United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
DEPARTMENT OF LABOR, JOB CORPS
CENTER, Morganfield, KY, Employer
__________________________________________

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

Docket No. 09-339
Issued: August 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 10, 2008 appellant filed a timely appeal from September 2 and
November 3, 2008 decisions of the Office of Workers’ Compensation Programs, terminating her
wage-loss compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective September 28, 2008; and (2) whether
appellant met her burden of proof to establish that she had any employment-related disability or
medical condition after September 28, 2008 causally related to her employment injury.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated October 22, 1999, the Board
reversed a May 2, 1997 Office decision that terminated appellant’s compensation benefits on the
grounds that her May 12, 1996 employment injury had resolved. The facts and the law of the
previous Board decision are incorporated herein by reference.
On July 12, September 28 and October 18, 2007 the Office asked Dr. Michael C.
McGlamry, a podiatrist and appellant’s last attending physician of record, to provide an opinion
as to whether appellant continued to be totally disabled due to her accepted left ankle sprain.
Dr. McGlamry’s office responded that appellant had not been treated since March 2007.
In an April 22, 2008 report, Dr. Alexander N. Doman, a Board-certified orthopedic
surgeon and a referral physician, reviewed appellant’s medical history and provided findings on
physical examination. He noted that appellant had a significant limp on ambulation. Range of
motion of the left ankle was limited to 0 degrees of dorsiflexion and 20 degrees of plantar
flexion. X-rays of the left ankle revealed severe end-stage osteoarthritis with widening of the
distal tibia/fibula joint and the medial mortis of the ankle. Dr. Doman diagnosed end-stage
osteoarthritis of the left ankle. He stated that this condition was caused by appellant’s
preexisting ankle instability that predated her job at the employing establishment. Appellant’s
osteoarthritis was caused by her nonwork-related left ankle fracture in March 1995 when she fell
off a ladder. Due to difficulty with the initial surgery performed on March 22, 1995, additional
reconstructive surgery was recommended but appellant declined. Appellant regained ambulation
until she sprained her left ankle on May 12, 1996 while roller skating. Dr. Doman opined that
her accepted May 12, 1996 left ankle sprain had fully and completely resolved. Appellant’s
current condition represented the natural progression of her 1995 fracture dislocation of her left
ankle with progressive osteoarthritis. Her employment-related left ankle sprain in 1996 was a
temporary aggravation of her underlying disorder and would have resolved no later than
May 1997.
By letter dated July 24, 2008, the Office advised appellant of its proposed termination of
her wage-loss compensation and medical benefits on the grounds that the weight of the medical
evidence established that she had no remaining disability or medical condition causally related to
her May 12, 1996 employment-related left ankle sprain.
By decision dated September 2, 2008, the Office terminated appellant’s wage-loss
compensation and medical benefits on the grounds that the weight of the medical evidence
established that she had no continuing disability or medical condition causally related to her
May 12, 1996 employment-related left ankle sprain.
Appellant requested reconsideration and submitted additional medical evidence. In
reports dated August 6 and 29, 2008, Dr. Ralph D’Auria, a Board-certified physiatrist, reviewed
1

Docket No. 98-102 (issued October 22, 1999). On May 12, 1996 appellant, then an 18-year-old job corps
enrollee, sustained a left ankle sprain in the performance of duty while roller skating during an employing
establishment outing. On October 3, 1996 the Office placed her on the periodic rolls. Appellant had a prior
nonwork-related left ankle fracture for which she underwent surgery on March 22, 1995.

2

appellant’s medical history and provided findings on physical examination. Appellant had very
limited range of motion of the subtalar joint and ankle. There was swelling. Appellant walked
with difficulty, using short steps and holding her left foot in external rotation. Left ankle x-rays
taken August 8, 2008 revealed an old fracture of the distal third of the tibia with collapse of the
talus, widening of the syndesmosis and calcifications over the lateral tibia. The subtalar space
was extremely narrow and the tibial/talar relationship was totally distorted. There was a
significant degree of subchondral sclerosis and diastasis of the medial malleolus. Dr. D’Auria
diagnosed advanced post-traumatic degenerative changes secondary to an old left ankle fracture.
Appellant could perform only sedentary work. Dr. D’Auria noted that the cause of appellant’s
current condition was under question. He explained that the issue of causal relationship was not
addressed in his report because the purpose of his evaluation was only to determine her
functional status.
By decision dated November 3, 2008, the Office denied modification of the September 2,
2008 decision.2
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that require further medical treatment.6
ANALYSIS -- ISSUE 1
Appellant’s claim for an injury on May 12, 1996 was accepted for a left ankle sprain.
Dr. Doman provided a comprehensive report dated April 22, 2008. He was provided with
appellant’s case file and a statement of accepted facts. In his April 22, 2008 report, Dr. Doman
reviewed appellant’s medical history and provided findings on physical examination. He noted
that appellant had a significant limp on ambulation. Range of motion of the left ankle was
limited to 0 degrees of dorsiflexion and 20 degrees of plantar flexion. X-rays of the left ankle
2

Subsequent to the November 3, 2008 decision, additional evidence was associated with the case. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal. The Board notes that there is a
November 16, 2007 overpayment decision which appellant is not appealing.
3

I.J. 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
4

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Anna M. Blaine, 26 ECAB 351 (1975).

5

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

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revealed severe end-stage osteoarthritis with widening of the distal tibia/fibula joint and the
medial mortis of the ankle. Dr. Doman diagnosed end-stage osteoarthritis of the left ankle. He
stated that this condition was caused by appellant’s preexisting ankle instability that predated her
job at the employing establishment. Appellant’s osteoarthritis was caused by her nonworkrelated left ankle fracture in March 1995 when she fell off a ladder. Due to difficulty with the
initial surgery performed on March 22, 1995, additional reconstructive surgery was
recommended but appellant declined. Dr. Doman opined that appellant’s accepted May 12, 1996
left ankle sprain had fully and completely resolved. Appellant’s current condition represented
the natural progression of her 1995 fracture dislocation of her left ankle with progressive
osteoarthritis. Her employment-related left ankle sprain in 1996 was a temporary aggravation of
her underlying disorder and would have resolved no later than May 1997. The report of
Dr. Doman is based upon a complete and accurate factual and medical background and findings
on physical examination. The Board finds that Dr. Doman’s thorough and well-rationalized
report establishes that appellant had no continuing disability or medical condition after
September 28, 2008 causally related to her May 12, 1996 accepted left ankle sprain.
Accordingly, the Office met its burden of proof in terminating appellant’s wage-loss
compensation and medical benefits effective September 28, 2008 based on the medical opinion
of Dr. Doman that her accepted left ankle sprain had resolved.
LEGAL PRECEDENT -- ISSUE 2
Where the Office meets its burden of proof in justifying termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
related to the employment injury.7 In order to prevail, the employee must establish by the weight
of the reliable, probative and substantial evidence that he or she had an employment-related
disability which continued after termination of compensation benefits.8
ANALYSIS -- ISSUE 2
The Board finds that, following the proper termination of her compensation and medical
benefits on September 28, 2008, appellant failed to establish that she had any continuing
disability or medical condition causally related to her May 12, 1996 employment-related left
ankle sprain.
Dr. D’Auria reviewed appellant’s medical history and provided findings on physical
examination. She had very limited range of motion of the subtalar joint and ankle. Appellant
walked with difficulty, using short steps and holding her left foot in external rotation. Left ankle
x-rays taken August 8, 2008 revealed an old fracture of the distal third of the tibia with collapse
of the talus. Dr. D’Auria diagnosed advanced post-traumatic degenerative changes secondary to
an old left ankle fracture. He noted that the cause of appellant’s current condition was under
question but this issue was not addressed in his report because the purpose of his evaluation was
to determine her functional status. As Dr. D’Auria did not provide an opinion as to causal
7

I.J., supra note 3; Anna M. Blaine, 26 ECAB 351, 353-54 (1975); see Fred Foster, 1 ECAB 127, 132-33 (1948).

8

I.J., supra note 3; Gary R. Sieber, 46 ECAB 215, 222 (1994); see Wentworth M. Murray, 7 ECAB 570,
572 (1955).

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relationship, his reports are not sufficient to establish that appellant had any disability or medical
condition after September 28, 2008 causally related to her May 12, 1996 accepted left ankle
sprain. Accordingly, the Office properly denied modification of the September 2, 2008
termination decision.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation and medical benefits effective September 28, 2008. The Board further finds
that appellant did not meet her burden of proof to establish that she had any work-related
disability or medical condition after September 28, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 3 and September 2, 2008 are affirmed.
Issued: August 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, NORTHEAST
ANNEX, Springfield, IL, Employer
__________________________________________

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

Docket No. 15-1330
Issued: February 10, 2017

Case Submitted on the Record

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

JURISDICTION
On May 27, 2015 appellant filed a timely appeal from a May 5, 2015 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
review the merits of this case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of his
left upper extremity causally related to the accepted impingement syndrome.
FACTUAL HISTORY
On December 22, 2011 appellant, then a 49-year-old carrier, filed an occupational disease
claim (Form CA-2) alleging that his chronic left shoulder pain was a result of the physical
demands of his federal employment. OWCP accepted his claim for left shoulder impingement.
1

5 U.S.C. § 8101 et seq.

Appellant filed a claim for a schedule award (Form CA-7). On May 13, 2014
Dr. Michael D. Watson, a Board-certified orthopedic surgeon, evaluated appellant’s impairment.
He related appellant’s history and described his findings on physical examination of the left
shoulder. Appellant was tender on the acromioclavicular joint. He had a positive Hawkins sign.
There was 100 degrees forward flexion, 40 degrees extension, 30 degrees adduction, 90 degrees
abduction, 20 degrees external rotation, and 50 degrees internal rotation.
Dr. Watson diagnosed adhesive capsulitis and chronic impingement syndrome of the left
shoulder, objectively demonstrated by an imaging study. He determined that appellant had 14
percent permanent impairment due to loss of shoulder motion. Using he range of motion (ROM)
method, under the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (6th ed. 2009). Dr. Watson found six percent impairment for loss of
flexion and extension, five percent impairment for loss of abduction and adduction, and three
percent impairment for loss of external and internal rotation. These added up to 14 percent total
impairment of the left upper extremity. Dr. Watson cited to specific figures in the A.M.A.,
Guides.
Dr. David H. Garelick, a Board-certified orthopedic surgeon and OWCP medical adviser,
reviewed Dr. Watson’s evaluation of the left upper extremity. He advised that the diagnosisbased impairment (DBI) method should be used rather than the ROM. For these reasons,
Dr. Garelick suggested that Dr. Watson’s rating be disregarded. “In large part, this is based on
the fact that Table 15-5 in the A.M.A., Guides clearly outlines appropriate [permanent partial
impairment] as it relates to impingement syndrome in the shoulder.”
Citing Table 15-5, page 402, of the A.M.A., Guides, Dr. Garelick noted a default
impairment value of one percent for impingement syndrome. Given the ROM deficiencies,
however, he adjusted the rating to two percent. Dr. Garelick noted that appellant had previously
received 10 percent impairment rating of the left upper extremity for tenosynovitis in the wrist
and hand as well as for carpal tunnel syndrome. Combining this prior rating with the 2 percent
rating for impingement syndrome, he concluded that appellant had 12 percent total permanent
impairment of his left upper extremity.
On July 17, 2014 OWCP issued a schedule award for an additional two percent
impairment of appellant’s left upper extremity.
Appellant requested a hearing. An OWCP hearing representative set aside this decision
and remanded the case for further development of the medical evidence. She noted that the
ROM method may be selected as an alternative approach in rating impairment under certain
circumstances. The hearing representative noted that the A.M.A., Guides required the evaluator
to consider both the DBI method and ROM method and to choose the method that yielded the
higher impairment value. She also noted that Dr. Garelick failed to explain how he calculated
each grade modifier in his diagnosis-based approach. The hearing representative remanded the
case for an accurate statement of accepted facts reflecting all accepted conditions and a thorough
review by the medical adviser.
Dr. Watson advised that the ROM method should be used because it yielded the larger
impairment rating. For that reason, he stood by his original evaluation.

2

Appellant noted that OWCP’s findings were not specific about what was needed. “I
request a specific itemized list of what needs to be changed.”
Dr. Garelick explained that the sixth edition of the A.M.A., Guides differed from
previous editions in that ROM was typically used as a grade modifier, rather than as a basis for
an impairment rating. He cited page 387 of the A.M.A., Guides: “ROM is used primarily as a
physical examination adjustment factor and only to determine actual impairment values in the
rare case when it is not possible to otherwise define impairment; this is a significant change from
prior editions.”
Dr. Garelick therefore applied the DBI method. As before, the default impairment value
for impingement syndrome was one percent. This was a class 1 diagnosis, denoting a mild
problem. Functional history was also mild, as pain was previously reported to be at the extremes
of motion while reaching away from the body, and appellant could perform his job without
difficulty. Physical examination findings were moderate due to the ROM deficits and clinical
studies were moderate, as they showed rotator cuff tendinosis. The moderate physical
examination findings and clinical studies moved the default impairment value to 2 percent due to
the adjustment factors, or 12 percent total impairment in addition to the previously awarded 10
percent impairment for tenosynovitis in the wrist and hand and carpal tunnel syndrome.
OWCP asked Dr. Garelick for a supplemental report. It noted that specific functional
impairments, such as loss of flexion and extension, should be itemized and stated in terms of a
percentage loss of use of the member in accordance with the tables in the A.M.A., Guides.
OWCP further requested: “If you find deficiencies in the medical record, please be advised of
the specific criteria that must be part of the record in order to make a sound medical
determination on the issue of permanent impairment. I will then contact Dr. Watson with your
specific recommendations.”
Dr. Michael Hellman, an orthopedic surgeon and OWCP medical adviser, explained that
he based his rating on the diagnosis of impingement syndrome, which was the most impairing
diagnosis in the shoulder region. He did not use a functional history modifier, as this was
already awarded for appellant’s wrist tenosynovitis in a previous impairment rating.
Dr. Hellman applied a moderate physical examination modifier, as the other medical adviser had
reported moderate ROM deficits and the clinical studies showing rotator cuff tendinosis was
mild. These modifiers adjusted the default impairment value for impingement syndrome to two
percent.
Dr. Hellman addressed ROM:
“I disagree with Dr. Watson’s impairment rating.
The A.M.A., Guides
specifically state that [DBI] ratings should be utilized whenever possible, and that
[ROM] impairment ratings are primarily used as a physical examination grade
modifier (page 387). Dr. Watson is incorrect in stating that whatever impairment
is higher should be used. He did not city any page number within the A.M.A.,
Guides that states this policy, and to my knowledge, this policy is never
mentioned within the A.M.A., Guides.”

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In a decision dated May 5, 2015, OWCP affirmed the additional 2 percent impairment for
the left shoulder which equaled 12 percent total impairment of the left upper extremity: 10
percent under OWCP File No. xxxxxx455 (for tenosynovitis in the left wrist and hand as well as
left carpal tunnel syndrome) and 2 percent for impingement syndrome of the left shoulder.
On appeal, appellant argues that Dr. Watson was the only physician to examine his
shoulder for permanent loss. “I also appeal the 10 percent upper extremity loss of my left wrist
(File No. xxxxxx455) when this is about my right shoulder loss (File No. xxxxxx463).”
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.2 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.3 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the American Medical Association, Guides to the Evaluation of
Permanent Impairment as the appropriate standard for evaluating schedule losses.4
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).5 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.6

2

See 20 C.F.R. §§ 1.1-1.4.

3

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
4

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
6

Isidoro Rivera, 12 ECAB 348 (1961).

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ANALYSIS
The issue on appeal is whether appellant has more than two percent permanent
impairment of his left upper extremity causally related to the accepted impingement syndrome.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.7
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.8 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.9
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the May 5, 2015 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

T.H., Docket No. 14-0943 (issued November 25, 2016).

8

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

9

Supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the May 5, 2015 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: February 10, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 07-1994
Issued: April 18, 2008

Case Submitted on the Record

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

JURISDICTION
On July 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 14, 2006 and April 4, 2007 merit decisions concerning the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
December 14, 2006 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
The Office accepted that on August 5, 2005 appellant, then a 57-year-old mail processing
clerk, sustained closed fractures of her right supracondyle humerus and radius head, left knee and
leg sprain/strain, internal derangement of her left knee, deviated nasal septum, left hip fracture,
postconcussions, left shoulder strain/sprain, and excessive attrition of her number eight tooth
when she fell forward to the ground. The Office paid compensation for periods of disability. On

December 9, 2005 appellant underwent open reduction and internal fixation for a subcapital
fracture of her left proximal femur.1 On June 30, 2006 she underwent a medial and lateral
meniscectomy.
On August 15, 2006 Dr. Jerry Gurkoff, an attending osteopath, completed a work
capacity evaluation form (OWCP-5c). In the portion of the form asking whether appellant could
work eight hours per day with restrictions, Dr. Gurkoff checked a “no” box and stated, “Unable
to stand or lift….” He checked a “yes” box indicating that he anticipated appellant would be
able to increase her work hours and in the portion of the form asking when appellant could work
eight hours per day, he stated, “probably four to six weeks after left shoulder repair.”2 In the
portion of the form asking whether there were “other medical factors, equipment or devices
which needed to be considered in the identification of a position” for appellant, Dr. Gurkoff
stated, “[Ears, nose, throat] -- nasal (gum, teeth in front, unrepaired left shoulder -- resolving left
hip fracture -- knee surgery).” In the portion of the form for work restrictions, he indicated that
appellant could sit for eight hours per day, engage in repetitive hand and elbow motion for eight
hours, walk, and stand or twist for one to two hours, but could not bend, stoop, squat, kneel, or
climb. Dr. Gurkoff stated that appellant could not reach, lift, push or pull with her left arm.
In an August 15, 2006 report, Dr. Gurkoff stated that appellant was not finished with
therapy on her left knee and indicated that it was stiff and sore and that her motion varied. He
stated that she needed “a good strong leg” and added that “she is simply not there.” Dr. Gurkoff
noted:
“Lastly discussion is made with regard to return to work and restrictions. I
believe that all are aware that the treatment to the left leg (knee and hip) are not
concluded and that the facial/[ears, nose, throat]/dental issues and her left
shoulder are not yet attended or corrected. Given those limitations guidelines are
proposed.”
On August 30, 2006 the employing establishment offered appellant a job as a modified
mail processing clerk for eight hours per day. The job involved sitting or standing while lifting
mail and placing it in slots in a mail case and required fair strength in both hands3 and walking
several hundred feet to walk to and from the parking lot, time clock, restroom and cafeteria. The
duties required frequent lifting with either hand to mid chest level and continuous handling,
grasping, fingering with either hand. The job did not require crouching, stooping, kneeling,
crawling, climbing, twisting, pushing or pulling.

1

This surgery was necessitated by a fall appellant sustained at home on December 7, 2005 when her left knee
buckled.
2

In additional partially legible notes in this section, Dr. Gurkoff made note of ears, nose, throat and dental
problems.
3

Each piece of mail was required to weigh less than 16 ounces.

2

In an August 31, 2006 report, Dr. Gurkoff indicated that he had seen a description of the
modified mail processing clerk position offered by the employing establishment. Dr. Gurkoff
stated:
“She has not finished [physical therapy] on her lower extremities, is still walking
with a cane at times, has not had the proposed surgery done on her nose and her
shoulder is an unattended area.”
***
“I did make for [appellant] a profile of what restrictions she might have upon
return to work, but never was it my understanding that an order to return would
precede her completion of therapy, resolution of the nasal problem, and the
shoulder dysfunction.”
In a September 11, 2006 letter, the Office advised appellant of its determination that the
modified mail processing clerk position was suitable. The Office noted that her compensation
would be terminated if she did not accept the position or provide justification for not accepting it
within 30 days of the date of the letter.
Appellant resubmitted the August 15 and 31, 2006 narrative reports of Dr. Gurkoff and a
September 13, 2006 note in which the physician indicated that she needed a psychological
evaluation.
In an October 18, 2006 letter, the Office noted that appellant refused to accept the
modified mail processing clerk position and it had considered her reasons for not accepting the
position but did not find them to be valid. The Office advised appellant that her compensation
would be terminated if she did not accept the position within 15 days of the letter.
Appellant submitted a November 3, 2006 report in which Graciela M. Valenzuela, a
licensed professional counselor, diagnosed an adjustment disorder with mixed anxiety and
depressed mood. In an October 30, 2006 report, Dr. Gurkoff stated:
“[Appellant] is rechecked and she has had her nose fixed, feels somewhat better
and is having some hip pain with weather changes. That is not unusual. She is
filmed and the hip is healed, the bone satisfactory, joint space maintained…. Her
left knee is fine, occasional complaints but nothing unusual or unexpected.”
In a December 14, 2006 decision, the Office terminated appellant’s compensation
effective December 14, 2006 on the grounds that she had refused an offer of suitable work. The
Office found that the Form OWCP-5c completed by Dr. Gurkoff on August 15, 2006 showed
that she could perform the modified mail processing clerk position.
Appellant submitted numerous medical records from 2005, many of which were
previously of record. In a December 21, 2006 report, Dr. Gurkoff stated that appellant showed
him the Office’s termination decision. He noted, “[Appellant] has things that need repaired
before she could return to work and quite frankly she will need now to waste time and find out
what is ‘permitted’ and what is not.”
3

Appellant requested a review of the written record by an Office hearing representative.
In a January 8, 2007 report, Dr. Gurkoff recommended surgery for the impingement of her left
shoulder and indicated that the surgery would have to be followed by physical therapy to “return
function to near normal.” In a January 11, 2007 report, he stated, “At the present time
[appellant] is unable to return to work until further notice, pending left rotator cuff surgery.”
In an April 4, 2007 decision, the Office hearing representative affirmed the Office’s
December 14, 2006 decision.4
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who.... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”5 However, to justify such termination, the Office
must show that the work offered was suitable.6 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.7
ANALYSIS
The Office accepted that on August 5, 2005 appellant sustained closed fractures of her
right supracondyle humerus and radius head, left knee and leg sprain/strain, internal derangement
of her left knee, deviated nasal septum, left hip fracture, postconcussions, left shoulder
strain/sprain, and excessive attrition of her number eight tooth. On December 9, 2005 appellant
underwent open reduction and internal fixation for a subcapital fracture of her left proximal
femur. On June 30, 2006 she underwent a medial and lateral meniscectomy.
On August 30, 2006 the employing establishment offered appellant a job as a modified
mail processing clerk for eight hours per day.8 Appellant refused the job offer, indicating that
her medical condition prevented her from working. The Office based its determination that
appellant could perform the job on a Form OWCP-5c completed on August 15, 2006 by
Dr. Gurkoff, an attending osteopath.9
4

Appellant submitted additional evidence after the Office’s April 4, 2007 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
5

5 U.S.C. § 8106(c)(2).

6

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

7

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

8

The job involved sitting or standing while lifting mail and placing it in slots in a mail case and primarily
required fair strength in both hands, frequent lifting with either hand to mid chest level and continuous handling,
grasping, fingering with either hand. Each piece of mail was not to weigh more than 16 ounces.
9

Dr. Gurkoff indicated that appellant could sit for eight hours per day, engage in repetitive hand and elbow
motion for eight hours, walk, and stand or twist for one to two hours, but could not bend, stoop, squat, kneel, or
climb. He stated that appellant could not reach, lift, push or pull with her left arm.

4

The Board notes that, although the August 15, 2006 Form OWCP-5c contains work
limitations which are generally in accordance with the duties of the offered modified position,
Dr. Gurkoff only intended to provide a provisional picture of duties appellant might be able to
perform after certain medical conditions were addressed rather than a clear opinion about what
she was able to do at the time the form was completed.
On the August 15, 2006 Form OWCP-5c, Dr. Gurkoff indicated that there were various
medical problems to be resolved before appellant could return to work. In the portion of the
form asking whether appellant could work eight hours per day with restrictions, Dr. Gurkoff
checked a “no” box and stated, “Unable to stand or lift.…” In the portion of the form asking
when appellant could work eight hours per day, he stated, “probably four to six weeks after left
shoulder repair.”10 In the portion of the form asking whether there were “other medical factors,
equipment or devices which needed to be considered in the identification of a position” for
appellant, Dr. Gurkoff stated, “[ears, nose, throat] -- nasal (gum, teeth in front, unrepaired left
shoulder -- resolving left hip fracture -- knee surgery).”
Dr. Gurkoff did not opine that appellant could return to work in August 2006. He noted
that the August 15, 2006 work restrictions were only provisional, as supported by his reports of
this period. In an August 15, 2006 report, Dr. Gurkoff stated that appellant was not finished with
therapy on her left knee and indicated that she did not yet have “a good strong leg.” Dr. Gurkoff
noted with respect to appellant’s ability to return to work, “I believe that all are aware that the
treatment to the left leg (knee and hip) are not concluded and that the facial/[ears, nose,
throat]/dental issues and her left shoulder are not yet attended or corrected.” On August 31, 2006
Dr. Gurkoff stated that appellant had not finished physical therapy on her lower extremities, was
still walking with a cane at times, did not yet have proposed nose surgery, and did not have her
left shoulder problems addressed. He noted, “I did make for [appellant] a profile of what
restrictions she might have upon return to work, but never was it my understanding that an order
to return would precede her completion of therapy, resolution of the nasal problem, and the
shoulder dysfunction.” In an October 30, 2006 report, Dr. Gurkoff indicated that some of
appellant’s problems had improved, but he did not provide an opinion that appellant could return
to work.
The Board finds that the medical evidence of record does not show that appellant was
capable of performing the modified mail processing clerk position offered by the employing
establishment in August 2006. In determining that appellant was physically capable of
performing the offered position, the Office improperly relied in the opinion of Dr. Gurkoff.
Therefore, the Office improperly terminated appellant’s compensation effective December 14,
2006 on the grounds that she refused an offer of suitable work.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation effective
December 14, 2006 on the grounds that she refused an offer of suitable work.
10

In additional partially legible notes in this section, Dr. Gurkoff made note of ears, nose, throat and dental
problems.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 4, 2007 and December 14, 2006 decisions are reversed.
Issued: April 18, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ST. ALBANS HARBOR HEALTHCARE
SYSTEM, Jamaica, NY, Employer
__________________________________________

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

Docket No. 19-0043
Issued: April 26, 2019

Case Submitted on the Record

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

JURISDICTION
On October 8, 2018 appellant, through counsel, filed a timely appeal from an August 30,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish medical conditions
causally related to the accepted November 14, 2017 employment incident.
FACTUAL HISTORY
On December 14, 2017 appellant, then a 62-year-old cook, filed a traumatic injury claim
(Form CA-1) alleging that on November 14, 2017 he sustained groin and left leg, knee, thigh, and
foot injuries when pushing a loaded food truck weighing approximately 400 to 500 pounds while
in the performance of duty. On the reverse side of the claim form the employing establishment
indicated that he stopped work on the date of injury. It also indicated that appellant was not injured
in the performance of duty, and noted that he developed pain and swelling in his left leg while at
home.
In a report dated November 15, 2017, Dr. Santhosh Alex, an internal medicine specialist,
diagnosed left-sided sciatica and simple bruising.
In a duty status report (Form CA-17) dated December 4, 2017, Dr. Yvonne Venzen, Boardcertified in internal medicine, diagnosed groin pain radiating from left knee due to sciatica. She
indicated that appellant could resume work with restrictions.
In a separate Form CA-17 dated December 4, 2017, Dr. Carlisle L. St. Martin, a neurology
specialist, diagnosed lumbar herniated disc, left tear, and gout. He noted that appellant was not to
return to work.
On December 4, 2017 the employing establishment issued an authorization for
examination and/or treatment (Form CA-16) to Dr. St. Martin.
In a development letter dated December 19, 2017, OWCP requested additional factual and
medical evidence in support of appellant’s claim. It advised him of the type of factual and medical
evidence needed and provided a factual questionnaire for his completion. OWCP afforded
appellant 30 days to submit the requested evidence.
OWCP continued to receive medical evidence. In a magnetic resonance imaging scan
report dated November 17, 2017, Dr. James R. McCleavey, a Board-certified diagnostic
radiologist, indicated impressions of swollen subcutaneous tissue, mild hindfoot valgus, mild
tenosynovitis of the posterior tibialis tendon and of the peroneus brevis, tibiotalar effusion, and
longitudinal interstitial short segment tear of the plantar aponeurosis at the calcaneal base
attachment.
In the attending physician’s report portion of a Form CA-16 dated December 13, 2017,
Dr. St. Martin diagnosed lumbar herniated disc. He indicated that appellant was unable to resume
work.
By letter dated January 11, 2018, the employing establishment controverted appellant’s
claim, contending that his diagnosed conditions were not shown to be a direct result of or
aggravated by the employment environment or factors of his federal employment.
2

In duty status reports (Form CA-17) dated January 8 and 22, 2018, Dr. St. Martin again
diagnosed lumbar herniated disc, left tear, and gout. He also noted that appellant was not to resume
work.
By decision dated January 26, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that his medical conditions were causally related
to the accepted November 14, 2017 employment incident.
On February 9, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In reports dated November 17, 18, 22, and 28 and December 4, 6, and 13, 2017, and
January 8, 16, 20, and 26, 2018, received by OWCP on June 4, 2018, Dr. St. Martin diagnosed
lumbar spine low back pain with multiple herniated nucleus pulposus and left knee and left ankle
derangement. He noted that appellant was totally disabled from work.
In a report dated February 12, 2018, Dr. St. Martin added a diagnosis of left hip
derangement.
In a report dated March 1, 2018, Dr. St. Martin added a diagnosis of a left acetabular
labrum tears along with left-sided hip bursitis. He noted that appellant’s injury occurred at work
because appellant was healthy before the November 14, 2017 employment incident.
A telephonic hearing was held before an OWCP hearing representative on July 6, 2018.
By decision dated August 30, 2018, OWCP’s hearing representative affirmed the
January 26, 2018 decision finding that appellant had not submitted sufficient medical evidence in
which a physician had indicated that he sustained an injury causally related to the accepted
November 14, 2017 employment incident.
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 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.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

3

Id.

4

J.P., Docket No. 18-1165 (issued January 15, 2019); Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55
ECAB 179 (2003).
5
J.P., id; see Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB
530 (2004).

3

In order to determine whether an employee sustained a traumatic 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.6 The second component is whether
the employment incident caused a personal injury and generally can be established only by
medical evidence.7
To establish 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 sufficient to establish such causal relationship.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 incident identified
by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted November 14, 2017 employment incident.
Appellant submitted a series of reports from Dr. St. Martin in support of his claim. In most
of these reports, Dr. St. Martin diagnosed lumbar spine low back pain with multiple herniated
nucleus pulposus and left knee and left ankle derangement, left hip derangement, and left
acetabular labrum tears along with left-sided hip bursitis. However, he did not opine as to the
cause of appellant’s diagnoses and the relationship to the accepted November 14, 2017
employment incident. The Board has held that a report is of no probative value if it does not
contain an opinion on causal relationship.10 Therefore, these reports from Dr. St. Martin are
insufficient to establish the claim.
In his March 1, 2018 report, Dr. St. Martin opined that appellant’s injury occurred at work
because appellant was healthy before the November 14, 2017 employment incident. However, the
mere fact that a condition manifests itself or is discovered after an employment incident is
insufficient to establish causal relationship between the condition and the incident.11 Temporal

6

R.E., Docket No. 17-0547 (issued November 13, 2018); David Apgar, 57 ECAB 137 (2005); Delphyne L.
Glover, 51 ECAB 146 (1999).
7

M.H., Docket No. 18-1737 (issued March 13, 2019); R.E., id.

8

T.H., Docket No. 18-1736 (issued March 13, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L.
Fowler, 45 ECAB 365 (1994).
10

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

11

K.L., Docket No. 18-1029 (issued January 9, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017).

4

relationship alone will not suffice for purposes of establish causal relationship.12 Additionally, a
mere conclusion without necessary rationale explaining why the physician believes that a
claimant’s accepted employment incident resulted in the diagnosed condition is insufficient to
establish appellant’s claim.13 Dr. St. Martin did not provide a medical opinion based upon a
complete factual and medical background, and supported by medical rationale, which explained
causal relationship between the diagnosed conditions and the accepted employment incident.14 His
reports are therefore insufficient to establish appellant’s claim.
OWCP also received a report containing the results of diagnostic testing dated
November 17, 2017 from Dr. McCleavey which noted multiple diagnosed conditions. However,
diagnostic studies lack probative value as they do not address whether the employment incident
caused any of the diagnosed conditions.15
Herein, the record lacks rationalized medical evidence establishing causal relationship
between the accepted November 14, 2017 employment incident and appellant’s diagnosed medical
conditions. Thus, the Board finds that appellant has not met his burden of proof.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted November 14, 2017 employment incident.

12

Id.

13

D.O., Docket No. 18-0086 (issued March 28, 2018).

14

Supra note 9.

15

J.S., Docket No. 17-1039 (issued October 6, 2017).

16

A properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018);
N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Santa Rosa, CA, Employer
__________________________________________

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Appearances:
William H. Brawner, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1644
Issued: August 17, 2016

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 July 28, 2015 appellant, through counsel, filed a timely appeal from a June 17, 2015
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s eligibility
for wage-loss compensation and medical benefits effective June 17, 2015 as he had no disability
or need for medical treatment due to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 16, 2013, the
Board set aside a November 14, 2012 nonmerit decision of OWCP denying appellant’s request
for reconsideration under 5 U.S.C. § 8128(a).3 The Board concluded that appellant had raised a
new legal argument and had submitted new and relevant factual evidence supporting his
contention. The Board remanded the case for OWCP to conduct a merit review.
On a later appeal, by decision dated April 23, 2014, the Board set aside an October 3,
2013 OWCP decision denying appellant’s emotional condition claim as the Board found he had
established a compensable work factor.4 The Board remanded the case for OWCP to analyze the
medical evidence to determine whether appellant had sustained an emotional condition due to the
compensable employment factor. The facts and circumstances as set forth in the prior decisions
are incorporated herein by reference. The facts relevant to the issue at hand are set forth below.
On March 11, 2011 appellant, then a 48-year-old supervisory air traffic control specialist,
filed an occupational disease claim (Form CA-2) alleging that he sustained stress causally related
to factors of his federal employment.
In a report dated February 23, 2012, Dr. Donald T. Apostle, a Board-certified
psychiatrist, diagnosed anxiety and depression due to “interpersonal relationships and teamwork
on the job.” On July 16, 2012 he diagnosed situational adjustment disorder with anxiety and
depression. Dr. Apostle noted that appellant was “declared disabled.”
Upon remand from the Board, OWCP prepared a statement of accepted facts on
September 24, 2014. It listed as a compensable work factor that appellant began working in
March 2008 in a location that handled grievances under a national collective bargaining
agreement. He had a contentious relationship with two union representatives with whom he had
to negotiate. One of the union representatives told appellant that he made her feel like she was
being raped.
In a report received December 15, 2014, Dr. Sara Epstein, Board-certified in psychiatry
and psychosomatic medicine and a treating physician, reviewed the statement of accepted facts
and the Board’s April 23, 2014 decision. She noted that the union representative, Ms. P., “often
expressed herself in hyperbole and metaphor, which were unfortunately taken quite literally by
the department on up the ranks, resulting in investigations, expense, and trauma for all
concerned.” Dr. Epstein stated, “It was ultimately determined that none of the rape/beating-up
3

Docket No. 13-400 (issued May 16, 2013).

4

Docket No. 14-0224 (issued April 23, 2014).

2

allegations merited a security investigation-but not before much furor, effort, and time were
spent on these catastrophizations.” She noted that Ms. P. had interfered with appellant’s
performance of his job duties as manager. Dr. Epstein diagnosed major depression and
posttraumatic stress disorder (PTSD). She attributed the diagnosed conditions to appellant’s
“workplace conflicts with [Ms. P.].” Dr. Epstein found that his depression and PTSD would
interfere with his managerial duties. She opined, “[Appellant] should never again work in Air
Traffic Control. He is too fearful of all that can go wrong due to personalities losing focus on the
main job of protecting passengers.”
By letter dated December 22, 2014, appellant’s counsel asserted that Dr. Epstein’s report
established that appellant was disabled as a result of his employment-related emotional
condition. He also contended that the February 23 and July 16, 2012 reports from Dr. Apostle
supported Dr. Epstein’s opinion.
On January 14, 2015 OWCP referred appellant to Dr. Sam Michael Sasser, a Boardcertified psychiatrist, for a second opinion examination.5 In a report dated February 4, 2015,
Dr. Sasser discussed appellant’s work history and reviewed the statement of accepted facts. He
noted that appellant had received medical treatment and the medication Lexapro for anxiety in
2011 and 2012 and retired in July 2012. Dr. Sasser opined:
“[Appellant] had discontinued his Lexapro and is currently taking no medications
for anxiety or depression. He denied any sense of need for medication or
treatment as these conditions were no longer present. [Appellant’s] anxiety levels
did increase, however, in circumstances like today’s evaluation as he revisited
some of the issues and conflicts and contentions he had in his workplace. The
theme-associated anxiety, however, was not disruptive to his ability to function or
to participate in the evaluation.”
On examination Dr. Sasser found that appellant was not in any emotional or physical
distress. He stated, “On analog scales, where zero is absent and 100 extreme, he marked
depression at 20 and anxiety at 64. The elevation on anxiety was said to be because of the topic
and not because of any ongoing stress or anxiety disorder.” Dr. Sasser diagnosed an
employment-related adjustment disorder with anxiety that had resolved. He found that conflicts
with union officials together with noncompensable work factors caused a “reactive emotional
state that was treated by [appellant’s] physician with the medicine that excluded him from being
able to participate in his job duties. That emotional state is no longer present.” Dr. Sasser found
that he had no disability. In a February 6, 2015 work capacity evaluation, he indicated that
appellant could return to his usual employment.
In a supplemental report dated March 22, 2015, Dr. Epstein diagnosed major depression
and PTSD as a result of appellant’s “contentious relationship with his subordinate employees
without any other intervening causation.” She also diagnosed sleep apnea, high blood pressure,
5

On February 6, 2015 the employing establishment challenged the statement of accepted facts, contending that
appellant’s primary responsibility was not union relations but instead operations and that, when he was promoted to
manager, Ms. P. was a union representative rather than the union president. In its June 17, 2015 decision, OWCP
noted that any such errors were immaterial and would not affect the outcome of the case.

3

asthma aggravated by stress. Dr. Epstein related, “[Appellant] continues to be disabled as a
direct result of the harm inflicted by his contentious relationship with subordinate employees.
There are no nonindustrial factors of causation.” She recommended psychiatric treatment and
medication.
By decision dated June 17, 2015, OWCP accepted that appellant sustained adjustment
disorder with mixed anxiety and depressed mood that had resolved. It found that Dr. Sasser’s
February 4, 2015 report represented the weight of the evidence and established that appellant had
no residuals of his condition.
On appeal counsel argues that Dr. Epstein’s opinion is entitled to more weight than
Dr. Sasser’s as Dr. Epstein is certified in psychosomatic medicine. He asserted that OWCP did
not meet its burden of proof to terminate benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.9
ANALYSIS
On June 17, 2015 OWCP accepted appellant’s claim for an adjustment disorder, as had
resolved based on the February 4, 2015 report from Dr. Sasser. Its acceptance of a claim for a
specified period does not shift the burden of proof to the claimant to terminate benefits.10 It is
OWCP’s burden to establish that appellant had no residuals from the accepted injury.11
In a report dated February 4, 2015, Dr. Sasser reviewed the statement of accepted facts
and discussed appellant’s history of treatment for anxiety in 2011 and 2012. He noted that
6

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

7

Gewin C. Hawkins, 52 ECAB 242 (2001).

8

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

9

Id.

10

I.M., Docket No. 14-564 (issued July 10, 2014). See Elsie L. Price, 54 ECAB 734 (2003).

11

See id.; J.S, Docket No. 13-1678 (issued April 3, 2014); R.W., Docket No. 13-1420 (issued
December 11, 2013). The record does not indicate that appellant received wage-loss compensation.

4

appellant was not currently taking any medication or receiving treatment for depression or
anxiety, and that he did not believe that he continued to experience either condition. Dr. Sasser
diagnosed a resolved adjustment disorder with anxiety due to conflicts with union officials in
combination with noncompensable work factors. He opined that appellant had no further
disability or residuals of his adjustment disorder with anxiety and could resume his usual
employment. Dr. Sasser provided a thorough review of the factual and medical background and
accurately summarized the relevant medical evidence. Moreover, he provided detailed findings
on examination and reached conclusions regarding appellant’s condition which comported with
his findings.12 Dr. Sasser explained that appellant had no further symptoms on examination or
complaints of a continued employment-related condition. Consequently, his opinion constitutes
the weight of the evidence and establishes that appellant had no further condition or disability
due to his accepted condition of an adjustment disorder as of February 4, 2015.
The remaining evidence is insufficient to show that appellant had any condition or
disability after February 4, 2015. Dr. Apostle’s reports address his medical condition in 2012,
and thus are not probative in determining the extent of any condition in 2015. On December 15,
2014 Dr. Epstein diagnosed major depression and PTSD due to appellant’s conflicts at work with
Ms. P. in her position as union representative. She found that he should no longer work in his
usual employment due to his fear of what could go wrong if his coworkers did not concentrate on
work. Dr. Epstein did not specifically attribute appellant’s disability to a compensable work
factor but instead opined that he was afraid that actions by his coworkers would jeopardize the
safety of air passengers, which has not been accepted as a compensable work factor.
In a supplemental report dated March 22, 2015, Dr. Epstein diagnosed major depression
and PTSD arising from appellant’s management of his subordinates. She further found that he
had a stress-related aggravation of sleep apnea, high blood pressure, and asthma. Dr. Epstein
asserted that appellant remained disabled “as a direct result of the harm inflicted by his
contentious relationship with subordinate employees.” She, however, did not provide any
rationale for her finding that appellant was disabled from employment. A physician’s opinion on
causal relationship between a claimant’s disability and an employment injury is not dispositive
simply because it is rendered by a physician. To be of probative value, the physician must
provide rationale for the opinion reached. Where no such rationale is present, the medical
opinion is of diminished probative value.13
On appeal counsel contends that Dr. Epstein’s opinion is entitled to more weight than that
of Dr. Sasser’s as Dr. Epstein is certified in psychosomatic medicine. He maintains that OWCP
failed to meet its burden of proof to terminate benefits. As discussed, however, Dr. Epstein did
not provide rationale for her disability finding and thus her opinion is of little probative value.14
OWCP properly found that appellant was not entitled to compensation for disability after
February 4, 2015, the date of Dr. Sasser’s report.

12

See Pamela K. Guesford, supra note 8.

13

See L.W., Docket No. 14-0559 (issued July 24, 2015); Jean Culliton, 47 ECAB 728 (1996).

14

See J.H., Docket No. 15-0923 (issued September 15, 2015); Brenda L. Dubuque, 55 ECAB 212 (2004).

5

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 met its burden of proof to terminate appellant’s entitlement
to compensation benefits effective June 17, 2015.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
_________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-2075
Issued: April 20, 2012

Case Submitted on the Record

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

JURISDICTION
On September 27, 2011 appellant filed a timely appeal of a July 6, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied his request for
reconsideration without merit review. Because more than one year elapsed from the most recent
merit decision dated February 4, 2011 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On November 18, 2010 appellant, then a 48-year-old mail handler, filed an occupational
disease claim for chronic pain in both shoulders due to unloading containers from trucks at work.
He became aware of the condition on July 25, 2010 and realized it was caused or aggravated by
his work on November 1, 2010. Appellant stopped work on November 18, 2010. He submitted
work restrictions from a physician’s assistant.
By decision dated February 4, 2011, OWCP denied appellant’s claim finding that he did
not submit sufficient medical evidence to establish that work factors caused or aggravated his
shoulder condition.
On May 2, 2011 appellant filed a claim for recurrence of disability on December 1, 2010.
In a letter dated May 18, 2011, OWCP notified appellant that his claim was denied and it could
not consider a recurrence on a denied claim. It advised appellant to pursue his appeal rights.
On May 24, 2011 appellant requested reconsideration. OWCP received a November 16,
2010 report from a physician’s assistant.
By decision dated July 6, 2011, OWCP denied appellant’s request for reconsideration
without a review of the merits as his request neither raised substantial legal questions nor
included new and relevant evidence and was insufficient to warrant merit review of its prior
decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA, OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
3

20 C.F.R. § 10.606(b).

4

Id.

2

ANALYSIS
Appellant disagreed with OWCP’s February 4, 2011 decision, which denied his claim on
the grounds that the medical evidence was insufficient to establish that employment factors
caused or aggravated his claimed condition. In the present case, appellant has not shown that
OWCP erroneously applied or interpreted a specific point of law nor has he advanced a relevant
legal argument not previously considered by OWCP. The evidence he submitted is not pertinent
to the underlying issue in this appeal, which is medical in nature, whether he has established an
injury in the performance of duty.
In his May 24, 2011 request for reconsideration, appellant did not assert or show any
particular error of law and he did not advance a legal argument. He submitted a November 16,
2010 report from a physician’s assistant. The Board notes that, while the underlying issue of
causal relationship is medical in nature, section 8101(2) of FECA provides that the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by the
applicable state law.5 Consequently, medical opinion, in general, can only be given by a
qualified physician and lay individuals such as physicians’ assistants are not competent to render
a medical opinion under FECA.6 As the report from a physician’s assistant does not constitute
medical evidence under section 8101(2) it is not relevant to the underlying medical issue and is
not a basis for reopening the claim for a merit review.
Appellant did not submit evidence or argument showing that OWCP erroneously applied
or interpreted a specific point of law, did not advance a relevant legal argument not previously
considered by OWCP or submit relevant and pertinent new evidence not previously considered
by OWCP. Thus, OWCP properly denied his reconsideration request.
On appeal, appellant generally asserts that his condition is work related. Appellant’s
belief that his condition is work related is not relevant as it is not medical evidence. The Board
has held that the submission of evidence which does not address the particular issue involved in
the case does not constitute a basis for reopening the claim.7 Appellant also provided new
medical evidence on appeal. However, the Board has no jurisdiction to review this evidence for
the first time on appeal.8
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).

5

5 U.S.C. § 8101(2).

6

E.K., Docket No. 09-1827 (issued April 21, 2010).

7

See David J. McDonald, 50 ECAB 185 (1998).

8

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

3

ORDER
IT IS HEREBY ORDERED THAT the July 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 20, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
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)
)
)
)
)
)

Docket No. 13-1395
Issued: April 23, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On May 28, 2013 appellant, through her attorney, filed a timely appeal from a
February 1, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration. The Board docketed the appeal as No. 13-1395.
The Board notes that the most recent merit decision issued by OWCP is an August 9,
2012 decision denying modification of the denial of appellant’s claim for a recurrence of
disability due to appellant’s accepted employment-related injury.1 By letter dated September 27,
2012, appellant’s attorney requested reconsideration of the August 9, 2012 decision denying her
recurrence claim. OWCP did not issue a decision on appellant’s request for reconsideration until
February 1, 2013, more than four months after the request was made. Its procedures provide:
“When a reconsideration decision is delayed beyond 90 days, and the delay
jeopardizes the claimant’s right to review of the merits of the case by the Board,
OWCP should conduct a merit review. That is, the basis of the original decision
and any new evidence should be considered and, if there is no basis to change the
1

OWCP accepted appellant’s occupational disease claim for a right shoulder and upper arm strain resulting from
her duties as a tax technician.

original decision, an order denying modification (rather than denying the
application for review) should be prepared. There is no obligation to conduct a
merit review on insufficient evidence if the maximum 180-day time limit for
requesting review by the Board will have expired within the 90-day period
following OWCP’s receipt of the claimant’s reconsideration request.”2
The Board, having duly considered the matter, finds that OWCP’s delay of more than
four months in issuing a decision on appellant’s reconsideration request effectively precluded her
from appealing OWCP’s most recent merit decision to the Board.3 Had OWCP acted upon her
request within 90 days, she would have been able to seek review of its August 9, 2012 merit
decision before the Board.4
Accordingly, the case will be remanded to OWCP to issue an appropriate decision on the
merits of the claim in order to preserve appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the February 1, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: April 23, 2014
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011).

3

See 20 C.F.R. §§ 501.2(c) and 501.3. For final adverse OWCP decisions issued on or after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
4

See Geoma R. Munn, 50 ECAB 242 (1999); Debra E. Stoler, 43 ECAB 561 (1992) (remanding cases for merit
review where OWCP delayed issuance of reconsideration decisions).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
HAMPTON MEDICAL CENTER, Hampton, VA, )
Employer
)
__________________________________________ )
A.H., Appellant

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

Docket No. 18-1264
Issued: February 11, 2019

Case Submitted on the Record

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

JURISDICTION
On June 8, 2018 appellant filed a timely appeal from a May 16, 2018 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated June 14, 2017, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 1, 2016 appellant, then a 36-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that he injured his right knee on July 18, 2016, when conducting a
foot patrol while in the performance of duty. He noted that the sidewalk was uneven and sinking
and that one of his legs dropped lower than the other resulting in a meniscal tear.
On July 29, 2016 Dr. Philip Lenoach, a Board-certified orthopedic surgeon, examined
appellant when he presented complaining of right knee pain and loss of range of motion after
hyperextending his right knee while walking on uneven pavement on July 18, 2016. He reviewed
a magnetic resonance imaging (MRI) scan of appellant’s right knee and diagnosed a tear of the
medial meniscus.
On August 9, 2016 the employing establishment issued appellant a properly completed
authorization for examination and/or treatment (Form CA-16).
Appellant provided a report dated August 16, 2016 from Dr. Jon H. Swenson, a Boardcertified orthopedic surgeon, noting that on July 18, 2016 appellant was walking on an uneven
sidewalk and developed swelling and burning pain in his knee. Dr. Swenson reviewed appellant’s
MRI scan of the right knee, which demonstrated a medial meniscal tear. He noted a possible
arthroscopic surgery.
By development letter dated September 12, 2016, OWCP advised appellant that when his
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and, since the employing establishment did not controvert continuation of pay or challenge
the case, a limited amount of medical expenses was administratively approved. It noted that it
reopened his claim because he requested authorization for surgery. OWCP informed appellant of
the type of factual and medical evidence necessary to establish his claim and afforded him 30 days
to submit the necessary evidence.
Appellant provided an additional note from Dr. Swenson dated September 1, 2016.
Dr. Swenson reported that appellant’s injury occurred on July 18, 2016 and that the mechanism of
injury was walking on an uneven sidewalk and the subsequent development of swelling and
burning pain in his knee. He diagnosed a medial meniscal tear in appellant’s right knee and
recommended surgery.
By decision dated October 13, 2016, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish that an employment incident
occurred as alleged, as he had not completed the factual questionnaire.
On November 11, 2016 appellant requested reconsideration. In support of this request, he
provided a completed questionnaire dated October 14, 2016. Appellant noted that he was
conducting a foot patrol on employing establishment property. He reported that he traversed a
staircase and the connecting sidewalk, which were collapsing or sinking unevenly into the ground.
Appellant felt a slight twist then experienced burning and pain in his right knee. He further
indicated that he reported his injury to his superior, his right knee became swollen and he could
not bear weight on it, but remained on duty for an additional 10 hours. Appellant noted that he

2

was unable to walk for three days and treated his knee with rest, ice, and elevation. When he felt
able to drive he sought medical attention.
By decision dated February 1, 2017, OWCP modified its October 25, 2016 decision to
reflect that appellant had established the factual basis for his traumatic injury claim, but that he
had failed to submit medical evidence establishing causal relationship between his diagnosed
condition and his accepted July 18, 2016 employment incident.
On March 24, 2017 appellant requested reconsideration. He contended that he had
provided the required medical opinion evidence. Dr. Swenson completed a report on February 28,
2017 and described appellant’s history of walking on uneven ground and injuring his right knee.
He concluded, “It is my medical opinion, that [appellant’s] current right knee complaint and MRI
[scan] confirmation of a medial meniscal tear is directly related to his injury of July 18, 2016.”
By decision dated June 14, 2017, OWCP denied modification of the February 1, 2017
decision and found that Dr. Swenson had failed to provide medical rationale explaining how
walking on uneven ground caused or contributed to appellant’s right knee medial meniscal tear.
On May 10, 2018 appellant again requested reconsideration. He resubmitted a copy of
Dr. Swenson’s February 28, 2017 report.
By decision dated May 16, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim. It found that he had not submitted relevant and pertinent new evidence not
previously considered by OWCP in support of his request for reconsideration.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.2
Section 8128(a) of FECA3 vests OWCP with discretionary authority to determine whether to
review an award for or against compensation. OWCP may review an award for or against payment
of compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (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.5 If

2

20 C.F.R. § 10.607(a).

3

5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
4

Id.; L.S., Docket No. 18-0811 (issued November 13, 2018).

5

20 C.F.R. § 10.606(b)(3); see also L.S., id.

3

the request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP
will deny the request for reconsideration without reopening the case for review on the merits.6
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.7 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.8 When reviewing an
OWCP decision denying merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(3) to appellant’s application for
reconsideration and any evidence submitted in support thereof.9
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also held
that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case. While the reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.10
ANALYSIS
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).
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, he was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board notes that the underlying issue in this case is whether appellant sustained a right
knee injury causally related to the accepted July 18, 2016 employment incident. That is a medical
issue which must be addressed by relevant medical evidence not previously considered.11
Appellant resubmitted Dr. Swenson’s February 28, 2017 report. The Board notes that this report
was previously addressed and evaluated by OWCP in its June 14, 2017 merit decision. The Board
has held that the submission of evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case.12

6

Id. at § 10.608(b).

7

J.F., Docket No. 17-1508 (issued March 28, 2018).

8

See supra note 3. See also L.S., supra note 4; Mark H. Dever, 53 ECAB 710 (2002).

9

L.S., supra note 4; Annette Louise, 54 ECAB 783 (2003).

10

L.S., supra note 4; M.E., 58 ECAB 694 (2007).

11

K.V., Docket No. 18-0723 (issued November 9, 2018).

12

Id.

4

The Board accordingly finds that 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.13
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 May 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 11, 2019
Washington, DC

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

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

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

13

The Board notes that the employing establishment issued a Form CA-16 authorizing medical treatment. A
properly executed CA-16 form authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim.
Although OWCP denied appellant’s claim for injury, it did not address whether he is entitled to reimbursement of
medical expenses pursuant to the Form CA-16. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003);
P.R., Docket No. 18-0737 (issued November 2, 2018); F.M., Docket No. 17-1547 (issued November 2, 2018); S.G.,
Docket No. 18-0209 (issued October 4, 2018).

5