United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Dutch John, Utah,
Employer
__________________________________________
Appearances:
David J. Holdsworth, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-1028
Issued: June 20, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On April 23, 2018 appellant, through counsel, filed a timely application for review from a
March 19, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 18-1028.2
By notice dated July 27, 2017, OWCP advised appellant of its preliminary determination
that she had received a $41,516.31 overpayment of compensation for the period from January 7,
2010 through July 22, 2017 because she received prohibited dual benefits in the form of wage-loss
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

Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. § 501.5(b).
By order dated November 19, 2018, the Board exercised its discretion and denied the request, finding that the
arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral
Argument, Docket No. 18-1028 (issued November 19, 2018).

compensation under the Federal Employees’ Compensation Act3 (FECA) and from the Social
Security Administration (SSA) without an appropriate offset. It also made a preliminary
determination that she was at fault in the creation of the overpayment as she was aware or should
have reasonably been aware that her compensation payments had been paid incorrectly. OWCP
requested that appellant complete an overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documents. Additionally, it notified her that, within 30 days of the
date of the letter, she could request a telephone conference, a final decision based on written
evidence, or a prerecoupment hearing by completing an attached overpayment action request.
On August 8, 2017 appellant authorized her son D.L. to represent her. She indicated that
his address of record was in Reno, Nevada. Appellant and her representative forwarded an
overpayment action request dated September 1, 2017, received by OWCP on September 5, 2017,
in which the box requesting a telephone conference was checked.4
On November 13, 2017 OWCP issued a revised preliminary overpayment determination.
The only change to the July 27, 2017 determination was that the amount of the overpayment was
modified to $14,420.81. Appellant was again provided a Form OWCP-20 and an overpayment
action request and was again afforded 30 days from the date of the preliminary determination, as
determined by the postmark of her submission. A copy of the determination was sent to her
representative. On November 28, 2017 the copy of the November 13, 2017 preliminary
determination, addressed to appellant’s representative at his address of record in Reno, Nevada
was returned to OWCP as undeliverable, stating “not at this address.”
On December 12, 2017 appellant’s representative telephoned OWCP. He indicated that he
had not received a copy of the November 13, 2017 preliminary determination, noting that appellant
had just given her copy to him. He requested additional time to submit additional evidence.
OWCP responded, “So I gave him until December 26, and advised him that I can’t give him
additional time beyond the stated 30 days if he wants to request a hearing.”
In a Form OWCP-20 dated December 14, 2017, received by OWCP on December 18,
2017, appellant and her representative again requested a telephone conference, disagreed with the
fact of overpayment, disagreed with the amount of the overpayment, and requested waiver of
recovery of the overpayment. The attached OWCP-20 indicated that there had been no change
from the previously submitted questionnaire. Appellant indicated that she had requested counsel
to assist in this matter.
By letter dated December 19, 2017, counsel again requested a telephone conference. He
attached an overpayment action request, also indicating that he was challenging fact and amount
of the overpayment and requesting waiver.
By decision dated March 19, 2018, OWCP finalized the preliminary determination of a
$14,420.81 overpayment of compensation. It found appellant at fault because she had not reported
3

5 U.S.C. § 8101 et seq.

4
Appellant’s representative also contested fact of overpayment. The Form OWCP-20 and financial information
were provided.

2

that she was receiving SSA payments as part of an annuity for federal service. As such, she was
found to be not entitled to waiver of recovery of the overpayment. OWCP required repayment of
the overpayment by deducting $300.00 every 28 days from appellant’s continuing FECA
compensation payments.
OWCP is required to follow certain procedures in overpayment cases. Section 10.431(a)
of OWCP regulations provides that, before seeking recovery of an overpayment, it will advise a
claimant in writing that the overpayment exists, and the amount of the overpayment.5 The written
notification must include a preliminary finding regarding whether the individual was at fault in the
creation of the overpayment.6 Additionally, OWCP is obliged to advise the individual of his or
her right to inspect and copy the government records relating to the overpayment.7 Lastly, the
preliminary notice must inform the individual of his or her right to challenge the fact or amount of
the overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.8 The
recipient of the alleged overpayment may present evidence in response to OWCP’s preliminary
notice, either in writing or at a prerecoupment hearing requested within 30 days.9
The Board finds that, under the facts presented, appellant was not provided the required
opportunity to provide testimonial evidence regarding the alleged overpayment.10 On
November 13, 2017 OWCP informed appellant of its preliminary determination that she received
a $14,420.81 overpayment of compensation and that she was at fault in the creation of the
overpayment and thus not entitled to waiver of recovery of the overpayment. It included her
procedural rights, including the right to request a telephone conference within 30 days. The record
supports that a copy of the November 13, 2017 preliminary determination was forwarded to
appellant’s representative D.L. at his address of record, however, this was returned to OWCP as
undeliverable. When D.L. notified OWCP by telephone on December 12, 2017 that he had not
received the November 13, 2017 preliminary determination until that day when appellant furnished
a copy, OWCP advised him that he was afforded until December 26, 2017 to submit additional
information. While the telephone memorandum of record stated “(I) advised him that I can’t give
him additional time beyond the stated 30 days if he wants to request a hearing,” the statement is
unclear as to when the allotted 30 days began. On an overpayment action request form dated
December 14, 2017, received by OWCP on December 18, 2017, appellant again requested a
telephone conference.
Accordingly, for the foregoing reasons, the March 19, 2018 decision will be set aside and
the case will be remanded to OWCP to provide appellant her right to a telephone conference.
5

20 C.F.R. § 10.431(a).

6

Id. at § 10.431(b).

7

Id. at § 10.431(c).

8

Id. at § 10.431(d).

9

Id. at § 10.432.

10

See I.R., Docket No. 18-0088 (issued April 9, 2018).

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Following this and such other development deemed necessary, OWCP shall issue an appropriate
decision.
IT IS HEREBY ORDERED THAT the March 19, 2018 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: June 20, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, COEUR D’ALENE
POSTAL ANNEX, Coeur d’Alene, ID, Employer
__________________________________________

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

Docket No. 19-0552
Issued: September 6, 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 January 14, 2019 appellant, through counsel, filed a timely appeal from a December 3,
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.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective February 21, 2018; and (2) whether
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.

appellant has met her burden of proof to establish continuing employment-related disability or
residuals after February 21, 2018.
FACTUAL HISTORY
On February 10, 2017 appellant, then a 55-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on January 30, 2017, she slipped on a linoleum floor inside
the annex and strained her left knee and ankle while in the performance of duty. OWCP accepted
the claim for left ankle and knee strains.3 On May 4, 2017 OWCP expanded acceptance of the
claim to include a left knee medial meniscus tear, and on September 25, 2017 it accepted strain of
other muscles and tendons at lower left leg and sprain of unspecified ligament of the left ankle.
Appellant stopped work on January 30, 2017, and has not returned. OWCP paid wage-loss
compensation on the supplemental rolls effective March 18, 2017, and on the periodic rolls
effective April 30, 2017.
Appellant continued to receive medical care from her treating physicians, Dr. Brian S.
Mitchell, Board-certified in orthopedic surgery, and Dr. Patrick Greis, Board-certified in
orthopedic surgery and sports medicine. She also continued to receive physical therapy for her
accepted conditions.
On June 22, 2017 OWCP referred appellant to Dr. Kenneth Bode, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the status of the accepted
conditions and associated work restrictions.
In a report dated September 21, 2017, appellant’s attending physician Dr. Stephanie Stoke,
Board-certified in occupational medicine, related left knee findings on examination, noting that
she had full range of motion of the knee, but had tenderness over the patellar tendon, pain along
the medial aspect on valgus stress testing, and pain with Lockman’s maneuver. She related a
diagnosis of tear of the medial meniscus left knee and recommended that appellant return to work
for four hours a day with restrictions. Dr. Stoke also completed a duty status report (Form CA17) on September 21, 2017 noting appellant’s work restrictions and that she could return to work
for four hours a day.
In an October 13, 2017 second opinion examination report, Dr. Bode noted appellant’s
history of injury and treatment. He performed a physical examination and found that she had no
findings of posterior horn medial meniscal tear despite findings on a magnetic resonance imaging
(MRI) scan. Dr. Bode found osteoarthritis, lateral iliotibial (IT) band tendinitis, and decreased
range of motion. He explained that appellant had experienced a temporary aggravation of left knee
osteoarthritis. Dr. Bode determined that no further treatment was warranted, other than a home
exercise program, over-the-counter medications, and activity modification. He noted that, based
on her decreased range of motion and her osteoarthritis, appellant would only be able to perform
light-duty work on a permanent basis.

3
Appellant had preexisting or concurrent medical conditions, including a gunshot wound to left knee with
reconstructive surgery in 2005.

2

On October 23, 2017 appellant accepted an offer of modified assignment as a limited-duty
rural carrier associate.
On October 25, 2017 OWCP requested that Dr. Bode clarify his opinion with regard to
whether appellant’s permanent work restriction was due to the accepted work-related conditions
or the preexisting knee injury, and whether the temporary aggravation of osteoarthritis had
resolved.
In a November 30, 2017 addendum report, Dr. Bode opined that appellant’s current
symptoms were due to preexisting osteoarthritis of the left knee, and not the accepted work-related
conditions. He explained that the employment injury temporarily aggravated appellant’s arthritis,
but the aggravation had resolved.
In a report dated November 30, 2017, Dr. Stoke noted that appellant was seen for follow
up of the left knee medial meniscus tear following a return to limited-duty employment. She
indicated that appellant’s condition had worsened since she returned to work, four hours per day,
five days per week. Dr. Stoke completed a duty status report (Form CA-17) limiting appellant to
work four hours per day, five days per week, and recommended ongoing physical therapy and
hydrotherapy.4
On January 16, 2018 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits, as the evidence of record established that she no longer had employmentrelated residuals or disability due to her accepted work-related medical conditions. It afforded her
30 days to submit additional evidence or argument, in writing, if she disagreed with the proposed
termination of benefits.
OWCP subsequently received a December 28, 2017 progress note from Dr. Stoke who
indicated that she had reviewed Dr. Bode’s October 13, 2017 report. Dr. Stoke noted Dr. Bode’s
diagnosis of osteoarthritis and IT band tendinitis, and opined that no further medical treatment was
recommended, but additional treatment would be needed in the future.
In a January 11, 2018 progress note, Dr. Stoke noted that appellant had obvious gross
deformity of the left knee due to multiple reconstructive surgeries, and diagnosed tear of the medial
meniscus of the left knee, current, unspecified tear-type, initial encounter. She recommended that
appellant continue her home exercise program and work restrictions. In January 25 and
February 13, 2018 progress notes, Dr. Stoke advised that appellant planned to pursue her claim
and continue to gradually return to work. She indicated that appellant was likely to be released to
full-duty work over the next couple of months.
OWCP received duty status reports (Form CA-17) dated December 20, 2017 and
January 11 and 25, and February 13, 2018. Dr. Stoke listed the diagnosis as meniscus tear due to
injury, but also listed a “prior knee injury” as a disabling condition.

4
On December 4, 2017 OWCP requested that Dr. Stoke review Dr. Bode’s report and address whether she agreed
with the findings regarding appellant’s accepted conditions. However, Dr. Stoke did not respond.

3

On February 15, 2018 OWCP received a January 30, 2018 statement from appellant
disputing the proposed termination of benefits. Appellant argued that Dr. Bode was not an
appropriate specialist and did not conduct a thorough examination. She also argued that she was
making progress, but her condition had not yet resolved. Appellant indicated that the employing
establishment had stopped providing her with limited-duty work because of OWCP’s proposed
termination of benefits.
In a March 12, 2018 duty status report (Form CA-17) Dr. Stoke released appellant to work
on March 17, 2018 without restrictions.
By decision dated March 22, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective February 21, 2018. It found that the opinion of Dr. Bode established
that appellant had no further residuals or disability due to her accepted employment-related
injuries.
On April 12, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
During the telephonic hearing, held on September 18, 2018, appellant indicated that she
was released to work full time on March 17, 2018.
OWCP thereafter received a June 15, 2018 report from Dr. Lucas Anderson, a Boardcertified orthopedic surgeon, who diagnosed primary osteoarthritis and degenerative joint disease
of the left knee. Dr. Anderson noted that appellant reported pain of two years duration and a work
injury on January 30, 2017. He indicated that appellant would need a total knee replacement at
some point.
By decision dated December 3, 2018, OWCP’s hearing representative affirmed the
March 22, 2018 decision. She found that the opinion of Dr. Bode constituted the weight of the
evidence and established that appellant had no further disability or residuals of her accepted
employment-related conditions.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.5 After it has determined that an employee
has a disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

5

M.M., Docket No. 17-1264 (issued December 3, 2018).

4

the employment.6 Its burden of proof 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.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 21, 2018.
On October 13, 2017 Dr. Bode, an OWCP second opinion physician, noted appellant’s
history of injury and treatment and provided physical examination findings. He noted that
appellant had no findings of posterior horn medial meniscal tear, despite findings on MRI scan,
and explained that appellant had a temporary aggravation of left knee osteoarthritis and no further
treatment was warranted. Dr. Bode advised that appellant would only be able to perform light
duty work, as she had osteoarthritis.
On October 25, 2017 OWCP requested that Dr. Bode clarify his opinion with regard to
whether appellant’s permanent work restriction was due to the accepted work-related conditions,
or the preexisting knee condition, and whether appellant’s temporary aggravation of osteoarthritis
had resolved. In a November 30, 2017 addendum, Dr. Bode explained that appellant’s current
symptoms were due to preexisting osteoarthritis of the left knee, not the accepted employmentrelated conditions. He further opined that the employment injury had temporarily aggravated
appellant’s arthritis, but the aggravation had resolved.
The Board finds that Dr. Bode provided a thorough report, with rationale to explain his
findings.10 Consequently, Dr. Bode’s opinion is entitled to the weight of the evidence, and
establishes that appellant no longer had residuals or disability due to her January 30, 2017 accepted
employment injury.
The evidence submitted by appellant prior to termination of benefits is insufficient to
establish that she no longer had disability or residuals due to her accepted employment-related
conditions. Dr. Stoke noted that appellant was seen in follow up for left knee medial meniscus
tear. On physical examination she noted that appellant had full range of motion of the left knee,
6

E.B., Docket No. 18-1060 (issued November 1, 2018).

7

G.H., Docket No. 18-0414 (issued November 14, 2018).

8

L.W., Docket No. 18-1372 (issued February 27, 2019).

9

R.P., Docket No. 18-0900 (issued February 5, 2019).

10

O.S., Docket No. 18-1549 (issued February 7, 2019).

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but subjective pain complaints. Dr. Stoke initially allowed appellant to return to work for four
hours a day, with restrictions. She also provided a January 25, 2018 progress note advising that
appellant was likely to be released to full duty over the next couple of months. A March 12, 2018
duty status report (Form CA-17) released appellant to work without restrictions. OWCP also
received duty status reports dated December 20, 2017, January 11 and 24, and February 13, 2018
from Dr. Stoke which noted the diagnoses and a prior disability. The Board finds that Dr. Stoke’s
reports are of limited probative value. These reports listed a diagnosis of a meniscus tear due to
injury, but also listed a “prior knee injury” as a disabling condition. Dr. Stoke failed to specifically
address whether appellant’s current left knee complaints and any resulting disability were
attributable to her accepted employment injury or due to her preexisting conditions. Absent a
rationalized opinion of this issue, Dr. Stoke’s findings are of limited probative value.11
The Board finds that the weight of the evidence, as represented by the second opinion
specialist, Dr. Bode, establishes that appellant no longer had employment-related residuals or
disability as of February 21, 2018, the date OWCP terminated her wage-loss compensation and
medical benefits.12
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates compensation benefits, the burden of proof shifts to the
claimant to establish that she has continuing disability or residuals causally related to the accepted
employment injury.13 To establish causal relationship between the disability claimed and the
employment injury, the claimant must submit rationalized medical evidence or opinion based on
a complete medical and factual background supporting causal relationship.14
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related disability or residuals after February 21, 2018.
Following the termination of benefits, appellant submitted a June 15, 2018 report from
Dr. Anderson who diagnosed primary osteoarthritis and degenerative joint disease of the left knee.
Dr. Anderson noted that appellant reported pain of two years’ duration and a work injury on
January 30, 2017. He indicated that appellant would need a total knee replacement at some point.
However, Dr. Anderson did not address the relevant issues of appellant’s disability on and after
February 21, 2018, or whether appellant required medical treatment as of February 21, 2018

11
R.R., Docket No. 19-0173 (issued May 2, 2019); Daniel E. Kern, Sr., Docket No 04-1427 (issued
October 14, 2004).
12

Id.

13

D.M., Docket No. 17-1052 (issued January 24, 2019).

14

A.M., Docket No. 17-1192 (issued September 19, 2018).

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causally related to her accepted January 30, 2017 employment injury. Therefore, his report is of
diminished probative value.15
The Board thus finds that appellant has not met her burden of proof to establish continuing
residuals or disability after February 21, 2018.16
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 OWCP has met it burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 21, 2018. The Board further finds that
appellant has not met her burden of proof to establish continuing employment-related disability or
residuals after February 21, 2018, due to her accepted employment injury.

15

L.B., Docket No. 18-0560 (issued August 20, 2018).

16

Supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 6, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________
Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-9
Issued: April 15, 2014

Case Submitted on the Record

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

On October 1, 2013 appellant filed an application for review of an April 11, 2013
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her traumatic
injury claim for a right shoulder condition. The Board docketed the appeal as No. 14-9.
The evidence of record shows that appellant previously filed a traumatic injury claim for
a January 20, 2012 right shoulder injury. This earlier claim, to which OWCP assigned File
No. xxxxxx419, is not presently before the Board.
The Board has duly considered the matter and finds that the case is not in posture for a
decision.
On October 13, 2012 appellant, then a 35-year-old mail carrier, filed a traumatic injury
claim alleging that on August 22, 2012 she sustained right shoulder pain and acromioclavicular
(AC) joint separation when she picked up a heavy tub of mail. She stopped work and requested
disability compensation. In a December 20, 2012 statement, appellant reported that she
previously filed a claim on January 20, 2012 for a right shoulder injury and explained that on
August 22, 2012 she again experienced pain and burning in her right shoulder and arm at work.
She related that she was recently released from treatment for her previous January 20, 2012
injury but that her right shoulder continued to cause her problems. Appellant completed both a

recurrence and traumatic injury claim, but her case worker advised her to submit a new traumatic
injury claim. She submitted a copy of the recurrence claim form that she filled out.
Appellant also submitted medical evidence attributing her condition to the January 20,
2012 employment injury. In medical reports dated August 22 to December 15, 2012,
Dr. Emily E. Lorenzo, a Board-certified family practitioner, stated that in January 2012 appellant
sustained an injury to her right shoulder at work and that on August 22, 2012 she sustained a
recurrence of a shoulder injury when she lifted a tub of mail at work and felt the same pain and
burning in her shoulder. Dr. Lorenzo provided findings on examination and diagnosed right
shoulder pain and AC joint separation. In an October 10, 2012 report, Dr. Karen Jones, a Boardcertified family practitioner, reported that appellant had a previous right shoulder injury in
January and developed a recurrence of right shoulder pain at work on August 22, 2012. She
noted that an August 22, 2012 x-ray was positive for a right AC separation. Dr. Jones diagnosed
right shoulder pain and AC joint separation status post injury. Similarly, in a January 29, 2013
report, Dr. James Fleischli, a Board-certified orthopedic surgeon, related that appellant initially
injured her right shoulder in January 2012 when lifting a package at work and exacerbated her
preexisting injury while lifting on August 22, 2012. He diagnosed right shoulder impingement
syndrome, AC arthritis with a partial cuff tear and right shoulder pain. By decisions dated
January 7 and April 11, 2013, OWCP denied appellant’s claim finding insufficient evidence to
establish that her right shoulder condition was causally related to the August 22, 2012
employment incident.
Having duly reviewed the matter, the Board finds that the case is not in posture for a
decision. OWCP procedures provide that cases should be combined when correct adjudication
of the issues depends on frequent cross-reference between files. For example, if a new injury
case is reported for an employee who previously filed an injury claim for a similar condition or
the same part of the body, doubling is required.1 In the instant case, appellant filed a traumatic
injury claim, under File No. xxxxxx133, for a right shoulder injury. The record further reveals
that appellant previously filed a traumatic injury claim, assigned File No. xxxxxx419, for a
January 20, 2012 injury to the same part of the body. The factual and medical evidence
pertaining to appellant’s January 20, 2012 employment injury in File No. xxxxxx419, however,
is not contained in the case record. Furthermore, the record contains evidence of appellant’s
attempt to file a recurrence claim of the January 20, 2012 employment injury. On appeal
appellant’s attorney also alleges that the current claim could be adjudicated as a recurrence of the
January 20, 2012 injury. However, OWCP continued to adjudicate the claim as a new traumatic
injury claim even though the evidence supports that appellant sustained a recurrence of the
January 20, 2012 right shoulder injury. It failed to properly combine or request combination of
the present case record with the record of the January 20, 2012 employment injury, which

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).

2

appellant implicated as the initial cause of her August 22, 2012 right shoulder condition.2 The
Board will consequently remand the case for OWCP to combine the current case record with File
No. xxxxxx419 and determine whether she sustained either a recurrence of disability due to her
January 20, 2012 employment injury or a new work injury. Following this and any further
development deemed necessary, it shall issue a de novo decision on the merits.
IT IS HEREBY ORDERED THAT the April 11, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: April 15, 2014
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

2

See C.B., Docket No. 13-1091 (issued September 16, 2013) (remanding the case to OWCP to combine case files
where the record revealed that appellant attributed a March 2, 2012 left foot injury to a previous April 12, 2004
employment injury). See also M.Z., Docket No. 13-414 (issued June 26, 2012) (remanding the case to OWCP to
combine case files where it did not adequately explain why it adjudicated appellant’s notice of recurrence of
disability as a new injury given that she alleged that she experienced pain immediately upon returning to work rather
than relating her condition to new work factors).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF STATE, AMERICAN
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EMBASSY, Maharajgunj, Kathmandu, Employer )
__________________________________________ )
R.M., Appellant

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

Docket No. 15-1261
Issued: January 27, 2016

Case Submitted on the Record

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

JURISDICTION
On May 15, 2015 appellant filed a timely appeal of a December 1, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision on November 21, 2013 and 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 to review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim for compensation pursuant
to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 23, 2012 appellant, then a 48-year-old foreign service officer, filed a traumatic
injury claim (Form CA-1) alleging that he sustained injuries in the performance of duty on
May 31, 2012. In a June 26, 2012 statement, he claimed that he was pushed into a swimming
pool during a “management event” and his left knee struck the concrete floor of the swimming
pool. Appellant stated that he returned to the office and continued to work through the end of the
day, but then the next day he had to take an overnight flight to the United States for a permanent
change of duty station. He indicated that he had pain in his right leg, hip, and back, and he was
diagnosed with an L5-S1 herniated disc. Appellant stated that he believed his left knee hitting
the concrete as well as moving heavy bags during his travel had contributed to his herniated disc.
In response to questions from OWCP, the employing establishment stated that the
May 31, 2012 event was a farewell party for departing officers, which included appellant. It
indicated that the party was held at a recreational center managed by the U.S. Embassy, with him
and his staff encouraged, but not required, to attend. According to the employing establishment,
the event was held during working hours, from 3:00 p.m. to 500 p.m. on a Friday, and was meant
to be a team building exercise.
In support of his claim appellant submitted medical evidence including a June 12, 2012
report from Dr. David Ebelke, a Board-certified orthopedic surgeon. Dr. Ebelke provided a
history that appellant’s move back into the U.S. had involved a lot of baggage lifting, travel on
airplanes, and moving through airports. He indicated that appellant was seen for low back, right
hip, and radiating right leg pain.
By decision dated September 5, 2012, OWCP denied the claim for compensation. It
found that there were inconsistencies as to how the injury occurred. OWCP found that while
appellant had reported being pushed into a pool, Dr. Ebelke had referred to lifting luggage and
other travel activities.
Appellant requested a review of the written record by an OWCP hearing representative in
a letter dated October 2, 2012. He stated that he had explained how he had been pushed into the
pool and struck his left knee. Appellant submitted a June 18, 2012 treatment note from
Dr. Ebelke, noting that appellant had been thrown in a pool and struck his left knee. Dr. Ebelke
noted that it was possible that the fall in the pool had precipitated the disc herniation, as it was
not unusual for radicular symptoms to appear a day or two after a herniation occurs.
By decision dated January 22, 2013, the hearing representative found the May 31, 2012
incident did not occur in the performance of duty. The hearing representative cited Board
precedent with respect to recreational or social activities, and found that appellant was in travel
status, attending a voluntary event, with no benefit to the employing establishment.
On September 10, 2013 appellant submitted an August 28, 2013 letter requesting
reconsideration. He argued that he was not in travel status on May 31, 2012. In addition,
appellant argued that it was not a voluntary event, as it was an official farewell event to honor
departing officers. He noted that it was during office hours and on employing establishment

2

premises, and argued that the employing establishment does derive a benefit from such farewell
events.
By decision dated November 21, 2013, OWCP reviewed the merits of the claim and
denied modification. It found that the May 31, 2012 incident was a recreational activity not in
the performance of duty.
On November 20, 2014 appellant, through his counsel at the time, requested
reconsideration and submitted a November 17, 2014 letter.2 He reviewed the factual history and
prior OWCP decisions. Appellant argued that recreational or social activities are within the
course of employment when they occur on the premises during a lunch or recreational period as a
regular incident of the employment, when the employing establishment expressly or impliedly
requires participation, or when the employing establishment derives substantial direct benefits
from the activity beyond the intangible value that is common to all kinds of recreation and social
life. According to appellant, OWCP had denied the claim because there was no substantial
benefit to the employing establishment in this case. Appellant asserted that OWCP had not
properly considered its Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of
Duty, Chapter 2.804.8 (August 1992) regarding recreational activity claims. He argued that the
manual provided two different scenarios: Section (a) deals with an employee who is engaged in
formal recreation and either the “employee is paid for participating or the recreational activity is
required and prescribed as a part of the employee’s training or assigned duties.” Section (b)
addresses employees “engaged in a recreational activity under other circumstances.” The
substantial and direct benefit to the employing establishment is only considerer under section (b)
whereas the present case fell under section (a).
Appellant further argued that even if the substantial benefit analysis was applied, the case
cited by OWCP was distinguishable from the present case. He stated that in Barbara Roy,3 the
Board addressed voluntary participation after work hours, while the present case was during
work hours and was not voluntary. Appellant also discussed the Foreign Affairs Manual
covering appellant and other employees, and a Community Liaison Office (CLO), whose
responsibility was to implement recreational and social activities for post employees. It was
argued that the establishment of the CLO indicated the importance and benefit to the employing
establishment of recreational activities. Appellant submitted an employing establishment “report
of mishap” with respect to the May 31, 2012 incident and argued that the evidence of record
demonstrated that the injury occurred in the performance of duty.
By decision dated December 1, 2014, OWCP denied merit review of the claim. It found
that appellant had not met any of the standards to require a merit review of the claim for
compensation.

2

Appellant had not previously been represented by counsel, and is not represented on appeal.

3

42 ECAB 960 (1991).

3

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
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 evidence not previously considered by OWCP.”5 20 C.F.R.
§ 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.6
ANALYSIS
The claim in this case was denied based on a finding by OWCP that appellant was not in
the performance of duty on May 31, 2012 when he was pushed into a pool, during work hours, at
an Embassy event for departing Foreign Service officers. OWCP found that he was involved in
a voluntary recreational activity that was not covered under FECA.
As noted above, a claimant is entitled to a decision on the merits of the claim if he
advances a relevant legal argument not previously considered by OWCP. The Board finds that
appellant submitted a reconsideration request that advanced new and relevant legal arguments.
On reconsideration appellant argued, for the first time, that under OWCP procedures regarding
recreation he would be covered for any injury resulting from the May 31, 2012 incident.
Appellant discussed Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty,
Chapter 2.804.8 (August 1992). Section (a) states that a claimant is in the performance of duty if
injured while engaged in a recreational activity organized and directed by the employing
establishment and the claimant was paid to participate, or the activity was required as part of
assigned duties or training. Section (b) discusses recreational activity under other circumstances.
In its December 1, 2014 decision, OWCP acknowledged that appellant raised the
argument, but did not consider the argument under the standard of “advances a relevant legal
argument not previously considered by OWCP” to determine whether he was entitled to a merit
review. Appellant has clearly raised a new and relevant legal argument with respect to the
provisions of OWCP procedure manual regarding recreational activity. He argued that the
procedure manual provides a framework with respect to recreational or social activity, and
OWCP did not follow its procedure manual. Appellant also raised a new argument that even if a
substantial benefit to the employing establishment analysis was applied, OWCP had not properly
applied Board case law.

4

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

4

For the above reasons, the Board finds that appellant has advanced relevant legal
arguments not previously considered by OWCP with respect to the primary legal issue raised in
this case. Pursuant to 20 C.F.R. § 10.606(b)(3), appellant was entitled to a review of the merits
of his claim for compensation. The case will be remanded for a proper merit decision.
CONCLUSION
The Board finds that appellant’s application for reconsideration was sufficient to warrant
a merit review of the claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2014 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: January 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eagleville, PA, Employer
__________________________________________

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

Docket No. 16-1735
Issued: February 8, 2017

Case Submitted on the Record

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

JURISDICTION
On August 30, 2016 appellant, through counsel, filed a timely appeal from March 22 and
June 20, 2016 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits on September 6, 2012 because he no longer had
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.

residuals of the accepted right shoulder strain; and (2) whether appellant established that he had
any continuing employment-related disability or condition after September 6, 2012 due to the
accepted conditions.
On appeal counsel asserts that the evidence showing causation was not properly
considered.
FACTUAL HISTORY
On March 7, 2011 appellant, then a 52-year-old transitional city carrier, filed an
occupational disease claim (Form CA-2) alleging that repetitive motion and carrying a mailbag
for 11½ months injured his right shoulder. He stopped work on March 2, 2011. On June 7, 2011
OWCP accepted right shoulder strain, and appellant received wage-loss compensation.
Dr. David D. Raab, a treating Board-certified osteopath specializing in orthopedic
surgery, first examined appellant on February 9, 2011. At that time he reported a history that
appellant presented with increasing pain and irritation in his right shoulder that occurred on a
fairly acute basis approximately one week previously. Dr. Raab reported that appellant had pain
with overhead activity, pushing, and pulling. He diagnosed acute rotator cuff bursitis tendinitis.
A June 10, 2011 magnetic resonance imaging (MRI) scan of the right shoulder
demonstrated glenohumeral effusion, supraspinatus and infraspinatus tendinosis, mild
degenerative acromioclavicular (AC) joint osteoarthritis, and no rotator cuff tear. On July 27,
2011 Dr. Raab noted his review of the MRI scan. Right shoulder examination demonstrated a
positive impingement sign on examination and AC joint tenderness. Dr. Raab diagnosed
symptomatic tendinitis of the right shoulder and capsulitis AC joint arthritis. He advised that
appellant could not work.
Appellant’s term appointment with the employing establishment expired on
November 3, 2011.
Dr. Raab continued to see appellant on a monthly basis through December 21, 2011. On
December 21, 2011 he noted that appellant continued to have tenderness over the right shoulder
AC joint with full active and passive range of motion. Dr. Raab diagnosed symptomatic
degenerative joint disease of the AC joint of the right shoulder.
In January 2012 OWCP referred appellant to Dr. Steven J. Valentino, a Board-certified
osteopath specializing in orthopedic surgery, for a second-opinion evaluation. In a February 28,
2012 report, he noted his review of the statement of accepted facts (SOAF) and medical record,
including the June 10, 2011 MRI scan, and appellant’s complaint of right shoulder achiness.
Examination of both shoulders revealed full range of motion, both active, and passive.
Impingement, instability and sulcus testing was negative, and examination of the rotator cuff,
glenohumeral articulation, labrum, AC joint, sternoclavicular joint, clavicle, and subclavicular
region was normal. Speed’s test, crossed abduction sign, Neer sign, and Hawkins sign were
negative. Dr. Valentino diagnosed resolved right shoulder sprain. He commented that, based on
his examination, the sprain had fully resolved without residual, advising that the MRI scan
findings were degenerative and mild and were not related to appellant’s employment injury.

2

Dr. Valentino concluded that appellant did not need ongoing supervised medical care for his
employment-related shoulder injury, and had no physical limits regarding this.
By letter dated April 9, 2012, OWCP forwarded Dr. Valentino’s report to Dr. Raab and
asked for his comments.
On June 1, 2012 OWCP proposed to terminate appellant’s wage-loss and medical
benefits. It found that the weight of the medical opinion evidence rested with the opinion of
Dr. Valentino who advised that the employment-related right shoulder strain had resolved
without residuals, and that appellant needed no further treatment for the accepted strain and
could return to work.
In response, appellant forwarded medical evidence previously of record and a June 7,
2012 treatment note of Dr. Raab. Dr. Raab reported a history that appellant had injured his right
shoulder 14 months previously at work, noting work activity of repetitive shoulder motion,
overhead reaching, repetitive lifting, repetitive pushing, and prolonged shoulder use. He
described appellant’s complaints of right shoulder pain that radiated into his right arm. Dr. Raab
diagnosed rotator cuff syndrome and shoulder osteoarthrosis.
In a September 6, 2012 decision, OWCP terminated appellant’s wage-loss and medical
benefits, effective that day. It found that the weight of the medical evidence rested with the
opinion of Dr. Valentino.
Appellant, through counsel,3 requested a hearing before OWCP’s Branch of Hearings and
Review. In a treatment note dated October 1, 2012, Dr. Raab repeated the history he reported on
June 7, 2012. Physical examination of the right shoulder demonstrated no tenderness and no
limitation of range of motion except that internal rotation was to T-10. All tests were negative.
Dr. Raab reiterated his diagnoses of rotator cuff syndrome and shoulder osteoarthrosis.
At the hearing, held on December 4, 2012, appellant testified that he had worked off and
on at the employing establishment since 1981, especially during the holidays, beginning as a
mail handler. He indicated that he continued to have shoulder pain and decreased shoulder range
of motion. The record was held open for 30 days.
By decision dated February 11, 2013, an OWCP hearing representative affirmed the
September 6, 2012 decision. She noted that Dr. Raab diagnosed conditions that had not been
accepted and gave no explanation as to how these diagnoses were related to appellant’s Federal
employment.
Appellant, through counsel, requested reconsideration on June 10, 2013. He submitted an
April 18, 2013 report in which Dr. Raab noted that appellant’s shoulder problem was a workrelated injury. Right shoulder examination demonstrated no tenderness, no limitations on range
of motion except internal rotation was to T-10, and no weakness. Resisted ER, Hawkin’s, Neer,
Speed’s, Obrien’s, and empty can tests were positive. Lift-off, anterior apprehension, and

3

At this time appellant was represented by Aaron B. Aumiller, Esquire.

3

posterior apprehension tests were negative. Dr. Raab diagnosed rotator cuff syndrome and AC
joint derangement.
In a merit decision dated October 6, 2014, OWCP found Dr. Raab’s April 18, 2013 report
of diminished probative value and insufficient to warrant modification of the prior decision.
Appellant did not receive this decision as it was mailed to an incorrect address. The October 6,
2014 decision was reissued on March 11, 2015.
On February 15, 2016 counsel4 requested reconsideration. In support of the request, he
submitted a January 27, 2016 report in which Dr. Rahul Kapur, Board-certified in family
medicine and sports medicine, noted having seen appellant since “July 21, 2016” [sic] for right
shoulder pain that began in 2011, related to his work at the employing establishment. Dr. Kapur
advised that, based on an August 14, 2015 musculoskeletal ultrasound, the current diagnosis was
adhesive capsulitis and mild rotator cuff tendinopathy. He opined that the main risk factor for
developing adhesive capsulitis was immobilization of the shoulder and noted appellant’s report
that he had guarded and limited shoulder motion since the 2011 employment injury. Dr. Kapur
concluded, “If it has been determined that the original strain was work related, and there is
documentation from his care providers that he continued to have pain and guarded motion due to
this pain, then it is reasonable to say that [appellant’s] original work-related injury contributed to
his ongoing shoulder pathology.”
In a merit decision dated March 22, 2016, OWCP found Dr. Kapur’s report contained
insufficient rationale and denied modification of the prior decisions.
Appellant, through counsel, next requested reconsideration on May 23, 2016. In a
February 12, 2016 report, Dr. Raab advised that he had read Dr. Valentino’s report. He opined,
“Within a reasonable degree of medical certainty, [appellant] sustained a work[-]related injury to
his right shoulder that has resulted in an exacerbation of degenerative changes of his right
shoulder leading to chronic pain, weakness, and limitations in activities of daily living. His
program of home exercises, ibuprofen, and restricted activities is appropriate and medically
necessary. Due to the chronic nature of his injury and continued discomfort with activities of
daily living, I anticipate [appellant] will have a permanent disability as a result of the injury.”
In a June 20, 2016 merit decision, OWCP denied modification of the prior decisions. It
found that Dr. Raab had failed to sufficiently explain how work factors resulted total disability
due to appellant’s accepted conditions. OWCP concluded that the weight of the medical
evidence continued to rest with the opinion of Dr. Valentino.
LEGAL PRECEDENT -- ISSUE 1
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.5
4

Appellant was now represented by current counsel.

5

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

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.6
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s occupational disease claim for right shoulder strain. It
terminated his wage-loss compensation and medical benefits on September 6, 2012, based on the
opinion of Dr. Valentino, an OWCP referral physician.
The medical evidence relevant to the September 6, 2012 termination included
Dr. Valentino’s February 28, 2012 report. Dr. Valentino noted his review of the SOAF and
medical record. He described appellant’s complaints of right shoulder achiness. Right shoulder
examination revealed full range of motion with negative impingement, instability, and sulcus
tests.
Examination of the rotator cuff, glenohumeral articulation, labrum, AC joint,
sternoclavicular joint, clavicle, and subclavicular region was normal. Speed’s test, crossed
abduction sign, Neer sign, and Hawkins sign were negative. Dr. Valentino commented that,
based on his examination, the right shoulder strain had fully resolved without residual. He
concluded that appellant did not need further medical care for the right shoulder strain and had
no restrictions based on the employment injury.
Dr. Raab, an attending physician, advised on December 21, 2011 that appellant continued
to have tenderness over the AC joint with full active and passive right shoulder range of motion.
He diagnosed symptomatic degenerative joint disease of the AC joint of the right shoulder. In
his June 7, 2012 report, Dr. Raab noted appellant’s complaints of right shoulder pain that
radiated into his right arm, and diagnosed rotator cuff syndrome and shoulder osteoarthrosis.
The Board finds that OWCP properly relied on Dr. Valentino’s opinion in terminating
appellant’s wage-loss compensation and medical benefits on September 6, 2012. Dr. Valentino
had full knowledge of the relevant facts, and his opinion was based on proper factual and
medical history. He described examination findings. At the time benefits were terminated,
Dr. Valentino found no basis on which to attribute any residuals or continued disability to
appellant’s accepted right shoulder strain. His opinion is found to be probative and reliable and
sufficient to justify OWCP’s termination of benefits for the accepted conditions.7
The Board finds that Dr. Raab’s opinion is insufficient to establish a conflict in medical
evidence with the well-rationalized opinion of Dr. Valentino. Dr. Raab initially provided a
history that increasing pain and irritation in appellant’s right shoulder occurred on a fairly acute
basis approximately one week previously. On June 7, 2012 he reported a different history, that
appellant injured his right shoulder 14 months previously at work, and noted work activity of

6

Id.

7

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).

5

repetitive shoulder motion, overhead reaching, repetitive lifting, repetitive pushing, and
prolonged shoulder use.
OWCP therefore met its burden of proof to terminate appellant’s wage-loss compensation
and medical benefits on September 6, 2012.8
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate wage-loss compensation on September 9,
2012, the burden of proof shifted to appellant to establish any continuing disability causally
related to the accepted right shoulder strain.9 Causal relationship is a medical issue. 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 claimant.10
ANALYSIS -- ISSUE 2
The Board finds that appellant failed to establish continuing residuals or disability
relating to the accepted right shoulder strain on or after September 6, 2012.
Subsequent to the termination of benefits appellant submitted reports from Dr. Raab
dated October 1, 2012, April 18, 2013, and February 12, 2016. In the October 1, 2012 treatment
note, Dr. Raab repeated that the right shoulder examination demonstrated no tenderness and no
limitations of range of motion except internal rotation to T-10. All tests were negative. Dr. Raab
reiterated his diagnoses of rotator cuff syndrome and shoulder osteoarthrosis. On April 18, 2013
he noted that appellant’s shoulder problem was a work-related injury. Right shoulder
examination demonstrated no tenderness, no limitations on range of motion except internal
rotation to T-10, and no weakness. Resisted ER, Hawkin’s, Neer, Speed’s, Obrien’s, and empty
can tests were positive. Lift-off, anterior apprehension, and posterior apprehension tests were
negative. Dr. Raab diagnosed rotator cuff syndrome and AC joint derangement.
Dr. Raab did not explain why appellant’s tests results changed so significantly in the six
months between these two reports. Moreover, the conditions of rotator cuff syndrome, shoulder
osteoarthrosis, and AC joint derangement have not been accepted. While Dr. Raab opined on
February 12, 2016 that, within a reasonable degree of medical certainty, appellant’s right
shoulder employment injury resulted in an exacerbation of degenerative changes of his right
shoulder leading to chronic pain, weakness, and limitations in activities of daily living and that
he anticipated that appellant would have permanent disability as a result of the injury, the
physician did not exhibit any knowledge of appellant’s specific work history or specific activities
of the letter carrier position or explain the disease process that led to his current diagnoses.
8

Supra note 5.

9

See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

10

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

6

The Board has long held that medical opinions not containing rationale on causal relation
are of diminished probative value and are generally insufficient to meet appellant’s burden of
proof.11 The Board finds that Dr. Raab’s opinion of insufficient probative value on the issue of
whether appellant had any continuing disability after September 12, 2012 due to the accepted
right shoulder strain.
As to Dr. Kapur’s January 27, 2016 report, it was rendered almost five years after
appellant stopped work at the employing establishment. He referenced an August 14, 2015
ultrasound study that is not found in the case record. Moreover, while Dr. Kapur noted
appellant’s report that he had been limited in moving his right shoulder since 2011. Dr. Raab
reported on December 11, 2011 that appellant had full range of motion of the right shoulder, as
did Dr. Valentino on February 28, 2012. In his report of June 7, 2012, he provided no physical
examination findings. It was not until October 2, 2012 that Dr. Raab reported restricted right
shoulder motion, and then only in the internal rotation maneuver. Thus, Dr. Kapur’s conclusion
regarding the possibility of restricted motion is not supported by the record. Also, he exhibited
no knowledge of appellant’s employment history or specific job duties. Dr. Kapur’s opinion is
insufficient to establish continuing disability.
The factors that comprise the evaluation of medical evidence include the opportunity for
and the thoroughness of physical examination, the accuracy and completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.12 Contrary to counsel’s assertion on
appeal, there is no medical evidence of record of sufficient rationale to establish that appellant
continued to be disabled due to the accepted right shoulder strain. Appellant therefore did not
meet his burden of proof to establish that he continued to be disabled after September 6, 2012
due to the accepted right shoulder strain.
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
compensation September 6, 2012 because he no longer had residuals of the accepted right
shoulder strain, and that he did not establish that he had a continuing employment-related
condition or disability after September 6, 2012 due to the accepted condition.

11

Carolyn F. Allen, 47 ECAB 240 (1995).

12

Nicolette R. Kelstrom, 54 ECAB 570 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the June 20 and March 22, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 13-1825
Issued: January 30, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 1, 2013 appellant filed a timely appeal from a March 8, 2013 Office of
Workers’ Compensation Programs’ (OWCP) decision regarding his schedule award claim. He
also appealed an April 23, 2013 OWCP decision that denied his request for reconsideration.
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 the case.
ISSUES
The issues are: (1) whether appellant has more than two percent impairment of his right
arm for which he received a schedule award; and (2) whether OWCP properly denied his request
for reconsideration.
FACTUAL HISTORY
On June 19, 2009 appellant, then a 35-year-old distribution process worker, filed an
occupational disease claim for a right elbow injury due to performing repetitive job duties.
1

5 U.S.C. §§ 8101-8193.

OWCP accepted the claim for mononeuritis of the right elbow and later expanded his claim to
include right cubital tunnel syndrome. It authorized a right ulnar nerve transposition which was
performed on May 22, 2009 and a revision of the right ulnar nerve transposition on May 6, 2010.
Appellant received appropriate compensation benefits.2
Appellant was treated by Dr. Brad Meister, a Board-certified orthopedist, on May 11,
2009 for right medial elbow tenderness. Dr. Meister diagnosed refractory cubital tunnel
syndrome. On May 22, 2009 he performed an ulnar nerve transposition of the right elbow and
diagnosed right ulnar nerve entrapment at the elbow. An April 28, 2009 electromyogram (EMG)
revealed right focal sensorimotor ulnar mononeuropathy consistent with epicondylar groove and
cubital tunnel.
Appellant filed a claim for a schedule award. On April 6, 2010 OWCP advised him that
the medical evidence was insufficient to support his claim because the evidence did not show
that he had reached maximum medical improvement.
Appellant came under the treatment of Dr. Erich J. Lingenfelter, a Board-certified
orthopedist, from April 2 to December 8, 2010 for pain status post subcutaneous ulnar nerve
transposition. Dr. Lingenfelter diagnosed ulnar neuritis, status post subcutaneous ulnar nerve
transposition with subluxing ulnar nerve and recommended right submuscular ulnar nerve
transposition. On May 6, 2010 he performed a right revision, ulnar nerve transposition with
submuscular ulnar nerve transposition and neurolysis. Dr. Lingenfelter diagnosed continued
ulnar neuritis, status post subcutaneous ulnar nerve transposition with severe pain and ulnar
neuritis. In reports dated May 10 to December 18, 2010, he noted that appellant continued to
have numbness and tingling in his ulnar two digits with intermittent mild sharp pain.
Dr. Ligenfelter released appellant to work with permanent restrictions and noted that it would
take time, up to a year and a half, for his symptoms to completely calm down. A January 26,
2010 x-ray of the right elbow revealed no abnormalities.
On May 11, 2011 appellant filed a claim for a schedule award. On June 13, 2011 OWCP
advised that the medical evidence did not indicate that appellant had reached maximum medical
improvement. Appellant renewed his schedule award request in 2012.
By letter dated August 10, 2012, OWCP referred appellant for a second opinion to
Dr. Michael S. Clarke, a Board-certified orthopedic surgeon, regarding whether he had
permanent impairment due to his work injury.
In an August 27, 2012 report, Dr. Clarke noted appellant’s history of injury and medical
treatment. On examination appellant had a 35-degree loss of full extension of the right elbow,
irritability in the scar posterior to the medial malleolus, positive Tinel’s sign and full flexion of
the right elbow. Sensory examination with the pinwheel showed near complete anesthesia of the
2

Appellant injured his right finger on June 23, 2006 which was accepted for right index finger sprain, claim
number xxxxxx886. On March 20, 2010 he injured his right arm which was accepted for right arm/elbow strain,
claim number xxxxxx197. On October 20, 2010 appellant injured his left arm which was denied, claim number
xxxxxx540. These claims were consolidated with the current claim before the Board.

2

little finger and half the right finger and up to the ulnar border of the right hand there was
decreased sensory perception. Minimal intrinsic atrophy was noted. Appellant had profundus
function to the little and ring fingers equal bilaterally. He also had sweating of the ulnar nerve
distribution bilaterally with decreased two-point perception in the ulnar nerve distribution.
Dr. Clarke diagnosed partial sensory ulnar neuropathy status post ulnar neurolysis for cubital
canal syndrome.
In an addendum report dated November 20, 1012, Dr. Clarke opined that appellant had
four percent right upper extremity impairment pursuant to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 He
noted subjective sensory neuropathy presenting a decreased sensibility in the little finger and half
the right finger. There was no loss of motion function and all muscles innervated by the right
ulnar nerve were intact with no intrinsic muscle atrophy in the hand. Although Dr. Clarke noted
that appellant had 30 to 35 degrees lack of full elbow extension, he found this “suspect” as it had
been his experience, with similar conditions, that there is little or no decrease in elbow range of
motion. He opined that this would likely correct with usual activities of daily living. Dr. Clarke
noted that, pursuant to Table 15-8, sensory loss, and Figure 15.26, Table 15-33 for loss of motion
of the elbow, appellant had four percent right upper extremity impairment. In a December 14,
2012 report, he noted that appellant underwent three surgeries of the right ulnar nerve at the
elbow and the nerve was transposed with mild subjective ulnar sensory neuropathy possibly due
to partial devascularization of the nerve at the time of the surgeries.
On December 31, 2012 an OWCP medical adviser requested that Dr. Clarke provide an
impairment rating for the residuals of the accepted cubital tunnel syndrome which was found at
Table 15-23, page 449 of the A.M.A., Guides. He noted that impairment ratings for entrapment
neuropathy in the upper extremity is based on Table 15-23 of the A.M.A., Guides and requested
that Dr. Clarke provide an impairment rating using Table 15-23 of the A.M.A., Guides and note
grade modifiers as appropriate.
In a January 30, 2013 report, Dr. Clarke referred to Table 15-23, page 449 of the A.M.A.,
Guides for entrapment/compression neuropathy impairment and noted that test findings for the
April 28, 2009 EMG and nerve conduction studies confirm conduction delays over the ulnar
nerve distribution would correlate to a grade modifier of 1. Regarding a functional history
adjustment, he noted mild intermittent symptoms, for a grade modifier of 1. Dr. Clarke noted
that the physical examination adjustment corresponded to a grade modifier of 2 for decreased
sensation. He noted the grade modifiers totaled 4 (1+1+2) and averaged 1.33 which rounded
to 1. Dr. Clarke explained that grade modifier 1 was selected with a default value of two percent
right arm impairment for residuals of right cubital tunnel syndrome.
In a February 24, 2013 report, an OWCP medical adviser reviewed appellant’s history of
injury and treatment. He determined that appellant reached maximum medical improvement on
August 27, 2012. The medical adviser noted that Dr. Clarke provided signs and symptoms in
conjunction with diagnostic studies to determine an impairment rating pursuant to Table 15-23 of
A.M.A., Guides. He referred to Table 15-23 of the A.M.A., Guides and concurred with
3

A.M.A., Guides (6th ed. 2008).

3

Dr. Clarke’s determination that appellant had two percent impairment of the right upper
extremity for residual of right cubital tunnel syndrome.
By decision dated March 8, 2013, OWCP issued appellant a schedule award for two
percent permanent impairment of the right arm. The period of the award was from August 27 to
October 9, 2012.
In an undated letter and in an appeal request form, both received by OWCP on April 14,
2013, appellant requested reconsideration. No additional information was submitted.
In an April 23, 2013 decision, OWCP denied appellant’s requests for reconsideration on
the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides will be used.7 It is the claimant’s
burden to establish that he or she sustained a permanent impairment of a scheduled member or
function as a result of an employment injury.8
The A.M.A., Guides provide a specific rating process for entrapment neuropathies such
as carpal tunnel or cubital tunnel.9 This rating process requires that the diagnosis of a focal
neuropathy syndrome be documented by sensory or motor nerve conduction studies or EMG.
The A.M.A., Guides do not allow additional impairment values for decreased grip strength, loss
of motion or pain.10 Table 15-23 provides a compilation of the grade modifiers for test findings,
history, physical findings which are averaged and rounded to the nearest whole number. This
table also provides the range of impairment values as well as the function scale modifier which
determines the impairment value within the impairment scale.11
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

A.M.A., Guides (6th ed. 2009).

8

Tammy L. Meehan, 53 ECAB 229 (2001).

9

A.M.A., Guides 432-50.

10

Id. at 433.

11

See id. at 449, 448-450.

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ANALYSIS -- ISSUE 1
On appeal, appellant contends that he is entitled to a schedule award greater than two
percent permanent impairment of the right upper extremity. OWCP accepted his claim for
mononeuritis of the right elbow and later expanded his claim to include right cubital tunnel
syndrome. It authorized a right ulnar nerve transposition which was performed on May 22, 2009
and a revision of the right ulnar nerve transposition on May 6, 2010. On June 12, 2012 appellant
filed a Form CA-7 claim for a schedule award. The Board finds that the medical evidence of
record establishes no more than two percent of the right upper extremity.
Dr. Clarke and the medical adviser agreed as to the extent of appellant’s impairment.
They found that Table 15-23 (Entrapment/Compression Neuropathy Impairment)12 was
appropriate to rate appellant’s cubital tunnel syndrome. Dr. Clarke and the medical adviser
identified a grade modifier of 1 for EMG and nerve conduction testing findings on April 28,
2009 based upon conduction delays (sensory and/or motor).13 For functional history, appellant
had mild intermittent symptoms in the right upper extremity which corresponded to a grade
modifier of 1. For physical findings, Dr. Clarke found a grade modifier of 2 for decreased
sensation and the medical adviser concurred in this. The Board notes that, when grade modifier
values were added, they resulted in a total of four. Dividing this value of four by the three
modifier categories provided an average of 1.33 which was rounded to 1 which represented a
default impairment rating of two percent.14 In determining whether to modify the default value
of two percent, the physicians considered the impact of appellant’s condition on his activities of
daily living, and found it was reasonable to select a grade 1, which resulted in the default two
percent rating for grade modifier 1 in Table 15-23.
The Board finds that OWCP’s medical adviser and second opinion physician properly
applied the A.M.A., Guides to rate impairment to appellant’s right upper extremity. They
reviewed the medical evidence and determined that appellant had two percent impairment under
the sixth edition of the A.M.A., Guides. There is no other medical evidence in conformance with
the sixth edition of the A.M.A., Guides that supports any greater impairment.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

12

See id. at 449, Table 15-23.

13

Id.

14

See id. at 448-49.

15

Although Dr. Clarke’s November 20, 2012 report indicated that appellant had four percent impairment of the
right arm for sensory loss and loss of motion, he did not clearly explain how this rating was derived from the
A.M.A., Guides. Furthermore, Dr. Clarke questioned appellant’s lack of elbow extension, noting that his decreased
motion was “suspect.” Thus, this report is insufficient to establish any greater impairment.

5

LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,16 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain 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.”17
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.18
ANALYSIS -- ISSUE 2
OWCP’s most recent merit decision dated March 8, 2013 granted appellant a schedule
award for two percent impairment of the right upper extremity. It denied his reconsideration
request, without a merit review, and he appealed this decision to the Board.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument.
The Board notes that the underlying issue in this case is whether appellant sustained
permanent impairment of the right upper extremity greater than the two percent granted on
March 8, 2013. That is a medical issue which must be addressed by relevant medical evidence.19
A claimant may be also entitled to a merit review by submitting new and relevant evidence, but
appellant did not submit any new and relevant medical evidence in support of his claim.

16

5 U.S.C. § 8128(a).

17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.608(b).

19

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than a two percent impairment of the right upper extremity. The Board further finds that
OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the April 23 and March 8, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 30, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7