United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Amherst, NY, Employer
__________________________________________

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

Docket No. 14-1025
Issued: November 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 31, 2014 appellant timely appealed the March 3, 2014 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant’s claimed lumbar condition is causally related to his
June 4, 2012 accepted employment exposure.
FACTUAL HISTORY
Appellant, a 54-year-old letter carrier, filed a traumatic injury claim (Form CA-1) for a
lower back condition that allegedly arose in the performance of duty on June 4, 2012. At
approximately 12:40 p.m., he lifted a bundle of mail from a tray in the front of his work vehicle
1

5 U.S.C. §§ 8101-8193 (2006).

and reportedly felt a tingling, warm, spreading sensation in his lower back. Appellant also
reported experiencing a heavy feeling and tingling in both legs. He previously injured his back
at work on January 6, 1999, which OWCP accepted for lumbar disc displacement without
myelopathy (xxxxxx677). The employing establishment challenged the current traumatic injury
claim, arguing it should instead be considered a recurrence of appellant’s January 1999 lumbar
injury.
On June 5, 2012 appellant was treated at MedFirst Urgent Care for low back strain. He
was seen by several healthcare providers, including Dr. Vinod R. Patel, a Board-certified family
practitioner. The MedFirst treatment notes indicated a prior history of herniated disc. With
respect to appellant’s current complaints, the MedFirst records indicated that on June 4, 2012 he
turned in his chair and lifted a pile of mail, at which point appellant felt a warm sensation across
his lower back. A June 5, 2012 lumbar x-ray revealed equal disc spaces and no acute fractures.
Based on his latest low back injury, appellant was excused from all work for six days and
advised to resume normal duties effective June 11, 2012.
Dr. Corine S. Cicchetti, a Board-certified physiatrist, examined appellant on July 9, 2012
for complaints of lower back pain radiating to his bilateral thighs. Appellant’s symptoms began
on June 4, 2012 when he was sitting in a mail truck and turned to get a bundle of mail. As he
turned to exit the truck, appellant reportedly felt a “‘jelly squirt’” in his back. The pain worsened
throughout the day. Dr. Cicchetti noted that appellant had a work-related back injury since 1999,
and was being seen by Dr. Eugene J. Gosy, a Board-certified neurologist. Appellant was also
seeing a chiropractor. His current pain was the same as the previous pain. Dr. Cicchetti noted
that appellant was employed as a mail carrier, but had not worked since June 4, 2012 due to
injury/symptoms. A July 9, 2012 lumbar magnetic resonance imaging (MRI) scan revealed
small central disc herniations at L3-4 and L4-5. Dr. Cicchetti also reviewed appellant’s
November 11, 2011 lumbar MRI scan, which showed a broad-based disc herniation at L3-4 and
a central disc herniation at L4-5 with midline annular tear. Her current diagnoses included
herniated lumbar disc, bilateral lumbar radiculopathy, pes planus and unequal leg length -- short
left leg. Dr. Cicchetti explained that appellant currently had a flare-up of his preexisting back
pain, which was initially a workers’ compensation injury from 1999. She further explained that
his pain had been under good control with medication and chiropractic treatment up until the
current flare, which began on June 4, 2012 while at work. Dr. Cicchetti stated that appellant’s
latest lumbar MRI scan did not show any new findings when compared to his November 2011
MRI scan. For appellant’s back condition, she recommended pain medication, physical therapy
and that he not work until his pain was better controlled. In conclusion, Dr. Cicchetti reiterated
that appellant’s current complaints, which began on June 4, 2012, represented a flare-up of pain
related to his original 1999 injury.
In a July 19, 2012 duty status report (Form CA-17), Dr. Cicchetti continued to find
appellant totally disabled.
In an August 1, 2012 report, Dr. Eric P. Roger, a spine neurosurgeon, diagnosed lumbar
intervertebral disc degeneration, lumbago.
In an August 17, 2012 report, Dr. Cicchetti noted a diagnosis of lumbar disc herniations
at L3-4 and L4-5. She stated that appellant originally injured his back in 1999, and developed

2

increased pain while at work on June 4, 2012. A recent lumbar MRI scan showed disc
herniations at L3-4 and L4-5, which was the cause of appellant’s pain. Dr. Cicchetti
characterized appellant’s current condition/injury as an exacerbation of his original 1999 injury.
She noted a good prognosis, with a goal to returning appellant to full duty within the next six
months. Dr. Cicchetti recommended physical therapy, Celebrex and tramadol for pain, and no
work until appellant’s pain was more manageable. She planned to see him every two to three
weeks to monitor his response to treatment.
In a February 1, 2013 report, Dr. Cicchetti reiterated much of what she previously stated
in her August 17, 2012 report, including her diagnosis of lumbar disc herniations at L3-4 and
L4-5. Again, she noted that appellant was originally injured in 1999, and developed increased
pain while at work on June 4, 2012. Appellant reported having turned to get mail from his truck
when he suddenly felt pain in his low back. This exacerbated his original 1999 injury, and the
pain appellant experienced was caused by his lumbar disc herniations. With medications and
physical therapy, appellant’s condition improved and he was able to resume his regular work
duties. Dr. Cicchetti noted that appellant continued under the care of Dr. Gosy, and that his
prognosis was good.
In her latest report dated September 3, 2013, Dr. Cicchetti stated that appellant was under
her care for a June 4, 2012 workers’ compensation case. She indicated that he had a preexisting
back injury with a diagnosis of L3-4 and L4-5 disc herniations. Dr. Cicchetti further indicated
that appellant had been doing well and working full duty until the date of injury when he twisted
and lifted while retrieving mail from his truck and felt significant back pain. She stated that this
action at work caused an exacerbation of his discogenic pain (back pain) and his radicular
symptoms (leg pain).
OWCP also received physical therapy records, as well as treatment records from
Kathleen Butler, a nurse practitioner, who saw appellant during the period of June 20 through
August 1, 2012. Appellant was also treated by Wendy A. Callen, a physician’s assistant.
Ms. Callen’s treatment records cover the period of August 15, 2012 through January 23, 2013.
In a July 26, 2012 decision, OWCP denied appellant’s claim on the basis that he did not
establish fact of injury. It found there was no medical diagnosis in connection with the claimed
event and/or work factors, but this initial decision was later modified to reflect an alternative
basis for denial.
By decision dated June 5, 2013, OWCP explained that, based on the June 4, 2012
employment incident, the case was properly considered a new traumatic injury rather than a
recurrence of appellant’s January 6, 1999 lumbar injury. Additionally, it found the medical
evidence sufficient to establish a diagnosis of exacerbation of herniated discs. However,
appellant’s claim remained in denial status because the medical evidence did not establish that
the diagnosed condition was causally related to the June 4, 2012 employment incident. OWCP
explained that Dr. Cicchetti merely stated that appellant developed increased pain at work on
June 4, 2012. Her opinion was considered deficient because Dr. Cicchetti did not provide
medical rationale in support of her conclusion that appellant’s preexisting disc injury was
exacerbated. Consequently, OWCP denied the claim because appellant failed to establish causal
relationship.

3

In an October 1, 2013 nonmerit decision, OWCP denied appellant’s September 16, 2013
request for reconsideration and, in a March 3, 2014 decision, it denied modification on the basis
that Dr. Cicchetti’s September 3, 2013 report did not include a rationalized explanation of how
the June 4, 2012 employment incident exacerbated appellant’s (lumbar) medical condition.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.2
To determine if 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 that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.3 The second component is whether the employment incident caused a
personal injury.4 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.5
ANALYSIS
OWCP accepted that the June 4, 2012 employment incident occurred as alleged, and also
found the medical evidence sufficient to establish a diagnosis of exacerbation of herniated discs.
However, the medical evidence of record was insufficient to establish that the diagnosed
condition was causally related to the June 4, 2012 employment incident.
The Board finds that Dr. Cicchetti’s various reports are insufficient to discharge
appellant’s burden of proving that appellant’s June 4, 2012 employment exposure exacerbated
his lumbar condition. In her initial July 9, 2012 report, Dr. Cicchetti stated that appellant’s
current complaints, which began on June 4, 2012, represented a flare-up of pain related to his
original 1999 injury. She further noted that prior to the June 4, 2012 flare-up at work, appellant’s
pain had been under good control with medication and chiropractic treatment. Dr. Cicchetti

2

20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question which generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
5

Shirley A. Temple, 48 ECAB 404, 407 (1997).

4

failed to explain how appellant’s then-current lumbar symptoms were either caused or
aggravated by his June 4, 2012 employment activities.
In subsequent reports dated August 17, 2012 and February 1, 2013, Dr. Cicchetti
diagnosed lumbar disc herniations at L3-4 and L4-5, which predated the June 4, 2012
employment incident. Dr. Cicchetti noted that appellant originally injured his back in 1999, and
developed increased pain while at work on June 4, 2012. The disc herniations were noted to be
the cause of appellant’s pain. Dr. Cicchetti characterized his current condition/injury as an
exacerbation of his original 1999 injury. Although she described what appellant was doing when
he experienced increased pain in his lower back, Dr. Cicchetti again failed to explain how
appellant’s June 4, 2012 employment activities exacerbated his lumbar disc herniations.
In her latest report dated September 3, 2013, Dr. Cicchetti indicated appellant had been
doing well and working full duty until June 4, 2012, when he twisted and lifted while retrieving
mail from his truck and felt significant back pain. She stated that this action caused an
exacerbation of appellant’s discogenic pain and his radicular symptoms. Once again,
Dr. Cicchetti failed to provide an explanation of how appellant’s June 4, 2012 employment
activities exacerbated his lumbar disc herniations.
Dr. Cicchetti opined that appellant’s employment activities exacerbated his lumbar
condition, but what is not evident from her various reports is how the reported employment
activity -- twisting and lifting -- caused or contributed to appellant’s current lumbar condition. A
physician’s opinion must be based on a complete factual and medical background and supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factor(s).6 Dr. Cicchetti has not adequately explained the
mechanism of injury and how it was responsible for appellant’s claimed condition.
The Board further notes that appellant’s physical therapy records and the treatment
records from Ms. Butler, a nurse practitioner, and Ms. Callen, a physician assistant, will not
suffice for purposes of establishing entitlement to FECA benefits.7 Physician assistants, nurse
practitioners and physical therapists are not considered “physician[s]” as defined under FECA.8
As such, the above-noted treatment records are of limited probative value.
Because the medical evidence of record fails to establish a causal relationship between
appellant’s accepted employment exposure and the diagnosed lumbar condition, OWCP properly
denied appellant’s traumatic injury claim.

6

Victor J. Woodhams, supra note 4.

7

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013). Although Ms. Callen was associated with Dr. Cicchetti’s medical practice, Ms. Callen’s treatment
records were not countersigned by Dr. Cicchetti.
8

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

5

CONCLUSION
Appellant failed to establish that his claimed lumbar condition is causally related to his
June 4, 2012 accepted employment exposure.
ORDER
IT IS HEREBY ORDERED THAT the March 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, 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
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1593
Issued: April 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 26, 2013 appellant, through her representative, timely appealed the January 18,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.2
ISSUE
The issue is whether appellant sustained injuries to his neck and low back in the
performance of duty.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record includes evidence received after OWCP issued its January 19, 2013 final decision. As this evidence
was not part of the record when OWCP issued the decision, the Board is precluded from considering it for the first
time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 22, 2011 appellant, a 64-year-old city carrier, filed a claim (Form CA-2)
for injuries to his neck and low back that arose on or about October 24, 2011. He submitted a
city carrier position description and a November 2011 statement describing his daily work
routine. Appellant’s duties included approximately two hours of casing and organizing mail,
which he then loaded into his delivery vehicle. His mail route consisted of approximately 600
homes some of which were vacant. Appellant stated that 94 percent of his route was park and
loop delivery, five percent was dismount and the remainder was curbside delivery. He indicated
that his delivery duties took five to seven hours to complete. This consisted of walking through
lawns and over uneven terrain, walking up and down stairs, twisting, turning, reaching, reaching
above shoulder and stooping. Appellant noted that a fully loaded mail satchel weighed up to 35
pounds. His job required constant movement of his neck in all directions. Appellant explained
that his job gradually aggravated his neck and back.
A November 2, 2011 note, Dr. Erick A. Grana, a Board-certified physiatrist with a
subspecialty in pain medicine, advised that appellant was to stay off work for two weeks due to
neck and low back pain.
A November 3, 2011 cervical magnetic resonance imaging (MRI) scan noted a six-month
history of neck pain with decreased range of motion. The study revealed disc herniations at C4-5
and C5-6 with compression on the thecal sac. There was also evidence of mild spondylotic
changes at C5-6, moderate left-sided neuroforaminal stenosis and marked intervertebral disc
space narrowing.
On November 14, 2011 Dr. Grana diagnosed a cervical herniated disc and advised that
appellant was unable to work for two weeks. He also submitted a November 30, 2011 attending
physician’s report (Form CA-20). Dr. Grana diagnosed cervical facet arthrosis and cervical
degenerative joint disease. He noted that appellant had been disabled since November 2, 2011,
and he was to remain off work for another two weeks.3
On the CA-2 claim form, the employing establishment noted that appellant was off work
from November 2 through December 14, 2011. Appellant returned to work on December 15,
2011, but stopped again on December 22, 2011 after having sustained a new traumatic injury to
his neck, shoulders, arms and lower back (xxxxxx900).
On December 30, 2011 OWCP acknowledged receipt of appellant’s occupational disease
claim. It advised him that the evidence of record was insufficient to support his claim.
Appellant’s claim was deficient because the record lacked a physician’s opinion addressing how
the diagnosed cervical condition was causally related to his reported employment activities.
OWCP afforded him 30 days’ time to submit additional medical evidence.

3

Dr. Grana did not identify the date of injury or otherwise address the cause of appellant’s diagnosed cervical
condition.

2

On February 3, 2012 OWCP denied appellant’s claim. It found that he had not
established a causal relationship between his accepted employment work duties and Dr. Grana’s
November 30, 2011 diagnosis of cervical facet arthrosis and cervical degenerative joint disease.
Appellant requested an oral hearing, which the Branch of Hearings & Review provided
on May 2, 2012. He was afforded the opportunity to submit additional medical evidence
posthearing. However, OWCP did not receive any further evidence within the allotted time.
By decision dated July 10, 2012, the hearing representative affirmed the February 3, 2012
decision. He found that the medical evidence did not contain a physician’s opinion addressing
causal relation.
OWCP subsequently received several reports from Dr. Samy F. Bishai, an orthopedic
surgeon. On September 13, 2012 Dr. Bishai noted that appellant sustained injuries to his back
while working for the employing establishment. The current injury or onset of symptoms
occurred on October 24, 2011 when appellant reportedly experienced sharp pain in his neck and
lower back. Dr. Bishai also noted a history of a previous back injury on March 29, 2011 when
appellant lifted a package from the rear of his postal vehicle.4 Appellant’s current complaints
included pain and stiffness in the neck and back.
On physical examination, Dr. Bishai noted tenderness, muscle spasm and reduced range
of motion in the cervical and dorsolumbar spine. He provided 11 separate diagnoses, which
included chronic cervical strain, cervical disc syndrome and C4-5 disc herniation with
compression of the thecal sac. Dr. Bishai also diagnosed a two-millimeter broad-based left
posterolateral disc herniation at C5-6 with compression on the thecal sac and moderate left-sided
neural foraminal stenosis. Additional diagnoses included spondylitic changes at C5-6, chronic
muscle strain of the dorsal region of the spine, chronic lumbosacral strain, lumbar disc
syndrome, bulging discs at L4-5 and L5-S1, bilateral lower extremity radiculopathy and bilateral
upper extremity radiculopathy.
Dr. Bishai attributed appellant’s current symptoms to the October 24, 2011 accident,
which he characterized as an aggravation of a preexisting condition of March 29, 2011. He
explained that the work-related injuries and symptoms were easily connected, noting that
appellant’s letter carrier duties involved bending, stooping, lifting, casing mail, as well as
twisting and turning of his neck and back. Dr. Bishai stated that the combination of all these
movements resulted in neck and back disc injuries that developed into degenerative disc disease,
which caused appellant’s current symptoms. In an October 15, 2012 follow-up examination
report, Dr. Bishai reiterated his diagnoses.
On November 19, 2012 Dr. Bishai expressed familiarity with appellant’s job duties
having reviewed his detailed statement. He noted that appellant’s claim had been denied, which
he characterized as unfortunate. Dr. Bishai reiterated that the October 24, 2011 injury had
aggravated appellant’s preexisting condition of March 29, 2011. He stated that individuals who
worked as letter carriers developed degenerative disc disease and degenerative arthritis of the
cervical spine and dorsolumbar spine. Dr. Bishai reiterated his opinion on December 19, 2012.
4

OWCP accepted appellant’s March 29, 2011 employment injury for lumbar sprain (xxxxxx800).

3

On December 3, 2012 appellant requested reconsideration based on Dr. Bishai’s
November 19, 2012 report.
In a January 18, 2013 decision, OWCP reviewed the merits of appellant’s claim and
denied modification of the July 10, 2012 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.6
ANALYSIS
The November 3, 2011 cervical MRI scan does not address whether appellant’s
employment duties either caused or contributed to the noted cervical disc herniations and
degenerative osteoarthritis. Similarly, Dr. Grana’s November 2011 reports do not address the
cause of the diagnosed cervical herniated disc, cervical facet arthrosis and cervical degenerative
joint disease. Consequently, this evidence is insufficient to satisfy appellant’s burden of
demonstrating that his claimed conditions are employment related.
When Dr. Bishai examined appellant on September 13, 2012, he provided diagnosis of
the cervical and lumbar spine, as well as appellant’s bilateral upper and lower extremities. His
diagnosed cervical disc syndrome and herniations; however, it is unclear what evidence
Dr. Bishai relied upon in support of his diagnosis of lumbar disc syndrome, bulging discs at L4-5
and L5-S1 and bilateral upper/lower extremity radiculopathy. It is not clear whether he reviewed
the cervical MRI scan of November 3, 2011.
Regarding the issue of causation, Dr. Bishai characterized appellant’s October 24, 2011
employment injury as an aggravation of his preexisting condition of March 29, 2011. But
nowhere in his various reports does he specifically address the nature of appellant’s preexisting
condition. OWCP previously accepted a lumbar sprain under claim number xxxxxx800 with a
March 29, 2011 date of injury. Dr. Bishai described appellant’s March 29, 2001 injury as having
5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996).
6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

occurred while lifting a package from the rear of a postal vehicle. At the time, appellant
reportedly felt severe, sharp pain in his lower back. Dr. Bishai did not provide a specific
diagnosis associated with appellant’s March 29, 2001 low back injury. He failed to explain how
the low back injury in March 2011 subsequently evolved into a cervical, thoracic or lumbar
conditions affecting appellant’s upper and lower extremities. The Board further notes that, while
appellant attributed his condition, in part, to carrying a 35-pound mail sack, constant walking and
walking up stairs, Dr. Bishai did not acknowledge these specific employment factors. In his
November 19, 2012 report, Dr. Bishai generally stated that individuals who work as letter
carriers develop degenerative disc disease and degenerative arthritis of the cervical spine and
dorsolumbar spine.
A physician’s opinion on causal relationship must be supported by medical rationale
explaining the nature of the relationship between the diagnosed conditions and appellant’s
specific employment exposure.7 Also, the opinion must be based on a complete factual and
medical background.8 Dr. Bishai’s opinion lacks adequate medical rationale and appears based
on an incomplete factual and medical history. Consequently, the Board finds that the medical
evidence is insufficient to establish that appellant’s diagnosed conditions are causally related to
his October 24, 2011 employment activities.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.9
CONCLUSION
Appellant failed to establish that his diagnosed conditions are causally related to his
accepted employment exposure.

7

Id.

8

Id.

9

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605, 10.607.

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ORDER
IT IS HEREBY ORDERED THAT the January 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF JUSTICE, NATIONAL
)
ADVOCACY CENTER, Columbia, SC, Employer )
__________________________________________ )
N.B., Appellant

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

Docket No. 10-1373
Issued: February 4, 2011

Case Submitted on the Record

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

JURISDICTION
On April 22, 2010 appellant filed a timely appeal from a March 25, 2010 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration without a
merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
decision. Because more than 180 days elapsed between the most recent merit decision of the
Office dated May 15, 2009 and the filing of this appeal, the Board lacks jurisdiction to review
the merits of the case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a merit review under 5 U.S.C. § 8128(a).

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant has up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2) (2008). For final adverse 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) (2009).

FACTUAL HISTORY
On October 23, 2007 appellant, then a 58-year-old publications programs manager, filed
a traumatic injury claim alleging that she sustained low back pain on October 22, 2007 as a result
of lifting and carrying boxes. She stopped working on October 25, 2007 and returned five days
later. Although the Office received the claim in 2007, no formal action was taken by the Office
until April 6, 2009 when the Office informed appellant that the evidence submitted was
insufficient to establish her claim and advised her about the evidence needed to establish her
claim.
An October 25, 2007 Form CA-16 issued by the employing establishment and completed
by Carlotta M. Davis, a nurse practitioner, noted that appellant complained of low back pain due
to lifting boxes at the workplace and denied any history of a similar injury. The nurse diagnosed
low back pain based on a lumbar spine x-ray and checked “yes” in response to a form question
asking whether appellant’s condition was caused or aggravated by her employment and referred
appellant to a chiropractor. She advised in an October 25, 2007 work release that appellant could
return to modified duty on November 1, 2007.
Appellant submitted an October 25, 2007 note signed by the nurse practitioner for
physical therapy and receipts of physical therapy treatments from October 25, 2007 through
April 8, 2008.
An October 25, 2007 evaluation from Dr. James Gettys, a Board-certified diagnostic
radiologist, found mild narrowing of appellant’s L5-S1 disc space. A March 10, 2008 magnetic
resonance imaging report by Dr. Robin Daum-Kowalski, a Board-certified diagnostic radiologist,
revealed a central and slightly left paracentral disc protrusion of the L5-S1.
A nurse practitioner’s March 10, 2008 report noted that appellant complained of low back
pain beginning two months earlier when she lifted heavy boxes and diagnosed low back pain.
On October 14, 2008 she noted that appellant complained of low back pain radiating to her legs
that began two weeks earlier at home. The nurse practitioner diagnosed left sciatica after
appellant exhibited restricted range of motion of the back and left hip due to pain and a positive
straight leg raise test. Her February 11 and 25, 2009 reports detailed similar symptoms occurring
on February 6, 2009 and diagnosed low back pain, intervertebral disc protrusion and radicular
pain.
A February 25, 2009 report from Dr. Randall G. Drye, a neurosurgeon, indicated that
appellant had a spontaneous onset of hip, back, buttocks and leg pain on February 6, 2009.
Appellant stated that she had no prior history of significant back or leg difficulties before
February 6, 2009. Dr. Drye examined her and observed pain on flexion at the waist, a positive
straight leg raise result and tenderness to palpation over the L5-S1 region, particularly over the
left sciatic notch. He diagnosed “incomplete” left S1 radiculopathy and corresponding L5-S1
disc herniation.
In a March 6, 2009 report, Dr. Eva Jane Rawl, a Board-certified anesthesiologist, advised
that appellant presented low back pain radiating down her left lower extremity to the ankle since

2

February 6, 2009. She examined her, observed a slightly antalgic gait sympathetic to the left and
recommended an L5-S1 epidural.2
By decision dated May 15, 2009, the Office denied appellant’s claim, finding that the
medical evidence did not establish that the October 22, 2007 lifting incident caused her claimed
low back condition.
Appellant requested reconsideration on March 13, 2010. She submitted copies of the
nurse practitioner’s March 10, 2008 and February 11, 2009 reports and a notarized August 15,
2009 statement from her supervisor, detailing that she injured her back at work while preparing
booking shipments in October 2007. The supervisor added that appellant retired in April 2009.
By decision dated March 25, 2010, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was not sufficient to warrant review
of the May 15, 2009 decision.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must either: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 Where the request for reconsideration fails to meet at least one of
these standards, the Office will deny the application for reconsideration without reopening the
case for a review on the merits.5
ANALYSIS
The Office’s May 15, 2009 merit decision denied appellant’s claim on the grounds that
the medical evidence did not establish that her claimed low back condition was causally related
to the October 22, 2007 lifting incident. Appellant requested reconsideration on March 13, 2010
and submitted her supervisor’s August 15, 2009 statement who noted appellant’s duties and
attributed her injury to her employment. This statement neither showed that the Office

2

Appellant also offered numerous medical records for the period November 14, 2007 to April 15, 2009 related to
other conditions, including breast cancer, hypertension, hypothyroidism, hyperlipidemia, hypercholesterolemia and
urinary tract infection. None of these conditions are at issue in this case.
3

5 U.S.C. § 8128(a). See generally 5 U.S.C. §§ 8101-8193.

4

E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

5

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

3

erroneously applied or interpreted a specific point of law nor advanced a relevant legal argument
not previously considered by the Office.6
Appellant also submitted a nurse practitioner’s March 10, 2008 and February 11, 2009
reports. As a nurse practitioner is not a physician under the Act, these reports cannot be
considered as competent medical evidence by the Board.7 As the underlying issue is medical in
nature, reports from a nurse practitioner do not constitute relevant evidence. Furthermore, copies
of these reports were already received by the Office well before issuance of its May 15, 2009
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.8
Because appellant did not show that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence, she is not entitled to a review of the merits of her claim.
On appeal, appellant argues that her low back injury was due to lifting heavy boxes of
books in the performance of her employment duties, she supplied her entire medical record and
the nurse practitioner’s February 11 and March 10, 2008 reports should have been reviewed
since she was assured by the nurse practitioner that they were “considered” signed by the
supervising physician. A medical report may not be considered as probative medical evidence if
there is no indication that the person completing the report qualifies as a physician as defined in
5 U.S.C. § 8101(2). The Act defines physician as: “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their
practice as defined by State law.”9 The nurse practitioner’s reports bore no such signature. As
discussed above, the evidence did not warrant a further review of the merits under 20 C.F.R.
§ 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

6

Moreover, as causal relationship is a medical issue, appellant’s supervisor is not qualified to give his opinion on
that matter. See I.J., 59 ECAB 408, 415 (2008); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical opinion, in
general, can only be given by a qualified physician).
7

5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004).

8

Edward W. Malaniak, 51 ECAB 279 (2000).

9

Vickey C. Randall, 51 ECAB 357 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charlotte, NC, Employer
__________________________________________

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

Docket No. 18-1299
Issued: November 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 19, 2018 appellant, through counsel, filed a timely appeal from a June 6, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury on
January 27, 2017 while in the performance of duty.

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.

FACTUAL HISTORY
On February 21, 2017 appellant, then a 46-year-old master behavioral detection
analyst/officer) filed a traumatic injury claim (Form CA-1) alleging that on January 27, 2017 at
approximately 2:40 p.m. she sustained sprains/strains of her neck, arm, and back when she was a
passenger in an employee airport shuttle bus traveling to the employee parking lot. She explained
that the bus driver slammed on the brakes to avoid hitting another bus. Appellant also alleged that
the bus driver was speeding and tailgating. On the reverse side of the claim form, the employing
establishment noted that her regular shift was from 6:00 a.m. to 2:30 p.m. Appellant did not stop
work.
In a February 3, 2017 ambulatory work/school release form, Dr. Louie A. Anquilo, a
Board-certified family practitioner, provided work restrictions for appellant, including no lifting
more than five pounds.
On March 6, 2017 the employing establishment controverted the claim. It argued that
appellant was not in the performance of duty at the time of injury because she was “not on shift
when the injury occurred, she was not inside the airport at a work location, and she was not actually
in the performance of duty, screening passengers.”
In development letters dated March 6, 2017, OWCP requested additional factual and
medical information from both appellant and the employing establishment. It posed eight
questions requesting that the employing establishment provide information relative to parking and
transportation at appellant’s duty station, including whether or not appellant was injured while on
the employee bus #108, whether the bus and parking lots were owned, controlled, or managed by
the employing establishment, and whether appellant was required to use/park in the “employee
lot” or if other parking was available.
In a narrative statement dated January 27, 2017, appellant provided additional details of
the incident and indicated that at approximately 2:40 p.m. on that date she was waiting for the
employee bus, which was delayed, to transport her to the employee parking lot. Eventually, three
employee buses arrived at the same time and she boarded the first bus #108, along with her
coworkers E.P. and C.B., as well as other airport employees. After the bus passed the upper and
lower level merger and the hourly parking garage and was half-way to the employee parking lots,
the driver slammed on the brakes while driving on the main road. Appellant asserted that the
driver was speeding and tailgating another bus. She reported that everyone on the bus was
screaming and yelling at the driver asking, “Why are you speeding?” Appellant held onto a railing
so that she would not fall on the floor and moved forward and backwards while still hanging onto
the railing. E.P. was in the front of the bus holding onto the railing and was thrown forward after
the driver suddenly braked and hit the windshield and the front inside panel of the bus. The driver
did not ask anyone if they were hurt and continued to drive. Appellant exited the bus in the
employee lot 1. She got into her car and started driving, but could not turn her neck to the left and
experienced pain in her left arm and shoulder. Appellant returned to work on January 28, 2017,
the following day, and reported the incident to her manager, E.M., who provided her with the
contact information for the bus driver’s supervisor, L.D. She called L.D. and he advised her to
make a report, but when she followed up with him to inquire when he was available to meet, he
indicated that he had nothing to do with it and that she would need to contact T.R. in Risk
Management who would be in on February 2, 2017. Appellant advised L.D. that she was in pain

2

and needed to get to the urgent care. L.D. responded by saying that he did not know what to tell
her. Appellant went to an urgent care facility on January 28, 2017.
Appellant also submitted a report dated January 28, 2017 from Dr. Anquilo diagnosing
elevated blood pressure, neck muscle spasm, strain of back, and strain of neck muscle.
On March 2, 2017 the employing establishment offered appellant a limited-duty job as a
modified master behavioral detection officer (BDO) effective March 3, 2017, in accordance with
Dr. Anquilo’s February 3, 2017 restrictions. Appellant accepted the modified job offer.
In a statement dated March 14, 2017, the employing establishment indicated: (1) appellant
did suffer an injury while riding on the employee bus #108; (2) the bus and parking lot was not
owned, controlled, or managed by the Transportation Security Agency (TSA), but the City of
Charlotte; (3) the lot was available for all airport employees to use, including airline employees,
concession employees, and TSA employees, but the general public did not have access to the
parking lot; (4) appellant was not required to park in this parking lot and there was a parking lot
available directly across from the terminal, within walking distance, however there was a fee to
park in that lot; (5) parking spaces in the airport employee lot were not assigned by the agency;
(6) the parking lot was monitored on occasion to ensure that cars in that lot had airport issued hang
tags; (7) TSA uniformed employees did not pay for parking as TSA paid the airport directly for
their parking hang tags; and (8) appellant was not entitled to reimbursement for travel to and from
the parking lot or for parking expenses, but employees did not pay for parking expenses.
In a March 9, 2017 report, Tony Connot, a certified physician assistant, diagnosed left
shoulder pain and indicated that appellant had sustained a left shoulder injury on January 27, 2017
when a bus she was riding at work to the parking lot stopped suddenly.
A magnetic resonance imaging (MRI) scan of the left shoulder dated March 14, 2017
demonstrated mild acromioclavicular (AC) degenerative joint disease (and minimal subacromial/
subdeltoid bursitis.
In a March 23, 2017 report, Dr. Scott Burbank, a Board-certified orthopedic surgeon,
diagnosed left shoulder sprain. He asserted that appellant injured her left shoulder at work on
January 20, 2017 while she was on a bus on her way to work. Appellant explained that she was
holding the handrail and was abruptly thrown forward. She described an abduction and externally
rotated force to her left shoulder. Appellant also stated that her shoulder began hurting
immediately after her injury. Dr. Burbank released appellant to return to work without restrictions
on March 24, 2017.
By decision dated April 10, 2017, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that her injury occurred in the performance of duty.
It found that the injury occurred after appellant’s work shift, on a bus which was not owned and
operated by the employing establishment, and that she was not performing any part of her assigned
duties at the time of the event.
On March 9, 2018 appellant, through counsel, requested reconsideration and argued that
the injury occurred on the employing establishment’s premises because: (1) the employee parking
lot was monitored by the employing establishment; (2) appellant’s parking was full subsidized by
the TSA; (3) the parking area for employees at the airport was separate and apart from public
parking areas and could only be accessed via employee parking buses from the terminal area; and
3

(4) the option of enrolling with the prior TSA parking contractor had been cancelled, thus, this was
the only parking option available to TSA employees at the airport. Counsel also submitted the
Board’s decision in M.C., Docket No. 09-1718 (issued March 5, 2010) in support of his arguments.
OWCP received a memorandum dated March 1, 2018 from M.A., an employee parking
coordinator, addressed employee rights and responsibilities as related to parking at Charlotte
Douglas International Airport (CLT) in Charlotte, North Carolina. The memorandum stated that
all TSA-CLT employees were welcome to enroll in the employee parking assistance program
(EPAP) and beginning April 1, 2016 screening personnel were eligible for fully-subsidized
parking, including BDOs. It further noted that employees could not be enrolled in both transit
benefits (Ex: bus, light rail) and the parking subsidy program (free airport parking). Nonscreening
personnel were not eligible for the fully-subsidized parking benefit and the cost of employee
parking at CLT Airport was $25.00 per month.
In a signed sworn affidavit dated March 8, 2018, appellant confirmed that she was
employed by TSA as a behavioral detection analyst and had been so employed for nine years. She
worked at the CLT Airport. Appellant stated that her work location was inside the terminal at the
security checkpoints; however, she was “required” to park her vehicle in an employee parking lot
and thereafter take a city-owned employee bus to the terminal. Beginning in 2016 TSA began
paying the cost for her parking, access to the parking lot was controlled by key card, and the TSA
monitored employee use to prevent unauthorized access during nonwork hours. The employing
establishment provided the parking at no cost to employees. The general public did not have access
to the parking garage, as it was solely for use by airport employees only. The parking location
was over two miles from the terminal and employees were required to take a city bus to and from
the location. Appellant stated that there was no alternate parking available for employees other
than this lot and it was on the bus en route to the employee parking lot that she sustained her injury
on January 27, 2017.
Counsel further submitted a copy of an employing establishment PowerPoint presentation
entitled “Fully Subsidized Parking Implementation (EPAP Airports)” that provided fully
subsidized parking for screening personnel, including transportation security officers (TSO) and
behavior detection officers. The program’s start date was targeted for April 1, 2016. Fully
subsidized parking was for designated lots only.
By decision dated June 6, 2018, OWCP denied modification of its April 10, 2017 decision,
finding that appellant was no longer performing her federal duties at the time of injury, the accident
happened when the shuttle bus was en route to a parking lot, which was not owned, operated, or
maintained by the Federal Government, the adjacent area was owned and controlled by the City of
Charlotte, and all the employees of the airport (including nonfederal employees) were allowed to
park there. It concluded that because neither the parking lot, nor the shuttle bus, was owned,
operated, or maintained by the employing establishment for the use of its employees, and she had
another option for parking, appellant was not injured on the employing establishment’s premises
or an extension of such premises and she was not performing employment-related work at the time
of the incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
4

United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.6 The phrase sustained while in the performance
of duty is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws, namely, arising out of and in the course of performance.7 In the course of
employment relates to the elements of time, place, and work activity. To arise in the course of
employment, an injury must occur at a time when the employee may reasonably be stated to be
engaged in the employing establishment business, at a place where he or she may reasonably be
expected to be in connection with his or her employment, and while he or she was reasonably
fulfilling the duties of his or her employment or engaged in doing something incidental thereto.8
As to an employee having fixed hours and a fixed place of work, an injury occurring on
the premises while the employee is going to and from work before or after working hours or at
lunch time is compensable, but if the injury occurs off the premises, it is not compensable, subject
to certain exceptions. One of these is the proximity exception to the premises rule, which allows
constructive extension of the premises to those hazardous conditions which are proximate to the
premises and may, therefore, be considered as hazards of the employment.9 Underlying the
proximity exception is the principle that course of employment should extend to an injury that
occurred at a point where the employee was within the range of dangers associated with the
employment.10 The most common ground of extension is that the off-premises point at which the
injury occurred lies on the only route, or at least on the normal route, which employees must
traverse to reach the premises, and that, therefore, the special hazards of that route become the
hazards of the employment.11 This exception contains two components. The first is the presence

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

5 U.S.C. § 8102(a); J.K., Docket No. 17-0756 (issued July 11, 2018).

7

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
8

See J.K., supra note 6; Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B.
Barenkamp (Joseph L.Barenkamp), 5 ECAB 228 (1952).
9

K.D., Docket No. 18-0617 (issued February 13, 2019); D.K., Docket No. 11-1029 (issued February 1, 2012).

10

See J.K., supra note 6; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

11

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3) (2006). See also J.K., supra note 6; R.O.,
Docket No. 08-2088 (issued May 18, 2009).

5

of a special hazard at the particular off-premises point. The second is the close association of the
access route with the premises, so far as going and coming are concerned.12
ANALYSIS
The Board finds that the case is not in posture for decision.
In determining whether a bus should be considered part of the employing establishment’s
premises, the Board must first consider factors to determine whether the parking facility was under
sufficient control by the employing establishment. Factors to be considered include whether the
employing establishment contracted for its exclusive use by its employees, whether spaces were
assigned by the employing establishment, whether the area was checked to see that no
unauthorized cars were parked in the lot, whether parking was provided without cost to the
employees, whether the public was permitted to use the lot, and whether other parking was
available to the employees. Secondly, the Board must determine whether the shuttle bus is to be
considered part of the premises of the employing establishment.
OWCP in a March 6, 2017 development letter, requested additional factual information
from the employing establishment with regard to whether appellant was in the performance of duty
when injured on January 27, 2017. The employing establishment, however, provided only cursory
responses to the questions posed. For example, it contended that appellant was able to park in a
lot closer to the airport facility; however, it did not elaborate on location, use, and TSA employee
access to that lot at the time of appellant’s injury. Conversely, appellant maintained that the
satellite lot was her only available parking option. As well, the record contains references to a
number of parking lots that were available for employees; however, no specific information was
provided as to their location, usage, and TSA employee access. It therefore remains unclear as to
whether the satellite parking lot that appellant was traveling to at the time of the injury was the
only place that appellant was permitted to park at the time of her injury. The employing
establishment also failed to elaborate on the location, route, and criteria for the use of shuttle bus
#108.
OWCP’s procedures provide that it should obtain relevant information, including relevant
diagrams, from an official superior if it requires clarification before determining whether the
employee was on the premises.13 As such, the Board finds that the case record is incomplete.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source. The
Board finds that OWCP did not sufficiently develop the evidence regarding whether appellant was
on the premises of the employing establishment at the time of injury.
On remand OWCP should obtain additional information from the employing
establishment. The deficiencies in the evidence of record, as noted herein, should be addressed so
12

Id. at § 13.01(3)(b).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(f) and (g)
(August 1992); see also L.P., Docket No. 17-1031 (issued January 5, 2018).

6

that an informed determination can be made regarding whether appellant was in the performance
of duty at the time of her injury. If so, OWCP should adjudicate whether the factual and medical
evidence establishes that she sustained an employment injury as alleged. Following this and other
such development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision.
Issued: November 5, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bolton, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-131
Issued: January 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On October 17, 2012 appellant sought appeal from a decision of the Office of Workers’
Compensation Programs (OWCP) dated April 20, 2012.
The Board assigned Docket
No. 13-131.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation
Act (FECA).1 The case record as transmitted to the Board does not contain the final adverse
decision of OWCP, which is the subject of this appeal. The Board notes that the case record
does contain a fiscal record, dated April 12, 2012, which shows payment of a net schedule award
for bilateral lower extremity impairment of $11,940.48. However, as the record does not contain
the actual final decision regarding this schedule award, the Board is unable to review the award
and verify that the complete record has been made available to the Board. Accordingly,

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

IT IS HEREBY ORDERED THAT the appeal docketed as No. 13-131 is remanded to
OWCP for reconstruction of the record, to be followed by an appropriate decision.
Issued: January 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF AIR FORCE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-2410
Issued: April 6, 2011

Case Submitted on the Record

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

On September 24, 2010 appellant filed a timely appeal of the May 19, 2010 decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration on the
grounds that it was untimely and failed to establish clear evidence of error. She also requested
an oral argument in the matter. This was docketed as appeal No. 10-2410.
On August 20, 2008 appellant filed a claim for twisted bowel and abdominal hernia due
to her employment activities. By decision dated January 26, 2009, the Office denied her claim
on the grounds that the medical evidence was insufficient to establish that the claimed conditions
were causally related to the established work-related event(s).
In a January 15, 2010 letter, received by the Office February 2, 2010, appellant stated that
she disagreed with the denial of her claim and alleged her physician did not know the
requirements of or the strenuous nature of her job. She described her job duties and set forth
allegations as to how her job caused and/or contributed to her twisted bowel and abdominal
hernia, for which she underwent surgery on June 10, 2008. Appellant stated, “I was also told
that I could have my claim reconsidered. This is my letter stating that this injury could have only
happened by doing my job installing engine mounts.” On February 26 and March 19, 2010

appellant telephoned the Office to verify if it received her reconsideration request.1 On
March 22, 2010 she submitted a reconsideration request via an appeal request form. The Office
acted on the March 22, 2010 request for reconsideration and issued its May 19, 2010 decision.
The Board has considered the matter and finds that appellant’s January 15, 2010 letter
constituted a request for reconsideration. The Board has held that, while no special form is
required, there may be a request for reconsideration when such request is made in writing,
identifies the decision and the specific issue for which reconsideration is being requested, and is
accompanied by evidence or argument not considered previously.2 The January 15, 2010 letter
mentioned the word reconsideration and appellant noted her disagreement with the Office’s
decision. Furthermore, her January 15, 2010 letter referenced the claim number and referenced
the denial of her claim. The Board finds that appellant’s January 15, 2010 letter constituted a
request for reconsideration.
The Board additionally finds that the January 15, 2010 request constituted a timely
request for reconsideration. A right to reconsideration within one-year accompanies any merit
decision on the issues, including a decision issued by the Board.3 Office procedures, at Chapter
2.1602.3(b)(1), provide that timeliness for a reconsideration request is determined not by the date
the Office receives the request, but by the postmark on the envelope.4 These procedures provide
that, if the postmark or other evidence establishing the date of mailing is not available, the date
of the letter itself should be used.5 The Board finds that, since the Office did not retain the
envelope containing the January 15, 2010 letter and there is no other evidence to establish the
date of mailing, the timeliness of the request will be determined by the date of the letter,
January 15, 2010. The Board notes that appellant’s request was within one year of the Office’s
January 26, 2009 decision. As appellant’s request was timely, the Office improperly denied
appellant’s request by applying the legal standard reserved for cases where reconsideration is
requested after more than one year. The Board will set aside the May 19, 2010 decision and
remand the case for consideration of appellant’s reconsideration request under the standard for
timely reconsideration requests.6 After such further development as the Office deems necessary,
it should issue an appropriate decision to protect appellant’s appeal rights.7

1

In her initial call, appellant referred to her letter as an appeal but, when asked by the claims examiner what type
of appeal, she indicated it was a reconsideration request.
2

See Jack D. Johnson, 57 ECAB 593 (2006) and cases cited therein.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004);
Robert F. Stone, 57 ECAB 292 (2005); Larry J. Lilton, 44 ECAB 243 (1992).
4

Federal (FECA) Procedure Manual, id. See 20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, id. See Donna M. Campbell, 55 ECAB 241 (2004).

6

See 20 C.F.R. § 10.606(b).

7

In light of the disposition of this matter, appellant’s request for oral argument is moot.

2

IT IS HEREBY ORDERED THAT the May 19, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: April 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 06-2121
Issued: September 24, 2007

Case Submitted on the Record

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

JURISDICTION
On September 18, 2006 appellant, through his attorney, filed a timely appeal of the
Office of Workers’ Compensation Programs’ merit decision dated September 5, 2006
terminating his medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s medical
benefits due to his February 7, 2000 employment injury on September 5, 2006.
FACTUAL HISTORY
On February 7, 2000 appellant, then a 32-year-old letter carrier, filed an occupational
disease claim alleging that he sustained aggravation of his right shoulder, neck and back

conditions due to working beyond his light-duty restrictions.1 He first became aware of his
condition on January 8, 1999 and first related this condition to his employment on July 21, 1999.
In a report dated August 31, 1999, appellant’s attending physician, Dr. Douglas G. Kimmel, an
osteopath, noted the initial employment injury on January 8, 1999. He stated that appellant’s
condition had improved and that he was working six hours a day. However, appellant developed
increased symptoms in the neck and shoulders as a result of using a postal jeep with manual
steering and a heavy sliding door. He also utilized a double mail sack which irritated his neck
condition. Dr. Kimmel found that diagnostic testing revealed impingement of the cervical
peripheral nerve root which was not present on testing following his initial injury. The Office
accepted appellant’s claim for aggravation of cervical and thoracic strains on July 8, 2000.
On June 8, 2000 the Office referred appellant for a second opinion evaluation with
Dr. Richard Mandel, a Board-certified orthopedic surgeon, who submitted a report dated July 28,
2000 and stated that appellant underwent right shoulder acromioplasty on October 13, 1999.
Dr. Mandel found no objective findings supporting appellant’s disability for work or the need for
further medical treatment. He requested to review additional test results. On September 4, 2000
Dr. Mandel found that appellant’s electromyelogram was normal and advised that he could
return to full duty with no additional treatment.
Appellant submitted a report dated August 17, 2000 from Dr. Brian Kelly, a Boardcertified neurologist, who disagreed with Dr. Mandel. Dr. Kelly noted that appellant exhibited a
positive Adson’s maneuver with ulnar weakness as well as decreased sensation in the right arm.
On September 11, 2000 he diagnosed thoracic outlet syndrome and cervical radiculopathy.
The Office proposed to terminate appellant’s compensation benefits on October 18, 2000.
By decision dated November 22, 2000, the Office terminated appellant’s compensation and
medical benefits due to his February 7, 2000 claim for occupational disease. Appellant requested
an oral hearing and, by decision dated April 5, 2001, an Office hearing representative set aside
the Office’s November 22, 2000 decision finding that Dr. Mandel’s report was not based on a
complete factual background and could not constitute the weight of the medical opinion
evidence. The hearing representative found that appellant’s January 8, 1999 and February 7,
2000 claims should be combined; as there was a conflict of medical opinion evidence regarding
appellant’s thoracic outlet syndrome and his continuing disability and medical residuals as a

1

Appellant has filed several claims before the Office. He sustained a traumatic injury on January 8, 1999 which
the Office accepted for thoracic outlet syndrome and neck and back strains. Appellant filed a claim for recurrence
of disability due to the January 8, 1999 employment injury beginning on July 21, 1999. The Office authorized
compensation benefits due to this recurrence through January 14, 2000. Appellant filed a traumatic injury claim on
July 21, 2001 which the Office accepted for aggravation of cervical and thoracic strains. He sustained an
aggravation of lumbar strain on September 18, 2001 as the result of a dog attack while in the performance of duty.
The Board addressed the September 18, 2001 claim in an order dated June 14, 2007, Docket No. 06-1901, which
reversed the Office’s March 1, 2006 and June 2, 2005 decisions terminating appellant’s compensation benefits on
the grounds that he refused suitable work. The Board also issued an order remanding case on September 12, 2007,
Docket No. 07-1052, remanding the case to the Office for consideration of appellant’s claims for recurrences of
disability on June 29 and July 27, 2005 causally related to his September 18, 2001 employment injury.

2

result of the February 7, 2000 employment injury. She reinstated appellant’s compensation
benefits retroactive to the November 22, 2000 termination decision.2
By decision dated December 31, 2001, the Office denied appellant’s claim for medical
expenses for chiropractic treatment. Appellant, through his attorney, requested an oral hearing.
By decision dated November 7, 2002, the hearing representative set aside the Office’s
December 31, 2001 decision and remanded for further development with regard to the medical
necessity of chiropractic treatment.
An Office medical adviser reviewed appellant’s records on December 31, 2002. He
stated that appellant’s chiropractic bills had been paid. The Office medical adviser stated that
several physicians established that appellant’s minor work injuries had resolved. He opined that
“excessive and prolonged physical therapy” had not been effective in appellant’s treatment and
should not be continued.
In a report dated December 19, 2001, Dr. Kimmel diagnosed cervical thoracic and
lumbosacral sprain and strain, herniated disc at C3-4 and bulging disc at C4-5, C5-6 and C6-7,
cervical spondylosis with spinal stenosis at C6-7 with mild cord compression and bulging discs
at L1-2 and L4-5. He opined that these conditions resulted from the accepted February 7, 2000
work injuries. Dr. Kimmel stated that chiropractic treatment helped relieve appellant’s pain and
maintain his function.
The Office issued a decision on March 20, 2003 denying appellant’s claim for wage-loss
and medical benefits including medical bills for chiropractic treatment due to the February 7,
2000 employment injury. Appellant requested an oral hearing and by decision dated October 22,
2003, the hearing representative set aside the Office’s March 20, 2003 decision and remanded for
the issuance of a pretermination notice.
In a letter dated December 2, 2003, the Office proposed to terminate appellant’s benefits
due to his February 7, 2000 occupational disease claim. The Office provided a history of
appellant’s various accepted claims beginning on January 8, 1999 and relied on medical reports
contained in those claims to terminate appellant’s compensation benefits.3 The Office noted that
appellant’s compensation benefits due to his January 8, 1999 traumatic injury had been
terminated based on the report of Dr. John T. Williams, an osteopath and a Board-certified
orthopedic surgeon, dated October 26, 1999. Dr. Donald F. Leatherwood, a Board-certified
orthopedic surgeon, found that appellant had suffered an aggravation of his underlying neck

2

The case record before the Board does not contain the January 8, 1999 claim file, despite the directive of the
hearing representative to combine the files.
3

The only physician consulted regarding appellant’s February 7, 2000 occupational disease claim was
Dr. Mandel, a second opinion physician, who submitted a report dated July 28, 2000.

3

condition of degenerative disease of the cervical spine as a result of the July 21, 2001
employment injury.4 The Office stated:
“Based on the weight of medical evidence represented by the opinions of
Drs. Steven Valentino, Mandel, Williams, D.O., Anthony W. Salem, M.D., and
Leatherwood it has been established that the claimant recovered from the residual
effects of the work injury and was not in need of ongoing supervised medical
care, which includes chiropractic physical therapy treatment.”
The Office noted that the December 31, 2001 decision denying chiropractic bills was
remanded for further development by the hearing representative. The Office medical adviser
listed the amount paid for chiropractic services and the claims examiner concluded that this
treatment should not be continued for the accepted work injuries. The Office further stated:
“Dr. Williams’ opinion is considered as the [i]ndependent specialist in this case as he had the
benefit of reviewing a detailed, accurate statement of accepted facts, examining the claimant and
the entire case file.” The Office also accorded the weight of the medical opinion evidence to the
March 19, 2002 opinion of Dr. Salem, a Board-certified orthopedic surgeon. The Office
proposed to terminate medical treatment including medical bills for chiropractic treatment and
compensation benefits.
By decision dated January 21, 2004, the Office terminated appellant’s claim for medical
benefits only.5
Appellant requested an oral hearing. His attorney appeared at the oral hearing on
September 28, 2004. By decision dated December 6, 2004, the hearing representative affirmed
the January 21, 2004 decision, finding that appellant had no continuing residuals from the
February 7, 2000 occupational disease claim entitling him to medical benefits.
Appellant appealed the December 6, 2004 decision to the Board. In an order dated
January 19, 2006, the Board remanded the case for reconstruction and proper assemblage of the
case record.6 The Board noted that the medical reports of Drs. Valentino, Williams, Salem and
Leatherwood did not appear in the record.7 The Board instructed the Office to include these
reports in the record and to provide the factual basis of these reports as well as the basis for the

4

Both Drs. Williams and Leatherwood were designated as impartial medical specialist in other claims before the
Office. As these physicians were not selected to resolve a conflict of medical opinion evidence in the occupational
disease claim currently before the Board, their reports are not entitled to special weight. Compare Joseph Roman,
55 ECAB 233 (2004) (finding that the report of a physician not properly designated as an impartial medical
examiner is not entitled to special weight).
5

The Office has not issued a final decision denying any payment for chiropractic services already rendered.
Therefore, the Board will not address this issue on appeal. 20 C.F.R. § 501.3(2)(c). The only issue before the Board
is whether the Office properly terminated appellant’s medical benefits due to the February 7, 2000 claim including
ongoing chiropractic expenses.
6

Docket No. 05-1159 (issued July 19, 2006).

7

The record does not include a copy of a report from Dr. Valentino.

4

selection of the physicians in the various claims. Following this development of the claim, the
Board directed the Office to issue an appropriate final decision.
Following the Board’s January 19, 2006 order, the Office included additional medical
evidence and documents referencing appellant’s claims within the record of the February 7, 2000
occupational disease claim currently before the Board.8 This evidence included the fact that the
Office initially referred appellant to Dr. Williams to address his disabling symptoms due to the
accepted January 8, 1999 employment injury.9 In a December 6, 1999 report, Dr. Williams
performed a physical examination and concluded that appellant’s cervical and lumbar sprain and
strains had resolved. He noted that appellant continued to have right shoulder symptoms as a
result of the right shoulder acromioplasty. Dr. Williams concluded that appellant’s accepted
employment injuries had resolved.
Dr. Salem was selected by the Office as a second opinion physician to determine
appellant’s condition and disability due to the September 18, 2001 employment injury. On
March 19, 2002 he stated that appellant demonstrated multiple levels of chronic long-standing
degenerative changes unrelated to the September 18, 2001 employment injury. Dr. Salem
concluded that appellant did not have residuals of the September 18, 2001 employment injury.
Dr. Leatherwood completed a report on January 28, 2003 and opined that appellant’s
cervical fusion was due to the aggravation of his underlying degenerative disease of the cervical
spine on September 18, 2001.10 In a report dated June 1, 2004, he opined that appellant could
work at a sedentary level on a full-time basis.
By decision dated September 5, 2006, the Office reissued the January 21, 2004 decision
terminating appellant’s medical benefits due to the February 7, 2000 occupational disease claim.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.11 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.12 The
Office’s burden of proof in termination compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.13 The
8

The Board again notes that the Office did not combine appellant’s claim files, but only included a portion of the
evidence mentioned in the January 21, 2004 termination decision and the January 19, 2006 order of the Board.
9

As noted, Dr. Williams designation as an impartial medical examiner in the January 8, 1999 injury claim does
not accord his report special weight in the current case. Supra note 3.
10

As noted, the fact that Dr. Leatherwood was an impartial medical examiner in the September 18, 2001
traumatic injury claim does not accord his report special weight in this case. Supra note 3.
11

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

12

Mary A. Lowe, 52 ECAB 223, 224 (2001).

13

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

5

right to medical benefits for an accepted condition is not limited to the period of entitlement of
disability. To terminate authorization for medical treatment, the Office must establish that a
claimant no longer has residuals of an employment-related condition, which require further
medical treatment.14
ANALYSIS
Appellant filed a claim for an occupational disease on February 7, 2000, attributing his
cervical and thoracic conditions to factors of his federal employment. The Office accepted
appellant’s claim for aggravation of cervical and thoracic strains on July 8, 2000. The Office
paid compensation for medical treatment including chiropractic treatment and physical therapy.
The Office terminated authorization for medical treatment due to appellant’s July 21, 1999
occupational disease claim based in part on the report of Dr. Williams, a Board-certified
orthopedic surgeon, which was dated December 6, 1999. Dr. Williams was selected to resolve a
conflict of medical opinion evidence regarding the nature and extent of appellant’s disability as a
result of his initial employment injury of January 8, 1999.15 As this is not the current issue, his
report is not entitled to any special weight regarding appellant’s need for continuing medical
treatment arising from his February 7, 2000 occupational disease claim.16 Dr. Williams
performed a physical examination and concluded that appellant’s cervical and lumbar sprain and
strains had resolved. However, his report was dated December 16, 1999, prior to the filing of
appellant’s February 7, 2000 claim which was accepted for cervical and thoracic strains. At the
time of his examination of appellant, the Office had not yet accepted the aggravation of cervical
and thoracic strains that constitute the basis of this claim. Therefore, the 1999 report of
Dr. Williams predates the accepted injury in this claim and is not relevant to appellant’s
condition on or after February 7, 2000. It does not meet the Office’s burden of proof to
terminate appellant’s compensation benefits due to a lack of medical residuals.
The Office also relied on the March 19, 2002 report of Dr. Salem, a Board-certified
orthopedic surgeon, which stated that appellant demonstrated multiple levels of chronic longstanding degenerative changes unrelated to accepted September 18, 2001 employment injury,
relating to a dog attack. Dr. Salem concluded that appellant did not have residuals of the
September 18, 2001 employment injury accepted for aggravation of a lumbar strain.
Dr. Leatherwood, a Board-certified orthopedic surgeon, completed an impartial medical
examination on January 28, 2003 and opined that appellant’s cervical fusion was due to the
aggravation of his underlying degenerative disease of the cervical spine on September 18, 2001.
These reports offer differing opinions regarding the residuals of appellant’s September 18, 2001
employment injury and do not address the issue of whether appellant required further medical
treatment as a result of the February 7, 2000 claim, accepted for cervical and thoracic strains. As
the reports do not address the central issue in this claim, whether appellant has medical residuals
requiring additional medical treatment as a result of the February 7, 2000 occupational disease
claim, the Office did not rely properly on these reports to terminate appellant’s medical benefits.
14

Mary A. Lowe, supra note 12.

15

The remainder of this record is not currently before the Board.

16

Joseph Roman, supra note 4.

6

The Board finds that the Office has not met its burden of proof to terminate appellant’s
medical benefits as a result of his February 7, 2000 occupational disease claim. Appellant’s
physician, Dr. Kimmel opined that on December 19, 2001 appellant required continued
chiropractic treatment to relieve pain which resulted from the February 7, 2000 claim. The
record currently before the Board does not contain a detailed medical report based on a proper
history of injury which establishes that appellant did not require further medical treatment as a
result of his accepted February 7, 2000 occupational disease claim.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof in establishing that
appellant had no continuing medical residuals as a result of his February 7, 2000 occupational
disease claim.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2006 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 24, 2007
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 13-852
Issued: July 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 26, 2013 appellant, through her representative, filed a timely appeal from
the January 30, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP), which denied her reconsideration request. 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 this nonmerit decision. Since more than 180 days elapsed from the last merit decision of
February 29, 2012 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s March 29, 2012 reconsideration
request under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 5, 2010 appellant, a 58-year-old tax consultant, sustained a traumatic injury in
the performance of duty while moving 70 laptops from the basement, packing them three to a
box and taking them to the mailroom. OWCP accepted her claim for a temporary aggravation of
preexisting lumbar spinal stenosis. Appellant stopped work and received compensation for
temporary total disability beginning April 25, 2010.
On October 18, 2010 appellant returned to work for four hours a day. On January 31,
2011 she increased her workday to five hours. On March 28, 2011 appellant accepted a full-time
limited-duty position as a stakeholder relationship tax consultant.
Appellant again stopped work on July 11, 2011. On July 29, 2011 she filed a recurrence
of disability and claim for compensation alleging a recurrence on May 5, 2011 that caused her to
stop work on July 11, 2011. Appellant explained that her back became more painful on May 4,
2011 while she was typing on her laptop. She got out of her seat several times that day to stand
up. Appellant took medication and tried heat and cold that evening, but she had a flare up the
following morning. She could not straighten up. “My back was so painful I had to call my
daughter to take the bus to my job and drive my car to take me to my doctor appointment.”
Appellant added: “I believe my condition is related to the original injury because the sitting,
reaching and repetitive getting up and down at work has aggravated my back.”
Appellant saw a registered nurse on May 5, 2011, who diagnosed an exacerbation of low
back pain, degenerative disc disease and lumbar radiculopathy. The nurse took appellant off
work that Thursday and Friday and returned her to work the following Monday. On May 10,
2011 Dr. Daryl J. Melzer, a Board-certified internist, signed the nurse’s note and indicated his
agreement.
On May 16, 2011 Dr. Dale E. Bauwens, an attending Board-certified orthopedic surgeon,
noted that appellant had a flare up of back and leg pain that caused her to miss several days of
work. On May 23, 2011 he advised that appellant was off work that day due to back pain.
Dr. Bauwens excused her from work from June 21 to 22, 2011 with a diagnosis of low back pain
and sciatica.
On July 11, 2011 Dr. Bauwens stated: “[Appellant] tells me today [that] she can no
longer work.” Appellant explained that her pain and stress levels were so high, she was
convinced that she could not manage work and decided to apply for medical retirement.
Dr. Bauwens described his findings on physical examination, including range of motion, diffuse
lumbar tenderness, left sciatic notch tenderness and positive straight leg raising. He
recommended medical retirement.
By decision dated September 1, 2011, OWCP denied appellant’s recurrence claim. It
found that the evidence did not establish that the claimed recurrence of disability resulted from
the accepted work injury. Appellant’s entitlement to medical treatment remained unaffected.

2

Appellant requested a telephonic hearing before an OWCP hearing representative. On
October 18, 2011 Dr. Bauwens stated that appellant remained disabled from her work based on
the chronicity of her back problems and failure to respond to any other treatment.
During the December 22, 2011 hearing, appellant testified that she became unable to
work in July 2011 due to sitting: “When I was the four or five hours I never felt comfortable.
But when I started working the eight hours the sitting became really bad for me.”
On January 4, 2012 Dr. Bauwens related appellant’s March 5, 2010 history of injury and
medical treatment. He noted that diagnostic testing in 2010 confirmed degenerative disc disease,
facet arthropathy and foraminal encroachment at L4-5 and L5-S1. Dr. Bauwens stated that
appellant continued to have chronic pain, radicular symptoms and numbness and tingling. It was
his opinion that she had preexisting asymptomatic degenerative changes in her lumbar spine that
became symptomatic in March 2010 when lifting computers at work.
By decision dated February 29, 2012, the hearing representative affirmed the
September 1, 2011 decision. She noted that the full-time work appellant performed after
March 28, 2011 was within the medical limitations recommended by her treating physician. The
hearing representative further noted that none of Dr. Bauwens’ reports provided objective
findings to support a worsening of appellant’s accepted condition or an increase in her disability
for work. When appellant told him that she was no longer able to work because her pain and
stress levels were too high, his findings on examination were essentially the same as his prior
findings. The hearing representative reviewed the medical evidence, including Dr. Bauwens’
January 4, 2012 report and a February 14, 2011 report from Dr. Steven J. Donatello, a Boardcertified pain management specialist. The hearing representative found that appellant had not
submitted sufficient medical evidence to support that her disability from work after July 11, 2011
was causally related to and necessitated by the March 5, 2010 work injury.
On March 21, 2012 Dr. Bauwens advised that appellant was not fit for work due to her
back and leg pain.
On March 29, 2012 appellant, through her representative, requested reconsideration. She
submitted a copy of Dr. Bauwens’ January 4, 2012 report, “not previously considered.”
Appellant’s representative argued that, based on this new evidence, OWCP’s decision should be
vacated. OWCP received appellant’s reconsideration request on April 2, 2012.
OWCP also received a copy of Dr. Donatello’s February 14, 2011 report as well as
additional treatment notes from Dr. Bauwens.
Appellant took disability retirement effective April 7, 2012.
On December 17, 2012 appellant’s representative asked about the status of the March 29,
2012 reconsideration request.
By decision dated January 30, 2013, OWCP denied appellant’s reconsideration request.
Finding no evidence in the record of a March 29, 2012 reconsideration request, it treated the
December 17, 2012 inquiry, received on December 19, 2012, as a reconsideration request.
OWCP set forth the standard for obtaining a merit review of the case and found that appellant’s
3

request did not meet at least one of those standards. Dr. Donatello’s February 14, 2010 report,
OWCP explained, was duplicate evidence already taken into consideration. The evidence
submitted to support the request did not address the issue under review. The evidence did not
show that OWCP erroneously applied or interpreted a point of law and did “not advance a point
of law or fact not previously considered by [OWCP].” OWCP added that the statement received
from appellant’s representative did not mention how OWCP erred in its September 1, 2011
decision. “Further there was no statement provided by the claimant dated March 29, 2012 so it is
unclear why the claimant was requesting reconsideration.”2
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.3 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.4
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.6
If a reconsideration decision is delayed beyond 90 days, the claimant’s right to review of
the original decision by the Board is abrogated. 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. 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 with the 90-day period following OWCP’s receipt of the claimant’s
reconsideration request.7

2

Notwithstanding the analysis showing that appellant’s reconsideration request did not meet at least one of the
three standards for obtaining a merit review of her case, OWCP stated that the evidence was sufficient to warrant
further review and the cover letter stated that OWCP had reviewed the merits of the case.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.607(a).

6

Id. at § 10.608.

7

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

4

ANALYSIS
The basis for OWCP’s January 30, 2013 decision is not clear. The cover letter states that
OWCP reviewed the merits of the case, and a statement inside the decision indicates that the
evidence submitted to support the request was sufficient to warrant further review. But it is clear
from the Board’s reading of the decision that OWCP did not conduct a merit review of the case.
OWCP did not evaluate the probative value of the evidence submitted. It did not set forth the
elements necessary to establish a recurrence of disability or make a finding, as it did in its
September 1, 2011 merit decision, that appellant’s claim for recurrence was being denied
because the evidence was not sufficient to discharge her burden of proof.
OWCP conducted a nonmerit review of appellant’s December 17, 2012 inquiry and
denied reconsideration of her recurrence claim on the grounds that her request did not meet at
least one of the three standards for obtaining a merit review.
Appellant did, in fact, file a March 29, 2012 reconsideration request. OWCP received the
request 33 days after the hearing representative’s February 29, 2012 merit decision. It delayed a
decision on this request beyond 90 days, and the delay jeopardized her right for a review of the
merits of the case by this Board. Appellant had until August 27, 2012 to appeal the hearing
representative’s February 29, 2012 merit decision to the Board, but OWCP did not issue a
decision on her reconsideration request until January 30, 2013. In such a situation, OWCP
should have conducted a merit review of her case.
Accordingly, the Board finds that OWCP improperly denied appellant’s March 29, 2012
reconsideration request. The Board will set aside OWCP’s January 30, 2013 decision and
remand the case for a merit review and a de novo decision on her July 2011 recurrence claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s March 29, 2012
reconsideration request. OWCP should have conducted a merit review of her recurrence claim.
Further action is warranted.

5

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2013 decision of Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: July 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6