’s claim.
The Board finds that OWCP properly reviewed Dr. Merkley’s March 31, 2015 report in
its April 15, 2015 decision finding that it was insufficient to establish appellant’s claim.
Contrary to counsel’s contentions, the hearing representative did provide a basis for the denial of
appellant’s claim when she reviewed the evidence of record, including Dr. Merkley’s March 31,
2015 report and found that it failed to establish causal relationship between a diagnosed medical
condition and the accepted February 24, 2014 incident.
Counsel had not established an error in the application or interpretation of a specific point
of law nor did she advance a relevant legal argument not previously considered by OWCP.7 As
such, appellant was not entitled to a review of the merits of his claim based on the first and
second above-noted requirements under section 10.606(b)(3).8
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence.
Appellant submitted a new report dated June 4, 2015 from Dr. Allen which related
appellant’s history of injury and provided an impairment rating for the diagnoses of left shoulder
and upper arm sprain and left acromioclavicular. This report, however, offered no opinion
explaining how appellant’s accepted February 24, 2014 incident caused or aggravated a left
rotator cuff tear or the conditions diagnosed by Dr. Allen. The Board has held that evidence
which does not address the particular issue involved does not constitute a basis for reopening a
case.9
Appellant also resubmitted Dr. Merkley’s March 31, 2015 report. However, evidence or
argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.10 The Board, therefore, finds that the evidence
submitted by appellant is insufficient to reopen appellant’s claim for a merit review.

7

A.T., Docket No. 14-417 (issued June 25, 2014).

8

20 C.F.R. §10.606(b)(3).

9

E.O., Docket No. 15-0635 (issued June 5, 2015); R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB
545 (2005).
10

A.L., Docket No. 08-1730 (issued March 16, 2009); J.P., 58 ECAB 289 (2007); Elaine M. Borghini, 57 ECAB
549 (2006).

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Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law, nor did it advance a point of law not previously considered by OWCP.
Appellant also did not submit pertinent new and relevant evidence. Therefore, pursuant to
20 C.F.R. § 10.608, OWCP properly denied his request for reconsideration of the merits of the
claim.
On appeal counsel argues that Dr. Allen’s report was improperly dismissed by OWCP as
an impairment rating. She further contends that the reports of Drs. Allen and Merkley were
rationalized and sufficient to establish appellant’s claim. As noted above, the Board lacks
jurisdiction to review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 5, 2016 is affirmed.
Issued: May 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTION SERVICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 19-0312
Issued: June 18, 2019

Case Submitted on the Record

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

JURISDICTION
On November 28, 2018 appellant filed a timely appeal from a June 21, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed since OWCP’s last merit decision, dated March 26, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On August 24, 2016 appellant, then a 34-year-old physical security specialist, filed a
traumatic injury claim (Form CA-1) alleging that on August 5, 2016 she sustained a possible
cervical fracture due to a motor vehicle accident while in the performance of duty. She explained
that she was approaching a barbed-wire gate and attempted to slam on the brakes, but her vehicle
skidded through a barbed-wire gate causing her side airbags to deploy. Appellant stopped work
on August 11, 2016.
An August 17, 2016 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
indicated no evidence of a fracture, herniated discs, or stenosis, and also indicated normal soft
tissue findings. A mild straightening of cervical lordosis was noted.
In an August 23, 2016 note, Dr. Hanna Engel-Brower, Board-certified in family medicine,
reported that appellant was confined to desk work and indicated that she was to undergo physical
therapy.
In a development letter dated August 25, 2016, OWCP informed appellant that the
evidence of record was insufficient to establish her traumatic injury claim. Appellant was advised
of the medical and factual evidence needed. OWCP afforded her 30 days to submit the requested
evidence.
In a September 2, 2016 attending physician’s report (Form CA-20), Dr. Engel-Brower
diagnosed neck pain which she opined was causally related to appellant’s August 5, 2016 motor
vehicle accident. She noted that appellant’s cervical spine x-ray revealed reversal of the cervical
lordosis and body height loss at C6. The cervical spine MRI scan revealed normal findings.
By decision dated September 30, 2016, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish a firm medical diagnosis which could be
reasonably attributed to the accepted August 5, 2016 employment incident.
On October 26, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
In an October 14, 2016 medical note, Dr. Engel-Brower discussed appellant’s physical
therapy treatment and work restrictions, noting that she had been released to full-duty work on
September 19, 2016.
A hearing was held on May 10, 2017 and appellant testified in support of her claim. She
noted that her cervical x-rays showed a mild reversal of the usual cervical lordosis and her MRI
scan also revealed a mild straightening of the cervical lordosis that was not as prominent.
Appellant reported that her physician informed her that this was “a kind of whiplash” for which
she underwent a course of physical therapy. She reported continued symptoms following her
return to full-duty work which subsequently resulted in low back symptoms due to inflammation
of her neck. The hearing representative advised her of the medical evidence needed in support of
her claim and the record was held open for 30 days.

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Following the hearing, a form dated August 25, 2016 was received on which appellant
advised that she had previously undergone a micro discectomy. She also reported current
symptoms of neck stiffness.
In an undated note received on July 10, 2017, Dr. Engel-Brower reported that appellant
had been evaluated in her clinic for neck pain on August 8, 2016 following a work related motor
vehicle accident which had occurred three days prior. She noted a muscle spasm in the cervical
spine which was due to a whiplash injury. Dr. Engel-Brower noted that appellant had muscle
spasms and her x-rays revealed evidence of a reversal of cervical lordosis. Appellant was placed
in a cervical collar to stabilize the cervical spine and restricted from working until a cervical MRI
scan could be performed. Dr. Engel-Brower noted that appellant’s August 17, 2016 cervical MRI
scan revealed persistent, but improving, straightening of the cervical spine which was also due to
muscle spasm.
By decision dated July 24, 2017, OWCP’s hearing representative affirmed the
September 30, 2016 decision, finding that the evidence of record was insufficient to establish a
firm medical diagnosis which could be reasonably attributed to the accepted August 5, 2016
employment incident.
In an undated narrative statement received on December 26, 2016, appellant argued that
Dr. Engel-Brower’s report previously submitted explained how the motor vehicle accident caused
her cervical spine muscle spasms and whiplash injury. She noted resubmission of the report and
the cervical spine x-ray and MRI scan studies, as well as submission of two pictures of her vehicle
which showed the barbed wire gate and where the airbags had deployed.
By decision dated March 26, 2018, OWCP denied modification of the July 24, 2017
decision finding that the evidence of record failed to establish a firm medical diagnosis which
could be reasonably attributed to the accepted August 5, 2016 employment incident.
On June 5, 2018 appellant requested reconsideration of OWCP’s decision.
In support of her claim, appellant submitted physical therapy notes dated August 25 and
September 9, 2016 documenting treatment for neck pain. She also submitted an unsigned and
undated medical note received on June 5, 2018 which was a partial duplicate of Dr. EngelBrower’s previously submitted July 26, 2017 note. The medical note reported appellant’s muscle
spasm of the cervical spine was due to a whiplash injury that was caused from the airbags
deploying as a result of the August 5, 2016 motor vehicle accident. Findings pertaining to cervical
spine x-ray and MRI scan studies were discussed.
Appellant also resubmitted photographs related to the August 5, 2016 motor vehicle
accident.
By decision dated June 21, 2018, OWCP denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a). It found that her reconsideration request neither raised substantive
legal questions, nor included new and relevant pertinent evidence sufficient to warrant further
merit review of her claim.

3

LEGAL PRECEDENT
Section 8128 (a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
ANALYSIS
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).8
In her timely application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, and she did not advance a new and
relevant legal argument not previously considered.9 Consequently, she is not entitled to review of
the merits of her claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
The Board notes that the underlying issue in this case was whether appellant sustained a
diagnosed medical condition causally related to the accepted August 5, 2016 employment incident.
That is a medical issue which must be addressed by relevant medical evidence not previously

3

This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

5
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees Compensation System (iFECS). Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608.

8

G.Q., Docket No. 18-1697 (issued March 21, 2019).

9

T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008).

4

considered.10 In support of her request for reconsideration appellant submitted physical therapy
notes. As these notes were not signed or reviewed by a physician, they do not constitute competent
medical evidence and are thus irrelevant to the critical issue of causal relationship.11 The Board
has held that evidence which is irrelevant to the claim is insufficient to warrant a merit review.12
Appellant also submitted a partial duplicate of Dr. Engel-Brower’s July 26, 2017 note,
discussing diagnostic testing, which was previously considered in the prior OWCP merit decisions,
as well as photographs from the motor vehicle accident already of record. Evidence which repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.13
In this case, appellant failed to submit relevant and pertinent new evidence establishing a
firm medical diagnosis.14 Thus, appellant is not entitled to a review of the merits of her claim
based on the third requirement under 20 C.F.R. § 10.606(b)(3).15
Accordingly, appellant has not met any of the requirements of 20 C.F.R. § 10.606(b)(3).
Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.16
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).

10

D.L., Docket No. 16-0342 (issued July 26, 2016).

11

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). C.L., Docket No. 17-0354 (issued
July 10, 2018) (physical therapists are not considered physicians under FECA).
12

J.W., Docket No. 18-0800 (issued November 19, 2018).

13

D.T., Docket No. 17-1734 (issued January 18, 20180; Richard Yadron, 57 ECAB 207 (2005).

14

P.C., Docket No. 18-1703 (issued March 22, 2019); M.H., Docket No. 13-2051 (issued February 21, 2014).

15

Id.

16
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 18, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Erie, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0882
Issued: November 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 11, 20191 appellant filed a timely appeal of the September 13, 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 over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish back conditions
causally related to the accepted factors of her federal employment.

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 13, 2018, the date of OWCP’s last decision was
March 12, 2019. Since using March 18, 2019, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is March 11, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 16, 2016 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained right-sided sciatica and degenerative disc disease
due to carrying a satchel filled with mail, papers, and packages while in the performance of duty.
She explained that her satchel aggravated her back muscles and spine, causing her to experience
two slipped discs in her back. Appellant first became aware of her conditions on July 15, 2015
and realized they were caused by factors of her federal employment on June 10, 2016. On the
reverse side of the claim form appellant’s supervisor noted that she stopped work on June 10, 2016
and had not returned.
In a statement dated June 16, 2016, appellant provided additional details of her claimed
injury. She indicated that she first began experiencing back issues in July 2015 and was seen by
Dr. Debora Radder, Board-certified in family medicine. Appellant underwent x-rays performed
in October 2015 that revealed narrowing of her spine, as well as degenerative disc disease in her
lumbar area. She stated that she continued to work 8 to 10 hours per day. Appellant contended
that she had not experienced back pain previously, but now has trouble moving up and down the
stairs and bending down.
In a report and release-from-work slip both dated June 10, 2016, Dr. Radder held appellant
off work from June 10 to 21, 2016 and diagnosed right-sided sciatica, lumbar degenerative disc
disease, and generalized anxiety disorder.
In a development letter dated June 23, 2016, OWCP notified appellant of the deficiencies
of her claim. It advised her of the factual and medical evidence necessary to establish her claim
and also provided questionnaires for appellant and her supervisor to complete. OWCP afforded
appellant and her supervisor 30 days to submit the necessary factual and medical evidence.
On June 27, 2016 appellant submitted the signed questionnaire page without responding to
OWCP’s specific inquiries.
A June 30, 2016 lumbar spine magnetic resonance imaging (MRI) scan, interpreted by
Dr. Dale Stevens, a Board-certified radiologist, revealed grade 1 anterolisthesis, multiple disc
desiccation with defused disc bulges and degenerative disc disease. Dr. Stevens noted that
appellant presented with low back pain radiating down her right hip and legs related to carrying
heavy mailbags.
Appellant also submitted progress notes from Dr. Radder, dated June 10 and 16, 2016.
Dr. Radder’s June 10, 2016 assessment provided that appellant’s conditions were likely caused by
overuse and repetitive activity at work and recommended rest, hot and cold applications, and an
x-ray moving forward. In her June 16, 2016 progress note, she made reference to appellant’s
increased right hip pain and indicated that a June 15, 2016 x-ray revealed no injury to her right
hip.
In a July 6, 2016 medical report, Dr. Radder stated that appellant’s MRI scan showed spinal
stenosis and spinal cord compression at several levels. She provided that, even with limited to
extremely light activities, appellant’s symptoms continued to worsen. Dr. Radder opined that
appellant would be unable to work and referred her to pain management and neurosurgery.

2

In a July 13, 2016 statement provided by S.C., appellant’s supervisor, she noted that none
of appellant’s supervisors were aware of her condition until she called out sick on June 13, 2016.
S.C. noted that appellant performed well as a carrier assistant, but once she became a regular
carrier, she had multiple Family and Medical Leave Act (FMLA) cases. She explained that
appellant arrived at work at 8:00 a.m., cased her route and carried the mail and made deliveries
accordingly. Appellant carried potentially up to 70 pounds, walked six hours per day on her route
and pushed hampers full of mail up a ramp to her vehicle. To the best of S.C.’s knowledge,
appellant never made a request for light or limited duty.
On August 3, 2016 appellant consulted with Dr. Gregory Bowden, a Board-certified
neurosurgeon. Dr. Bowden reviewed her medical history and discussed performing a lumbar
laminectomy and fusion at L3-L4 to relieve the pain in her leg and improve her walking, which
was performed on August 11, 2016.
In an August 19, 2016 medical report, Dr. Radder provided that, because appellant was
young and demonstrated no prior history of back problems, there was no reason to assume she had
degenerative disc disease prior to her job as a mail carrier. She explained that strenuous physical
activity, such as the work appellant performs as a mail carrier, could have caused her injury.
By decision dated September 15, 2016, OWCP denied appellant’s claim, finding that the
evidence submitted was insufficient to establish that the events causing her injuries occurred as
described. As appellant had not established the factual element of her claim, it found that she had
not met the requirements for establishing an injury as defined by FECA.
On October 7, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
OWCP continued to receive medical evidence from appellant. Appellant submitted a
June 15, 2016 evaluation note from Dr. Peter Intrieri, Board-certified in emergency medicine.
Also submitted was a June 15, 2016 radiology report from Dr. Antonio Pena, a Board-certified
radiologist, both of which noted appellant’s right hip pain and indicated that her x-rays found no
injury to her hip.
Appellant also submitted Dr. Bowden’s operative report detailing her August 11, 2016
L3-L4 laminectomy and lumbar fusion surgery.
In a December 8, 2016 medical note, Dr. Radder opined that appellant’s spinal stenosis and
degenerative disc disease developed during her federal employment. She provided that carrying a
heavy mailbag places mechanical stress on the spine, which could over time, along with normal
wear and tear and aging, lead to appellant’s problems. Dr. Radder also noted that there was no
specific injury event, as appellant’s back problems developed gradually over time and that
appellant had back pain prior to her federal employment. Finally, she stated that because she did
not have x-rays of appellant’s back prior to her federal employment, she could not rule out
appellant’s work duties as the cause of her injuries, but also could not state with certainty that her
work duties were the cause of her injuries.
A telephonic hearing was held before an OWCP hearing representative on May 10, 2017.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence. No additional evidence was received.
3

By decision dated June 23, 2017, OWCP’s hearing representative modified OWCP’s
September 15, 2016 decision to accept that appellant had established the implicated employment
factors; however, it found that the evidence submitted was insufficient to establish that her
conditions were causally related to the accepted factors of her federal employment.
On June 20, 2018 appellant requested reconsideration of OWCP’s June 23, 2017 decision.
She submitted a new narrative medical report from Dr. Bowden dated May 22, 2018, which had
not previously been submitted or reviewed.
In a May 22, 2018 narrative medical report, Dr. Bowden noted appellant’s employment
history and noted that she had a documented history of lumbar back pain dating at least from 2013,
a span of time that includes the time she was employed with the employing establishment. He
explained that appellant’s duties included carrying a heavy mailbag and walking a significant
distance on a regular basis. Dr. Bowden opined that appellant’s grade 1 spondylolisthesis was
likely previously present as a slow degenerative process and that her “repetitive lifting and
sustained off-center load of a 50+ pound mailbag would almost certainly have accelerated the
degenerative changes leading to a neurological decline and subsequent need for operative
management.” He provided that her repetitive lifting and carrying were more likely larger
components of her condition, as opposed to a previously unmentioned January 27, 2016 fall on
ice. Dr. Bowden also explained how the forward slippage of one vertebrae on another is a
biomechanical area of weakness and can result in back pain, radicular pain, spinal stenosis and
neurological dysfunction. Finally, he explained how this abnormal strain can eventually result in
stenosis.
By decision dated September 13, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
3

Supra note 2.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

S.C., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr.,
40 ECAB 312 (1988).
6
S.C., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).

4

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her back
conditions are causally related to accepted factors of her federal employment.
In support of her claim, appellant submitted a May 22, 2018 report from Dr. Bowden which
discussed the relationship between appellant’s employment history and her diagnosed condition
of lumbar spinal stenosis. Dr. Bowden explained how the forward slippage of one vertebrae on
another, placed under repetitive stress can result in stenosis. He opined that appellant’s previously
unmentioned January 27, 2016 fall on ice could have been a factor; that repetitive lifting and
carrying was more likely larger components; and that her lumbar condition was likely present
previously as a slow degenerative process. Dr. Bowden’s report however, was couched in
speculative terms and was thus insufficient to establish appellant’s claim.11 The Board has held
that while the opinion supporting causal relationship does not have to reduce the cause or etiology
of a disease or condition to an absolute certainty, the opinion must be one of reasonable medical
certainty and not speculative or equivocal in character.12

7

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

A.M., Docket No. 18-0685 (issued October 26, 2018).

9

E.V., Docket No. 18-0106 (issued April 5, 2018).

10

B.J., Docket No. 19-0417 (issued July 11, 2019).

11

The Board has held that speculative and equivocal medical opinions regarding causal relationship have no
probative value. R.C., Docket No. 18-1695 (issued March 12, 2019); see Ricky S. Storms, 52 ECAB 349 (2001) (While
the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the opinion
must not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical
certainty).
12

M.S., Docket No. 19-0189 (issued May 14, 2019); C.L., Docket No. 18-1379 (issued February 5, 2019).

5

Dr. Bowden’s remaining August 3 and 11, 2016 medical and operative notes are of no
probative value because they do not give an opinion on causal relationship. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship.13 As
Dr. Bowden’s notes did not contain an opinion on causal relationship, they are also of no probative
value.
In Dr. Radder’s July 6, August 19 and December 8, 2016 medical notes she opined that
appellant’s spinal stenosis and degenerative disc disease were due to overuse and repetitive activity
associated with her work duties. She stated that because she did not have x-rays of appellant’s
back prior to her federal employment, she could not rule out appellant’s work duties as the cause
of her injuries but also could not state with certainty that her work duties were the cause of her
injuries. Dr. Radder also noted that carrying a heavy mailbag “could” have caused appellant’s
injuries. Her notes attempt to address causal relationship, however, they were also couched in
speculative terms and were thus insufficient to establish appellant’s claim.14
Dr. Radder’s remaining June 10 and 16, 2016 medical reports made reference to appellant’s
pain and the difficulty she experiences in completing her work. However, the documents do not
offer an opinion on the cause of appellant’s condition.15 As Dr. Radder’s medical reports do not
offer an opinion on causal relationship, they are of no probative value.16
OWCP also received evaluation notes dated June 15, 2016 from Dr. Intrieri’s, in which he
made note of the sharp pain in appellant’s right hip but indicated that her x-rays found no injuries
in her hip. The Board has held that under FECA the assessment of pain is not considered a
diagnosis, as pain merely refers to a symptom of an underlying condition.17 As he failed to provide
a firm medical diagnosis and provided no rationalized explanation regarding causal relationship,
Dr. Intrieri’s evaluation notes are insufficient to establish that the employment incident
physiologically caused a diagnosed condition.18
Additionally, appellant also submitted a June 30, 2016 MRI scan study interpreted by
Dr. Stevens. The Board has held that diagnostic tests lack probative value as they do not provide
an opinion on causal relationship between appellant’s employment duties and the diagnosed
conditions.19 Accordingly, the June 30, 2016 MRI study is of no probative value regarding causal
relationship.
13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

Supra note 12.

15

Supra note 14.

16

See id.

17

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
rather than a compensable medical diagnosis). See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket
No. 08-1102 (issued October 10, 2008).
18

J.M., Docket No. 17-1002 (issued August 22, 2017).

19

See J.M., Docket No. 17-1688 (issued December 13, 2018).

6

As appellant has not submitted rationalized medical evidence establishing that her
conditions are causally related to the accepted factors of her federal employment, the Board finds
that she has not met her burden of proof 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish back conditions
causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Collins, CO, Employer
__________________________________________

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

Docket No. 18-0503
Issued: October 16, 2018

Case Submitted on the Record

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

JURISDICTION
On January 8, 2018 appellant filed a timely appeal from a November 6, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.2
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for appellant’s
lumbar surgery.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the November 6, 2017 decision OWCP received additional evidence in this claim.
However, the Board’s jurisdiction is limited to a review of the evidence that was in the record at the time OWCP
issued its final decision. Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009).

FACTUAL HISTORY
On December 16, 2015 appellant, then a 39-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on December 15, 2015 she slipped on ice and
fell, injuring her back while in the performance of duty. She stopped work on December 16, 2015
and received continuation of pay. On January 29, 2016 OWCP accepted the claim for strained
neck muscle, low back strain, concussion, loss of consciousness. It later expanded acceptance of
the claim to include pain disorder with psychological factors. OWCP paid appellant wage-loss
compensation benefits effective January 30, 2016.
In a report dated January 21, 2016, Dr. John Ray, a Board-certified orthopedic surgeon,
related that he had examined appellant following her December 15, 2015 slip and fall. He
diagnosed lumbar intervertebral disc disorders with radiculopathy and recommended back surgery.
Dr. Ray completed a note on June 1, 2016 and reported that appellant requested fusion surgery.
He diagnosed intervertebral disc disorders with radiculopathy, lumbar region. Dr. Ray requested
a psychological evaluation in consideration of an L4-5 fusion.
In a report dated June 16, 2016, Dr. Joel Cohen, a clinical psychologist, examined appellant
and diagnosed adjustment disorder with depressed mood. His testing was suggestive of poor
prognosis for optimal response from invasive procedures. Dr. Cohen diagnosed somatic
symptoms disorder, and adjustment reaction with depressed mood. He noted that he was
concerned that appellant was not ready to deal with the process of surgery. Dr. Cohen concluded,
however, that if surgical intervention was medically necessary it could proceed, followed by
additional psychological interventions.
On June 17, 2016 Dr. Ray provided a history of injury and found that appellant’s
psychological evaluation resulted in a recommendation of surgery. On physical examination he
noted mild loss of lumbar lordosis, normal symmetric gait, limited range of motion of the lumbar
spine due to discomfort, altered sensation over the left lateral calf, and normal muscle strength.
Dr. Ray reviewed appellant’s lumbar magnetic resonance imaging scan and diagnosed a large
central disc protrusion at L4-5 substantially narrowing each lateral recess at that level. He opined
that this finding was consistent with her back and lower extremity pain. Dr. Ray recommended a
L4-5 decompression and posterior lumbar fusion.
By development letter dated June 20, 2016, OWCP informed appellant that the evidence
of record was insufficient to establish that the requested treatment was medically necessary or
causally related to her accepted conditions. It requested that appellant obtain a rationalized
medical report explaining how her diagnosed condition and proposed surgery was related to her
accepted employment injuries. OWCP afforded appellant 30 days to provide the requested
information.
On June 22, 2016 OWCP expanded the acceptance of appellant’s claim to include
intervertebral disc disorders with radiculopathy L4-5, L5-S1 and intervertebral disc displacement
L4-5 and L5-S1.
On July 19, 2016 OWCP referred appellant for a second opinion evaluation with Dr. John
Douthit, a Board-certified orthopedic surgeon.

2

Dr. William Briggs, a Board-certified orthopedic surgeon, completed a report on July 22,
2016 and opined that appellant had exhausted conservative treatment options. He recommended
that she consider a fusion, but noted that she was going to be at high risk afterwards with regard
to pain control issues.
In a report dated August 22, 2016, Dr. Douthit, reviewed the statement of accepted facts
(SOAF), appellant’s history of injury, her medical treatment records, and her reports of back pain.
He performed a physical examination finding meaningful clinical findings were obscured because
of her extreme pain behavior. Dr. Douthit reported that appellant had no sensory or motor losses
and had no objective physical findings. He diagnosed depression and possible aggravation of
degenerative disease of the lumbar spine. Dr. Douthit found that appellant’s severe depression
with severe pain behavior was obscuring all clinical findings. He determined that she was currently
a poor candidate for surgery, and noted his strong opposition to surgery as treatment for appellant
until her depression was improved.
By decision dated September 7, 2016, OWCP denied authorization for appellant’s
requested surgical lumbar spinal fusion. It found that the weight of the medical opinion evidence
rested with Dr. Douthit who concluded that appellant’s obesity was hindering her recovery and
distorting medical findings as well as noting that appellant had a severe psychiatric disorder
making her a poor candidate for surgery. OWCP determined that the weight of the medical
evidence did not establish that the requested treatment was medically necessary for appellant’s
accepted employment injuries.
On September 30, 2016 appellant requested an oral hearing and review of the written
record from OWCP’s Branch of Hearings and Review. In a letter dated October 11, 2016, OWCP
informed appellant that the September 7, 2016 decision was issued in error and that a new decision
would be issued following her impartial medical examination.
Dr. Ray examined appellant on September 22, 2016. On physical examination he found
sensation was altered over the left lateral calf and giveaway weakness on strength testing. Dr. Ray
noted symptom magnification, but continued to recommend posterior lumbar fusion.
In a report dated September 30, 2016, Dr. Raymond P. van den Hoven, a Board-certified
physiatrist, noted appellant’s history of injury, performed a physical examination and reviewed the
result of his electrodiagnostic studies. He found no evidence of lumbar radiculopathy in either
lower extremity based upon the electrodiagnostic studies. Dr. van den Hoven noted that appellant
had a legitimate source of low back pain with degeneration at the L4-5 and L5-S1 levels. However,
he also reported significant nonorganic findings including severe weakness of the right lower
extremity and complaints of numbness in a nondermatomal pattern in her right leg.
Dr. van den Hoven concluded, “I think [appellant] has some genuine pathophysiology in her
lumbar spine, and if it were not for the significant nonorganic findings, in my opinion L4-5 fusion
would be a reasonable option.”
In a letter dated October 6, 2016, OWCP referred appellant for an impartial medical
examination with Dr. Alfred Lotman, a Board-certified orthopedic surgeon, to resolve the conflict
of medical opinion between Dr. Douthit, OWCP’s second opinion physician, and appellant’s

3

treating physicians Dr. Ray and Dr. Briggs, regarding appellant’s need for lumbar spinal fusion
surgery.
Dr. Lotman completed his report on November 14, 2016. He reviewed appellant’s history
of injury, the SOAF, as well as her medical history, and performed a limited examination as
appellant was in a wheelchair. Dr. Lotman noted her marked and extreme pain behaviors and
reported that he could not detect a motor, sensory, or reflex abnormality. He reported that
sensation to light touch was diminished in both legs in a nondermatomal pattern which would
change when examined repeatedly. Dr. Lotman could not detect any muscle atrophy. In response
to OWCP’s questions, he opined that appellant did not meet the criteria for surgery due to
significant psychological overlay. Dr. Lotman opined that her diagnosed condition did not warrant
surgical intervention.
By decision dated November 17, 2016, OWCP denied authorization for surgical lumbar
spinal fusion, finding that Dr. Lotman’s report was entitled to the special weight of the medical
evidence.
On December 12, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
On December 29, 2016 OWCP expanded acceptance of the claim to include major
depressive disorder, and undifferentiated somatoform disorder.
By decision dated February 3, 2017, an OWCP hearing representative found that
Dr. Lotman’s report was insufficiently rationalized to resolve the conflict of medical opinion and
remanded the case for OWCP to obtain a supplemental report.
In a report dated March 7, 2017, Dr. Lotman explained that lumbar fusion was not
medically necessary and that appellant was not a good surgical candidate for multiple reasons. He
noted on his previous examination he could not detect motor, sensory, or reflex abnormality.
Dr. Lotman further noted that appellant’s sensory loss in both legs was in a nondermatomal pattern
and shifted on repeat sensory examination. He was also unable to detect muscle atrophy.
Dr. Lotman noted that in order to justify operative interventions, clinical findings, clinical course,
and diagnostic tests must all be consistent resulting in a reasonable likelihood of at least a
measurable and meaningful functional and symptomatic improvement. He also determined that
nonphysiologic modifiers of pain presentation or nonoperative conditions mimicking
radiculopathy or instability must be ruled out prior to elective surgical intervention. Dr. Lotman
opined that appellant did not meet these criteria as she had no repeatable specific neurologic
findings, marked somatoform pain behaviors, negative electrodiagnostic studies, and
unexplainable inconsistencies. He concluded that appellant was not a suitable candidate for
surgery for these reasons.
By decision dated March 14, 2017, OWCP denied appellant authorization for a lumbar
spinal fusion finding that this treatment was not medically necessary to address effects of her

4

December 15, 2015 work-related conditions. It found that Dr. Lotman’s reports were entitled to
the special weight of the medical opinion evidence.3
On August 7, 2017 appellant requested reconsideration of the March 14, 2017 decision.
She submitted reports dated June 13, 15, and 2017 from Dr. William D. Boyd, a licensed clinical
psychologist, which noted that appellant complained of symptoms consistent with depression. On
June 29, 2017 Dr. Boyd opined that appellant was cleared from a psychological perspective for
surgery. On July 27, 2017 Dr. Cohen agreed that there were no overt emotional or behavioral
factors which would preclude appellant as a candidate for surgical intervention.
In a report dated August 31, 2017, Dr. Ray reviewed appellant’s diagnostic testing and
diagnosed advanced degenerative disc and facet changes at L4-5 resulting in lateral recess stenosis
and modic changes. He recommended posterior lumbar fusions.
By decision dated November 6, 2017, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decision. It found that there were multiple issues as to whether
appellant was a suitable candidate for surgical intervention, including whether she was
psychologically fit and whether the physical evidence warranted surgical intervention. OWCP
determined that the medical reports of record were insufficient to establish that the requested spinal
fusion was medically necessary.
LEGAL PRECEDENT
Section 8103 of FECA4 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or period of disability, or aid in lessening the amount of monthly compensation.5 While
OWCP is obligated to pay for treatment of employment-related conditions, the employee has the
burden of proof to establish that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.6
Section 10.310(a) of OWCP’s implementing regulations provides that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.7
Its procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets,
exercise bicycles, etc., may be authorized only if recommended by the attending physician and if

3

On April 24, 2017 appellant requested an oral hearing from OWCP’s Branch of Hearings and Review. By decision
dated May 8, 2017, OWCP’s Branch of Hearings and Review denied this request as untimely and determined in its
discretion that appellant’s claim could equally well be addressed through the reconsideration process.
4

Id. at § 8103.

5

D.C., Docket No. 18-0080 (issued May 22, 2018); Thomas W. Stevens, 50 ECAB 288 (1999).

6

D.C., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004).

7

20 C.F.R. § 10.310(a).

5

OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of disability,
or aid in lessening the amount of monthly compensation.8
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.9
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.10
Section 8123(a) of FECA which 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 (known as a referee physician or impartial medical
specialist) who shall make an examination.11 This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.12 When there exists opposing 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.13 In situations where there are 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 on a proper factual background, must be given special weight.14
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of lumbar surgery.

8
Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3.d(5)
(October 1995); Federal (FECA) Procedure Manual, Part 2 -- Claims, Durable Medical Equipment, Chapter
2.810.17.h (June 2014); D.J., Docket No. 13-1637 (December 2013).
9

D.C., supra note 5; D.K., 59 ECAB 141 (2007); Daniel J. Perea, 42 ECAB 214, 221 (1990).

10

Id.; see also Minnie B. Lewis, 53 ECAB 606 (2002).

11
5 U.S.C. § 8123(a); C.L., Docket No. 17-0230 (issued April 24, 2018); R.S., Docket No. 10-1704 (issued May 13,
2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
12

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006); C.L., id.

13

See C.L., supra note 11; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

14

C.L., supra note 11; Nathan L. Harrell, 41 ECAB 401, 407 (1990).

6

OWCP accepted that, as a result of a fall while at work on December 15, 2015, appellant
sustained strained neck muscle, low back strain, concussion, loss of consciousness, pain disorder
with psychological factors, intervertebral disc disorders with radiculopathy at L4-5 and L5-S1,
intervertebral disc displacement L4-5 and L5-S1, major depressive disorder, and undifferentiated
somatoform disorder.
Appellant’s attending physicians Dr. Ray and Dr. Biggs recommended lumbar spinal
fusion. OWCP referred appellant for a second opinion evaluation with Dr. Douthit who
determined that appellant had no objective physical findings, was currently a poor candidate for
surgery, and his strong opposition to surgery as treatment for her. It properly found that there was
a conflict of medical opinion regarding the need and appropriateness of surgery for appellant.
Consequentially, OWCP referred appellant to Dr. Lotman to resolve the conflict, pursuant to
5 U.S.C. § 8123(a).
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Lotman, the impartial medical specialist, who examined appellant, reviewed the medical
evidence, and found that lumbar fusion was not medically warranted. As noted, for a surgical
procedure to be authorized, a claimant must show that the surgery is for a condition causally related
to the accepted work injury and that it is medically warranted.15
In his November 14, 2016 report, Dr. Lotman reviewed appellant’s history of injury, the
SOAF, as well as her medical history, and performed a physical examination. He reported that he
could not detect a motor, sensory, or reflex abnormality. Dr. Lotman also found that sensation to
light touch was diminished in both legs in a nondermatomal pattern which would change when
examined repeatedly. Furthermore, he could not detect any muscle atrophy. In response to
OWCP’s questions, Dr. Lotman opined that appellant did not meet the criteria for surgery due to
significant psychological overlay and appellant’s diagnosed lumbar spine condition did not
warrant surgical intervention. In his supplemental report dated March 7, 2017, Dr. Lotman
explained that in order to justify operative interventions, clinical findings, clinical course, and
diagnostic tests must all be consistent resulting in a reasonable likelihood of at least a measurable
and meaningful functional and symptomatic improvement. He opined that appellant did not meet
these criteria as she had no repeatable specific neurologic findings, marked somatoform pain
behaviors, negative electrodiagnostic studies, and unexplainable inconsistencies. Dr. Lotman
determined that appellant was not a suitable candidate for surgery for these reasons.
The Board finds that Dr. Lotman’s reports represent the special weight of the medical
evidence and that OWCP properly relied on his reports in denying the requested surgery. The
Board finds that he had full knowledge of the relevant facts and evaluated the course of her
condition, his opinion is based on proper factual and medical history, and his report contained a
detailed summary of this history. Dr. Lotman addressed the medical records and made his own
examination findings to reach a reasoned conclusion regarding appellant’s condition and to support
that lumbar spinal fusion was not medically warranted.
Following Dr. Lotman’s March 7, 2017 report, appellant provided additional medical
evidence from her treating psychologists, Drs. Cohen and Boyd addressing emotional suitability
15

See C.L., supra note 11; P.F., Docket No. 16-0693 (issued October 24, 2016).

7

for surgery. On June 29, 2017 Dr. Boyd found that she was cleared from a psychological
perspective for surgery. On July 27, 2017 Dr. Cohen agreed with Dr. Boyd that there were no
overt emotional or behavioral factors which would preclude appellant as a candidate for surgical
intervention. These reports are insufficient to overcome the special weight accorded Dr. Lotman’s
reports or to create a new conflict as the reports only address one aspect of his rationale for denying
authorization for surgery, appellant’s emotional reactions. Dr. Lotman also found that surgery was
inappropriate based on appellant’s lack of objective reproducible physical findings.
In his August 31, 2017 report, Dr. Ray reviewed appellant’s diagnostic testing and
diagnosed advanced degenerative disc and facet changes at L4-5 resulting in lateral recess stenosis
and modic changes. He recommended a posterior lumbar fusion. Dr. Ray did not provide any
new results of examination and did not address the concerns raised by Dr. Lotman. Reports from
a physician who was on one side of a medical conflict that an impartial medical examiner resolved
are generally insufficient to overcome the special weight of the impartial medical examiner, or to
create a new conflict.16 While Dr. Ray asserted that the need for lumbar fusion was related to the
December 15, 2015 work injury, he failed to explain the findings on physical examination which
supported his opinion. Absent a well-rationalized explanation regarding the clinical basis for his
opinion that appellant required a lumbar fusion, his opinion is of limited probative value.17
The Board concludes that Dr. Lotman’s opinion that the lumbar fusion was not medically
warranted as appellant did not have objective findings on physical examination supporting the
need for surgery is entitled to special weight and represents the weight of the evidence.18
The only limitation on OWCP’s authority is approving or disapproving service under
FECA is one of reasonableness.19 In the instant case, appellant requested surgery. OWCP obtained
an impartial medical examination through Dr. Lotman who found that surgery was not warranted.
It therefore had sufficient evidence upon which it made its decision to deny surgery and did not
abuse its discretion.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization for lumbar spinal fusion
surgery.

16

C.L., supra note 11; D.C., Docket No. 16-0430 (issued August 29, 2016).

17

Id.

18

Id.

19

Supra note 9.

8

ORDER
IT IS HEREBY ORDERED THAT the November 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MCLELLAN AIR FORCE BASE,
McLellan, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-345
Issued: April 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 27, 2012 appellant filed a timely appeal from the September 7, 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 properly reduced appellant’s compensation for failing to
cooperate with vocational rehabilitation efforts.
FACTUAL HISTORY
On January 1, 1986 appellant, then a 38-year-old mechanic/repairman, sustained a low
back injury when he lifted an F-4 wing fold. OWCP accepted his claim for sprain of the lumbar
1

5 U.S.C. § 8101 et seq.

spine; thoracic or lumbosacral neuritis or radiculitis; and displacement of the lumbar
intervertebral disc. Appellant was placed on the periodic rolls and received appropriate
compensation and medical benefits.
In a report dated October 6, 2011, Dr. Douglas Merrill, appellant’s treating Boardcertified physiatrist, provided a history of injury and treatment. On examination, thoracic and
lumbar spine range of motion was functional for flexion, slightly limited and painful at the end
range of extension. Hip rotation was symmetric. Knee range of motion was normal. Muscle
testing was intact in the lower extremities distally, heel and toe walk power was intact bilaterally.
Sitting straight leg raise was negative bilaterally. Dr. Merrill opined that appellant’s back
condition had not resolved but that he could work four to eight hours per day with permanent
restrictions, which included no twisting, stooping or climbing. Appellant was precluded from
pushing, pulling or lifting more than 40 pounds.
OWCP referred appellant for vocational rehabilitation services. The referral form noted
that he had been unsuccessful in a previous rehabilitation effort because he could not sit for four
hours per day. On April 10, 2012 OWCP informed appellant of the referral and advised him that
he was expected to cooperate fully with the rehabilitation and reemployment effort.
In a report dated April 25, 2012, the rehabilitation counselor indicated that she had
conducted an initial interview with appellant on that date. Appellant informed her in no
uncertain terms that he did not wish to participate in vocational rehabilitation efforts. He refused
to review with the counselor his current medical condition, work history or education
background, alleging that he was in chronic pain as well as suffering from cardiovascular fatigue
which, in his opinion, would preclude consistent work activity.
The rehabilitation counselor conducted a labor market survey and, based on the medically
determinable residuals of the injury in the case and taking into consideration all pertinent
nonmedical factors, selected the positions of surveillance system monitor or security
identification clerk as employment goals. Such work was being performed in sufficient numbers
so as to be considered reasonably available within his commuting area. To give appellant
background in the security surveillance monitor and security identification clerk field, the
counselor recommended a one-day training program at Universal Security Academy to obtain his
guard card.
On July 25, 2012 OWCP approved the vocational rehabilitation plan for the vocational
goals of surveillance system monitor (DOT: 379.367-010) and security identification clerk
(DOT: 205.362-022). Pursuant to the plans, appellant was to attend a one-day training program
to obtain his guard card. OWCP informed him that the positions of surveillance system monitor
and security identification clerk were within his medical restrictions and that he would receive 90
days of placement after any necessary training.2 Appellant was advised that he was expected to
cooperate fully with the rehabilitation program, so that he might return to work.

2

The Board notes that the position descriptions for the selected positions identify the positions as sedentary,
requiring no climbing, stooping or kneeling and lifting a maximum of 10 pounds occasionally.

2

Appellant refused to sign the rehabilitation plan documents or to participate in the
training, claiming that he was medically incapacitated and unable to perform the duties of the
selected positions.
By letter dated August 2, 2012, OWCP informed appellant that it had been advised by the
rehabilitation counselor that he declined to participate in vocational rehabilitation. It stated that
the reasons given were unacceptable and advised him of the sanctions for failure to undergo
vocational rehabilitation. Appellant was advised to contact OWCP and the rehabilitation
counselor within 30 days.
Appellant submitted a July 24, 2012 procedure note from Dr. William Fenton, a Boardcertified internist, who performed an epidural injection on that date. In an August 7, 2012
follow-up report, Dr. Merrill noted that appellant had chronic low back pain associated with right
lower extremity sciatica. On August 9, 2012 Dr. David B. Wampold, a Board-certified internist,
stated that appellant had a myocardial infarction and had three-vessel coronary artery disease.
The record contains a July 24, 2012 x-ray of the lower back.
In a letter dated August 21, 2012, appellant stated that he intended to fully cooperate “as
long as my rights are not violated.” He disagreed with Dr. Merrill’s opinion that he was able to
work four to eight hours per day, noting that he had previously been unable to complete a
vocational rehabilitation program due to his inability to sit for more than four hours at a time.
In a decision dated September 7, 2012, OWCP found that appellant had failed, without
good cause, to undergo vocational rehabilitation as directed and accordingly reduced his
compensation effective that date based on what his wage-earning capacity would have been as a
surveillance system monitor had he completed the training program.
LEGAL PRECEDENT
OWCP may direct a permanently disabled individual whose disability is compensable to
undergo vocational rehabilitation.3 If an individual without good cause fails to apply for and
undergo vocational rehabilitation when so directed, OWCP, on review under 5 U.S.C. § 8128
and after finding that in the absence of the failure the wage-earning capacity of the individual
would probably have substantially increased, may reduce prospectively the monetary
compensation of the individual in accordance with what would have probably been his or her
wage-earning capacity in the absence of the failure, until the individual in good faith complies
with the direction of OWCP.4
Where a suitable job has been identified, OWCP will reduce the employee’s future
monetary compensation based on the amount which would likely have been his or her wageearning capacity had he or she undergone vocational rehabilitation. It will determine this amount
in accordance with the job identified through the vocational rehabilitation planning process,

3

5 U.S.C. § 8104(a).

4

Id. at § 8113(b). See J.E., 59 ECAB 606 (2008).

3

which includes meeting with OWCP nurse and the employer. The reduction will remain in effect
until such time as the employee acts in good faith to comply with the direction of OWCP.5
ANALYSIS
The weight of the medical evidence established that appellant was not disabled for all
work and OWCP directed him to undergo vocational rehabilitation.
The vocational
rehabilitation counselor developed a training plan for appellant to attend a one-day training
program to prepare him to perform the positions of security surveillance monitor and security
identification clerk. Appellant refused to sign the rehabilitation plan and failed to attend class.
The question before the Board is whether he has shown good cause for his failure to participate
in vocational rehabilitation when so directed.
The Board finds that appellant failed to show good cause for failing to participate in
vocational rehabilitation. Appellant informed the rehabilitation counselor that he did not wish to
participate in vocational rehabilitation efforts. He refused to review with the counselor his
current medical condition, work history or education background, alleging that he was in chronic
pain as well as suffering from cardiovascular fatigue which, in his opinion, would preclude
consistent work activity. The positions selected, however, were consistent with appellant’s work
restrictions and were based on a labor market survey, as well as vocational testing and skills
assessment. Appellant’s lay opinion that he was unable to participate in the program does not
constitute probative medical evidence.6 He did not submit any probative medical evidence in
support of his claim that he was unable to attend the approved training or to perform the
proposed jobs.
In response to OWCP’s August 2, 2012 letter, appellant submitted: a July 24, 2012
procedure note from Dr. Fenton; an August 7, 2012 report from Dr. Merrill; an August 9, 2012
report from Dr. Wampold; and a July 24, 2012 x-ray of the lower back. None of these reports
contains any information on the issue of appellant’s ability to participate in vocational
rehabilitation. Therefore, they are irrelevant and insufficient to show good cause for his failure
to do so.
In his August 21, 2012 letter, appellant stated that he intended to fully cooperate “as long
as my rights are not violated.” He disagreed with Dr. Merrill’s opinion that he was able to work
four to eight hours per day, noting that he had previously been unable to complete a vocational
rehabilitation program due to his inability to sit for more than four hours at a time. As noted,
appellant’s lay opinion does not constitute probative medical evidence and is not good cause for
failing to participate in vocational rehabilitation.7 His allegations are not supported by the
weight of the medical evidence, which is represented by Dr. Merrill’s October 6, 2011 report.

5

20 C.F.R. § 10.519 (1999).

6

The Board has held that lay individuals are not competent to render a medical opinion. Gloria J. McPherson, 51
ECAB 441 (2000).
7

Id.

4

The Board finds that OWCP properly reduced appellant’s compensation. The record
reflects that he was encouraged on several occasions to cooperate with the approved plan, but he
refused to sign the plan or to attend the approved training as scheduled. Appellant has not shown
good cause for his failure to participate in vocational rehabilitation when so directed. OWCP
properly found that vocational training would probably have substantially increased his wageearning capacity and properly reduced his compensation in accordance with what would have
probably been his wage-earning capacity had he completed the program. The Board will affirm
the September 7, 2012 decision reducing appellant’s compensation. This reduction remains in
effect until he in good faith complies with the direction of OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation for failing to
cooperate with vocational rehabilitation.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5