United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, SOUTH SHORE
ANNEX, Staten Island, NY, Employer
__________________________________________

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

Docket No. 08-2460
Issued: July 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 15, 2008 appellant timely appealed the August 19, 2008 merit decision of
the Office of Workers’ Compensation Programs, which terminated his wage-loss compensation
and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.1
ISSUES
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective February 6, 2008.
FACTUAL HISTORY
Appellant, a 52-year-old mail handler, injured himself in the performance of duty on
May 16, 2006. He stopped work the day of his injury. The Office accepted his claim for right
1

The record on appeal includes evidence received after the Office issued its August 19, 2008 decision. The
Board cannot consider evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2008).

groin strain, lumbar sprain and herniated lumbar disc.2 Appellant received continuation of pay
and the Office paid wage-loss compensation beginning July 1, 2006.3
In June 2007 Dr. Germaine N. Rowe, an attending physician, reported symptoms of
lower back pain radiating into the right groin secondary to disc herniation at the L2-3 level and
disc bulging at L3-4 and L4-5. He noted that conservative measures had not provided appellant
complete relief and recommended a series of lumbar epidural steroid injections.4 The first
injection was administered on July 10, 2007. During this period, appellant continued with
physical therapy and remained off work based on the advice of Thomas Doty, a physician’s
assistant.5
Appellant next saw Dr. Rowe on August 10, 2007 for complaint of lower back pain
radiating into the right groin. Dr. Rowe noted that the July 10, 2007 epidural injection had
provided some minimal-to-mild relief. He anticipated administering another two injections.
However, the Office had yet to authorize any additional epidural steroid treatments. Appellant
was scheduled to return to Dr. Rowe once authorization was obtained. That same day he also
saw Mr. Doty, who again advised that, he refrain from all work.
Dr. Robert M. Israel, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on August 24, 2007. He found that appellant’s lumbar sprain had resolved
and appellant was capable of resuming his full-time, regular duties as a mail handler. Dr. Israel
explained that appellant had no objective findings, noting that his evaluation was entirely within
normal limits. He advised that, appellant had fully recovered and there was no need for further
orthopedic care or treatment.
The Office found a conflict in medical opinion between Drs. Rowe and Israel.
Dr. Stanley Soren, a Board-certified orthopedic surgeon and impartial medical examiner, saw
appellant on November 8, 2007. He reviewed appellant’s history, medical records and examined
his back, abdomen, groin and lower extremities. Dr. Soren reported that there were no positive
clinical findings indicative of any clinical manifestation of a disc herniation, lumbosacral sprain
or lumbar strain. He also noted there was no indication of a right groin strain present. Dr. Soren
saw no need for further diagnostic testing or any other medical treatment. He advised that
appellant was able to return to his regular, full-time duties as a mail handler.
On January 2, 2008 the Office advised appellant that it proposed to terminate all benefits
based on Dr. Soren’s report. Appellant was afforded 30 days to submit additional evidence or
argument in response to the proposed termination.
2

Appellant’s June 27, 2006 lumbar magnetic resonance imaging (MRI) scan revealed, among other things, a
diffuse herniated nucleus pulposus at L2-3 deforming the thecal sac and bilateral L3 nerve roots.
3

The Office placed appellant on the periodic compensation rolls effective August 6, 2006.

4

Dr. Rowe is a Board-certified physiatrist with a subspecialty in pain medicine.

5

Mr. Doty is associated with Dr. Joseph A. Suarez and Dr. Deborah A. Henley. Dr. Suarez initially examined
appellant on May 16, 2006, and both physicians previously authored reports regarding appellant’s medical
condition.

2

The Office continued to receive regular updates from Mr. Doty as well as physical
therapy treatment records.
In a decision dated February 6, 2008, the Office terminated appellant’s wage-loss
compensation and medical benefits effective that day. It acknowledged receipt of the physical
therapy records and Mr. Doty’s various reports, but found that this information was of limited
probative value because it had not been submitted by a qualified physician.
Appellant timely requested a hearing, which was held on June 10, 2008. He submitted
recent treatment notes and a March 13, 2008 report from Dr. Suarez, a Board-certified
orthopedic surgeon. The Office also received additional physical therapy treatment records.
On January 25, 2008 Dr. Suarez reported that appellant was being seen for a longstanding back problem. After examining appellant and reviewing his MRI scan findings,
Dr. Suarez advised that appellant had chronic degenerative changes and bulging discs in the
lumbar spine, which represented a chronic permanent problem. Dr. Suarez noted that appellant
had a moderate disability of the lumbar spine and was only capable of performing sedentary
work.
In a March 13, 2008 report, Dr. Suarez reviewed his initial May 16, 2006 findings and
provided a chronology of the treatment appellant received through January 2008. He explained
that appellant had tried multiple conservative treatments, including physical therapy, pain
medication and an epidural injection, but failed all treatment options. Dr. Suarez found that
appellant had reached maximum medical improvement and was currently unable to perform the
normal duties of his job. He stated that appellant was unable to lift and carry heavy objects,
unable to bend and twist and unable to stand or sit for prolonged periods, all of which were
required for his normal tasks.
In treatment notes dated May 16, 2008, Dr. Suarez indicated that appellant continued to
complain of lumbosacral spine pain. He noted pain on range of motion, including lateral
bending and forward flexion. Dr. Suarez indicated that appellant was totally disabled and could
not work. He essentially reiterated those same findings when he saw appellant on June 13, 2008.
By decision dated August 19, 2008, the hearing representative affirmed the February 6,
2008 decision terminating benefits.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his federal employment, the Office may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.7
The right to medical benefits for an accepted condition is not limited to the period of entitlement
6

Curtis Hall, 45 ECAB 316 (1994).

7

Jason C. Armstrong, 40 ECAB 907 (1989).

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to compensation for disability.8 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.9
ANALYSIS
The Office properly found that there was a conflict of medical opinion between
appellant’s physician, Dr. Rowe, and the Office referral physician, Dr. Israel. Based on this
conflict, the Office referred appellant to an impartial medical examiner to resolve the issue of
whether there were any remaining residuals of the accepted employment injury.10 Dr. Soren, the
impartial medical examiner, noted that there were no positive findings indicative of any clinical
manifestation of the disc herniation, lumbosacral sprain, lumbar strain or right groin strain.
Based on the absence of positive clinical findings, Dr. Soren found no need for further diagnostic
testing or any other medical treatment. He advised that appellant was able to return to his
regular, full-time duties without restriction. Dr. Soren’s opinion is sufficiently well reasoned and
based upon a proper factual background. Accordingly, the Board finds that the Office properly
accorded determinative weight to Dr. Soren’s November 8, 2007 findings, as he was the
impartial medical examiner.11
Dr. Suarez’s subsequent reports do not undermine Dr. Soren’s opinion. In medical
reports dated January through June 2008, Dr. Saurez noted that appellant was being treated for a
long-standing back problem, which included chronic degenerative changes and bulging discs as
evidenced by lumbar MRI scan. In January 2008 Dr. Suarez characterized appellant’s disability
as moderate, with him being capable of performing only sedentary work. But by May 2008,
appellant’s condition apparently worsened to the point where he was totally disabled. Dr. Suarez
provided no explanation for this decline. The latest treatment notes merely indicate that
appellant experienced pain on range of motion, including left and right lateral bending and
forward flexion. Dr. Suarez’s most recent reports also fail to provide a well-reasoned opinion on
causal relationship. The mere fact that appellant has a low back condition of long-standing

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

The Act provides that if there is disagreement between the physician making the examination for the Office and
the employee’s physician, the Office shall appoint a third physician who shall make an examination.
5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).
11

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).

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duration does not establish that his current complaints are causally related to the May 16, 2006
employment injury.12
The Board notes that appellant submitted physical therapy records and various other
reports and treatment records from Mr. Doty. A physical therapist or physician’s assistant is not
a “physician,” as defined under the Federal Employees’ Compensation Act.13 Therefore, the
opinions offered by such healthcare professionals are not considered competent medical
evidence for purposes of determining entitlement to benefits.14
The weight of the medical evidence, as represented by the impartial medical examiner’s
November 8, 2007 report, establishes that appellant no longer has residuals of the May 16, 2006
employment injury. The Office properly terminated appellant’s wage-loss compensation and
medical benefits effective February 6, 2008.
CONCLUSION
The Office met its burden of proof in terminating appellant’s wage-loss compensation
and medical benefits.

12

Causal relationship is a medical question that generally requires rationalized medical opinion evidence to
resolve. 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 factors 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 factors. Id.
13

See 5 U.S.C. § 8101(2) (2006).

14

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the August 19, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________
Appearances:
Benjamin R. Zimmerman, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1790
Issued: May 1, 2018

Case Submitted on the Record

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

On August 18, 2017 appellant, through counsel, filed a timely appeal from a July 27,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Board
docketed the appeal as No. 17-1790.
On March 6, 2013 appellant, then a 61-year-old sales and service associate, filed an
occupational disease claim (Form CA-2) alleging an acceleration of her left knee osteoarthritis
due to her federal job duties of standing for three hours at a time, with frequent walking, as well
as some bending, lifting, pushing, stretching, and reaching. She noted that she had performed
her position for 24 years.
Appellant retired from the employing establishment on
January 31, 2013. She noted that she had two prior traumatic left knee injuries. In OWCP File
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Appellant timely requested oral argument before the Board. By order dated January 29, 2018, the Board
exercised its discretion pursuant to 20 C.F.R. § 505.5(a) and denied the request, finding that the issues could be
adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 17-1790 (issued January 29, 2018).

No. xxxxxx771, appellant alleged that she sustained a work-related left knee contusion. She
underwent left knee arthroscopy on March 10, 2004. In OWCP File No. xxxxxx395, appellant
alleged that she sustained a left knee sprain on December 17, 2007.
The Board has duly considered the matter and finds that this case is not in posture for
decision. OWCP procedures provide that cases should be combined when correct adjudication
of the issues depends on frequent cross-referencing between files. For example, if a new injury
case is reported for an employee who previously filed an injury claim for a similar condition or
the same part of the body, doubling is required.3 In the instant case, appellant had two prior
claims for left knee conditions, assigned File No. xxxxxx771 and File No. xxxxxx395. She then
filed an occupational disease claim for the same body part, assigned File No. xxxxxx468, which
is currently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with File Nos. xxxxxx771 and xxxxx395, and determine
whether appellant has provided sufficient rationalized medical opinion evidence to establish that
she sustained a permanent aggravation or acceleration of her left knee arthritis due to factors of
her federal employment.4 Following this and such further development as OWCP deems
necessary, it shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: May 1, 2018
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melrose Park, IL, Employer
__________________________________________

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

Docket No. 14-1066
Issued: December 19, 2014

Case Submitted on the Record

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

JURISDICTION
On April 8, 2014 appellant filed a timely appeal of a January 31, 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 this case.
ISSUE
The issue is whether appellant established permanent impairment due to her accepted
employment-related condition.
FACTUAL HISTORY
On June 5, 2010 appellant, then a 31-year-old mail carrier, filed a traumatic injury claim
alleging that on May 26, 2010 she injured her lower back while unloading a tub of flats. OWCP

1

5 U.S.C. § 8101 et seq.

accepted the claim for right side lumbar strain, which was expanded to include temporary
aggravation of degenerative disc disease and bilateral lumbar radiculopathy.2
On June 8, 2011 appellant filed a claim for a schedule award and submitted a June 7,
2011 report from Dr. Jacob Salomon, an examining Board-certified surgeon, who noted the
injury and medical history, reviewed objective tests and provided findings on physical
examination. A review of an electromyograph (EMG) test revealed L4-S1 left lower lumbar
radiculopathy with prolonged latency and no response on stimulation to the sural or peroneal
nerves. Dr. Salomon also reported right L4 to S1 distribution prolonged latency with slowing of
nerve conduction velocity. A review of a magnetic resonance imaging (MRI) scan showed
neuroforaminal stenosis, lumbar spondylosis, and multiple levels of bulging discs. Dr. Salomon
indicated that appellant reached maximum medical improvement on May 25, 2011 as there was
no change in her symptoms on her return to work. Using the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), he
found a 16 percent left lower extremity impairment and a 4 percent right lower extremity
impairment based on appellant’s lumbar radiculopathy and spinal disease.
Using Table 16-12, page 535 placed appellant in class 2 based on her more severe
symptoms on the left. Dr. Salomon assigned a grade modifier 2 for functional history due to
appellant’s inability to walk or stand for prolonged periods of time. Next, he found grade
modifier 2 for both clinical studies and physical examination. Using the net adjustment formula,
Dr. Salomon determined a final grade of C or 16 percent permanent left lower extremity
impairment.
For the right lower extremity, Dr. Salomon assigned class 1 with grade modifier 1 for
each functional history, clinical studies, and physical examination as the symptoms on this side
were not as severe. Using the net adjustment formula, it resulted in a final grade C with a four
percent impairment.
On June 30, 2011 Dr. Nabil F. Angley, an OWCP medical adviser and Board-certified
orthopedic physician, reviewed Dr. Salomon’s report and concurred with his impairment
determination. He identified the sciatic nerve and assigned a class 2 with a default grade C using
Table 16-12, page 535. Using the net adjustment formula Dr. Angley assigned a grade modifier
2 for functional history, physical examination, and clinical studies which resulted in a final net
adustment of zero. As the next adjustment was zero, the grade remained unchanged with a 16
percent left lower extremity impairment.
Using the same formula for the right side, Dr. Angley found a class 1 with a default grade
C and four percent impairment due to the less severe symptoms. Using the net adjustment
formula, he assigned a grade modifier 1 for functional history, physical examination, and clinical

2

OWCP assigned File No. xxxxxx144. On May 1, 2012 OWCP combined File Nos. xxxxxx144, xxxxxx561 and
xxxxxx024, with File No xxxxxx561 assigned as the master File No. Under File No. xxxxxx561, OWCP accepted
the conditions of aggravated cervical disc disease, bilateral carpal tunnel syndrome, left cubital syndrome, and
bilateral shoulder tendinitis with an injury date of March 16, 2011. For File No. xxxxxx024, OWCP noted an injury
date of August 27, 2009.

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studies which resulted in a final net adustment of zero. As the next adjustment was zero, the
grade remained unchanged with a four percent right lower extremity impairment.
By letter dated August 8, 2011, OWCP requested that Dr. Angley determine whether
appellant was still at maximum medical improvement in light of additional medical treatment
appellant had received since the earlier maximum medical improvement determination.
In an August 18, 2011 report, Dr. Angley recommended asking Dr. Salomon about the
date of maximum medical improvement in view of July 1, 2011 therapy notes and a June 20,
2011 medical report indicating that appellant was disabled for work.
In a November 30, 2011 letter, OWCP asked Dr. Anatoly Rozman, appellant’s treating
Board-certified physiatrist, whether appellant had reached maximum medical improvement.3 On
December 5, 2011 it received a December 2, 2011 prescription which read: “Patient reached
maximum medical improvement for her lower extremities lumbar spine injury.”
In a letter dated April 18, 2012, OWCP informed appellant that additional issues needed
to be resolved before a final impairment rating could be determined. It stated that it was waiting
for OWCP File No. xxxxx651 as it covered the same part of the body. OWCP requested
appellant to provide a statement as to whether she was performing her full duties and how much
walking per day she was doing.
On May 1, 2012 OWCP stated that OWCP File Nos. xxxxxx561, xxxxxx444, and
xxxxxx024 should be combined. Under OWCP File No. xxxxxx561, it noted an injry date of
March 16, 2011 and that the claim had been accepted for aggravated cervical disc disease,
bilateral carpal tunnel syndrome, left cubital syndrome, and bilateral shoulder tendinitis. OWCP
accepted the back condition under OWCP File No. xxxxxx024 with an injury date of
August 27, 2009. Under OWCP File No. xxxxxx444, it reported the accepted conditions of
lumbar back sprain, bilateral lumbar radiculopathy, and temporary aggravation of right
degenerative disc disease. OWCP noted that appellant was currently receiving wage-loss
compensation for the National Reassessment Program and medical appointments under OWCP
File No. xxxxxx651 and requested that this file be made the master file number.
In a July 23, 2012 memorandum to file, OWCP noted that appellant was schedule to have
surgery on August 16, 2012. It advised appellant that her schedule award claim was on hold
until she returned to full duty following the August 16, 2012 surgery.
On May 22, 2013 appellant filed a new claim for a schedule award.
In a June 6, 2013 letter, OWCP informed appellant that the evidence was insufficient to
establish her schedule award and advised her to provide an updated impairment evaluation due to
her intervening surgery on August 16, 2012.

3

By letter of November 23, 2011, OWCP authorized appellant’s request to change her treating physician to
Dr. Rozman effective that date.

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In a July 12, 2013 report, Dr. Rozman reviewed Dr. Salomon’s June 7, 2011 impairment
rating and performed an examination on July 8, 2013. He concurred with Dr. Salomon’s
impairment rating of 16 percent left lower extremity impairment and 4 percent right lower
extremity impairment. Dr. Rozman stated that there was no change in either the impairment
rating or physical examination.
On July 25, 2013 Dr. Morley Slutsky, a physician Board-certified in occupational and
preventive medicine and an OWCP medical adviser, reviewed Dr. Salomon’s June 7, 2011
impairment rating and concluded appellant had an 11 percent left lower extremity impairment.
He advised that there was no right lower extremity impairment as Dr. Salomon had not
documented any clinical deficits. Dr. Slutsky determined May 25, 2011 as the date of maximum
medical improvement based on Dr. Salomon’s report. He recommended referral to a second
opinion physician for a more accurate impairment rating.
Using Table 16-11, page 533 Dr. Slutsky considered appellant’s sensory deficits for L4
nerve root and determined a severity of 2 or moderate and placed into class 1 with a default
grade of three percent. Using the net adjustment formula he assigned grade modifier 1 for
functional history, he found the physical examination grade modifier was not relevant, and
assigned grade modifier 2 for clinical studies, which resulted in a final net adustment of one. As
the next adjustment was one, the grade moved to the right of C resulting in a final default grade
of D or four left lower extremity impairment.
Next, Dr. Slutsky considered sensory deficits for the L-5 nerve root using Table 16-11,
page 533 and determined a severity of 2 or moderate and placed into class 1 with a default grade
of three percent. Using the net adjustment formula, he assigned a grade modifier 1 for functional
history, he found the physical examination grade modifier was not relevant, and assigned grade
modifier 2 for clinical studies, which resulted in a final net adustment of one. As the next
adjustment was one, the grade moved to the right of C resulting in a final default grade of D or
four left lower extremity impairment.
Finally, Dr. Slutsky considered appellant’s sensory impairment for the S-1 nerve root and
determined a severity of 2 or moderate and placed into class 1 with a default grade of three
percent. Using the net adjustment formula he assigned a grade modifier 1 for functional history,
he found the physical examination grade modifier was not relevant, and assigned grade modifier
2 for clinical studies, which resulted in a final net adustment of one. As the next adjustment was
one, the grade moved to the right of C resulting in a final default grade of D or three left lower
extremity impairment. Dr. Slutsky then combined the impairment ratings for the L4, L5, and S1
nerve roots to find a total 11 percent left lower extremity impairment.
In a September 23, 2013 report, Dr. Axel Vargas, an examining Board-certified
anesthesiologist, conducted an initial evaluation of appellant and performed a physical
examination. Diagnoses included lumbar facet pain syndrome, lumbosacral discogenic
radiculopathy, lumbosacral discogenic pain syndrome, L5-S1 and L4-5 herniated discs, cervical
discogenic radiculopathy, cervical discogenic pain syndrome, cervica facet syndrome, and C3-4
disc herniation. Dr. Vargas indicated that appellant required further treatment for her conditions
and that said conditions “were directly related to the injury she sustained.”

4

In November 7, 2013 report, Dr. Allan Brecher, a second opinion Board-certified
orthopedic surgeon, based upon a review of the medical records, statement of accepted facts, and
physical examination, concluded that appellant had no permanent impairment of the lower
extremities. A physical examination revealed intact lower extremities sensibility, no clear
Tinel’s sign, negative fabere and straight leg raising, no lower extremity pain, and complete joint
motion. Under assessment and plan, Dr. Brecher stated that appellant had some spinal stenosis
with an EMG “not diagnostic for clear radiculopathy.” He indicated that she reached maximum
medical improvement on June 27, 2011 the date of Dr. Salomon’s impairment rating.
Dr. Brecher stated that based on appellant’s intact strength and no tension sign there was no
objective evidence supporting a lower extremity condition. He determined that maximum
medical improvement had been reached as of June 27, 2011, the date of Dr. Salomon’s report.
Lastly, as there were no lower extremity findings, he found that appellant had no impairment
under the sixth edition of the A.M.A., Guides.
On December 5, 2013 Dr. Slutsky reviewed the medical evidence and found that
maximum medical improvement was November 6, 2012, the date of Dr. Brecher’s report. He
concurred with Dr. Brecher’s opinion that as there were no lower extremity motor or sensory
deficits to establish a lower extremity impairment rating using the sixth edition of the A.M.A.,
Guides.
By decision dated January 31, 2014, OWCP denied appellant’s claim for a schedule
award as she had no permanent impairment due to her accepted employment injuries.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.7
The sixth edition requires identifying the impairment class for the Class of Diagnosis
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

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Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter, rating spinal nerve extremity impairment using the sixth edition (July/August 2009)
is to be applied.9
ANALYSIS
OWCP accepted appellant’s claim for right side lumbar strain, temporary aggravation of
degenerative disc disease and bilateral lumbar radiculopathy. Appellant filed claims for a
schedule award on June 8, 2011 and May 22, 2013. By decision dated January 31, 2014, OWCP
denied the claim based on the opinion of the second opinion examiner, Dr. Brecher and the
review of this report by an OWCP medical adviser.
The Board finds that this case is not in posture for a decision as further development of
the evidence is required.
In the June 7, 2011 report, Dr. Salomon found a 16 percent left lower extremity
impairment and a 4 percent right lower extremity impairment based on appellant’s lumbar
radiculopathy and spinal disease. On July 12, 2013 Dr. Rozman, appellant’s treating Boardcertified physiatrist, reviewed Dr. Salomon’s impairment rating and performed a physical
examination on July 8, 2013. He stated that he concurred with Dr. Salomon’s impairment rating
as he found no change in either her physical examination or her impairment rating.
Dr. Brecher, a second opinion physician, in a November 7, 2013 report, opined that
appellant had no impairment to either lower extremity based on the A.M.A., Guides because of
the fact that there was no objective evidence supporting a lower extremity condition due to her
intact strength and no tension sign. He indicated that maximum medical improvement had been
reached on June 27, 2011. Dr. Slutsky reviewed the medical record and agreed with
Dr. Brecher’s impairment rating. The Board finds that at the time appellant was referred to
Dr. Brecher the record was unclear as to whether appellant had reached maximum medical
improvement considering her August 16, 2012 surgery and Dr. Vargas’ September 23, 2013
report, which indicated that appellant required further treatment. For these reasons, the Board
finds that the opinions of Drs. Brecher and Slutsky are insufficient to find that appellant was not
entitled to a schedule award.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter.10 While appellant has the burden to establish entitlement to
8

A.M.A., Guides 494-531.

9

See L.S., Docket No. 13-1703 (issued March 5, 2014); G.N., Docket No. 10-850 (issued November 12, 2010);
see also Federal (FECA) Procedure Manual, supra note 7 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The
Guides Newsletter is included as Exhibit 4.3.
10

R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57

6

compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.11 When OWCP undertakes to develop the medical aspects of a case, it must exercise
extreme care in seeing that its administrative processes are impartially and fairly conducted.12
Following such further development as deemed necessary, OWCP shall issue a de novo decision
regarding whether appellant is entitled to a schedule award for her lower extremity conditions.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 31, 2014 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: December 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004).
11

D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004).

12

See P.K., Docket No. 08-2551 (issued June 2, 2009); Peter C. Belkind, 56 ECAB 580 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1902
Issued: March 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On September 18, 2012 appellant filed a timely appeal from an August 2, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. The Board docketed the appeal as No. 12-1902.
The Board has duly considered the matter and notes that on January 20, 2012 appellant,
then a 61-year-old mail handler, filed a traumatic injury claim alleging that he injured his lower
back on that date in the performance of duty while bending over to attach a tow hook to a
hamper. Appellant submitted medical evidence in support of his claim. By decision dated
March 7, 2012, OWCP denied his traumatic injury claim because he failed to establish that the
claimed event occurred as alleged. Because the decision was based on factual deficiencies, the
claims examiner did not review the medical evidence of record.
On April 30, 2012 appellant submitted a request for reconsideration, together with
medical evidence. By decision dated August 2, 2012, OWCP modified its March 7, 2012
decision to reflect that he had established that the January 20, 2012 incident occurred as alleged,
but denied the claim on the grounds that the evidence failed to establish a causal relationship
between the established event and a diagnosed condition. Without reviewing the medical
evidence of record, OWCP stated that appellant had submitted only duplicates of medical reports
already of record and they were, therefore, of no probative value.

Board precedent holds that OWCP must review all the evidence submitted by a claimant
and received by OWCP prior to the issuance of a final decision.1 As the Board’s jurisdiction is
final as to the subject matter, it is crucial that OWCP accomplish this.2 In its March 2, 2012
decision, OWCP did not consider the medical evidence submitted by appellant because it was
not relevant to its factual determination. In its August 2, 2012 decision, the claims examiner
erroneously disregarded the medical evidence as duplicative, without discussing its probative
value. As OWCP failed to address all the relevant evidence of record at the time it issued is
August 2, 2012 decision, the case is remanded for a proper review of the evidence and issuance
of an appropriate final decision.
IT IS HEREBY ORDERED THAT the August 2, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: March 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1

See J.I., Docket No. 12-1062 (issued December 21, 2012); M.B., Docket No. 09-17(issued September 23, 2009);
Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, 45 ECAB 439 (1994) (evidence received the same day as the
issuance of OWCP’s decision); William A. Couch, 41 ECAB 548 (1990).
2

Id.

2


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

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

Docket No. 14-1527
Issued: November 5, 2014

Case Submitted on the Record

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

JURISDICTION
On June 25, 2014 appellant filed a timely appeal from the June 11, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over this nonmerit decision. The last merit decision of record was the April 15, 2013
decision of OWCP. Because more than 180 days elapsed from issuance of the last merit decision
to the filing of this appeal on June 25, 2014, the Board lacks jurisdiction to review the merits of
this claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record as untimely.

1

5 U.S.C. §§ 8101-8193.

2

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
OWCP accepted that on October 24, 2004 appellant, then a 47-year-old mail handler,
sustained a lumbar sprain/strain due to moving an all-purpose container filled with mail.
Appellant stopped work on October 24, 2004 and returned to his regular work the next day.
Appellant claimed that he sustained disability from October 27, 2004 to April 15, 2005
due to his October 24, 2004 work injury. OWCP denied his claim in decisions dated
February 3, 2006, May 15, 2008 and August 4, 2009. The Board affirmed its denial of
appellant’s disability claim in decisions dated January 15, 20093 and May 18, 2010.4
In late March 2012, appellant requested authorization from OWCP for several medical
procedures, including epidural steroid injection of his cervical, thoracic and lumbosacral spines
and destruction by neurolytic agent injection of the facet joints of his lumbosacral spine.
In an April 15, 2013 decision, OWCP denied appellant’s March 2012 request for
authorization of the medical procedures. It found that the medical evidence did not establish that
the procedures were necessary to treat his October 24, 2004 work injury.
In a letter dated June 1, 2014 and postmarked June 2, 2014, appellant requested a review
of the written record by an OWCP hearing representative.5
In a June 11, 2014 decision, OWCP denied appellant’s request for a review of the written
record. It found that his request was untimely because OWCP’s last merit decision was issued
on April 15, 2013 and his request for a review of the written record was postmarked on
June 2, 2014. Since appellant’s request was after 30 days, he was not, as a matter of right,
entitled to a review of the written record. OWCP considered his request for a review of the
written record, and exercising its discretion, determined that the issue in this case could equally
well be addressed by requesting reconsideration from the district office and submitting evidence
not previously considered addressing the causal relation between the requested medical
procedures and a work-related condition.
LEGAL PRECEDENT
Section 8124 of FECA provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made within 30 days after issuance of an OWCP final decision.6
OWCP’s regulations have expanded section 8124 to provide the opportunity for a “review of the
written record” before an OWCP hearing representative in lieu of an “oral hearing.”7 It has
3

Docket No. 08-1829 (issued January 15, 2009).

4

Docket No. 09-2206 (issued May 18, 2010).

5

Appellant did not identify a particular OWCP decision, but the April 15, 2013 decision was the last decision
issued by OWCP at the time of his request.
6

5 U.S.C. § 8124.

7

20 C.F.R. §§ 10.616, 10.618. The date of the request is determined by the postmark or other carrier’s date
marking. Id. at § 10.616(a).

2

provided that such review of the written record is also subject to the same requirement that the
request be made within 30 days of OWCP’s final decision.8
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.9 The principles underlying OWCP’s authority to grant or deny a
written review of the record are analogous to the principles underlying its authority to grant or
deny a hearing. OWCP’s procedures, which require OWCP to exercise its discretion to grant or
deny a request for a review of the written record when such a request is untimely or made after
reconsideration or an oral hearing, are a proper interpretation of FECA and Board precedent.10
ANALYSIS
Appellant’s June 2, 2014 request for a review of the written record was made more than
30 days after the date of issuance of OWCP’s prior decision dated April 15, 2013. Thus, he was
not entitled to a review of the written record as a matter of right.11 OWCP properly found its
June 11, 2014 decision that appellant was not entitled to a review of the written record as a
matter of right because his request was not made within 30 days of the April 15, 2013 decision.
OWCP also has the discretionary power to grant a review of the written record when a
claimant is not entitled to a review of the written record as a matter of right. In its June 11, 2014
decision, it considered appellant’s request for a review of the written record. OWCP determined
that the issue in this case could equally well be addressed by requesting reconsideration from the
district office and submitting evidence not previously considered which addressed the causal
relation between the requested medical procedures and a work-related condition. The Board has
held that as the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deduction from established facts.12
In the present case, the evidence of record does not establish that OWCP abused its discretion by
denying appellant’s request for a review of the written record.13

8

See Michael J. Welsh, 40 ECAB 994 (1989).

9

Henry Moreno, 39 ECAB 475 (1988).

10

See supra note 8.

11

Appellant requested a review of the written record in a document postmarked June 2, 2014 and, therefore, his
request was made on June 2, 2014. See supra note 7.
12

Daniel J. Perea, 42 ECAB 214, 221 (1990).

13

On appeal, appellant argued that OWCP did not adequately pay for medical treatment of his back condition.
However, the merits of his claim are not currently before the Board and he did not show that his request for review
of the written record was timely filed.

3

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record as untimely.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF THE INTERIOR,
WESTERN REGIONAL OFFICE, Phoenix, AZ,
Employer
__________________________________________

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

Docket No. 16-0764
Issued: August 25, 2016

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal of an October 8, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to a May 20, 2014 employment incident.
FACTUAL HISTORY
On May 20, 2014 appellant, then a 52-year-old school bus driver, filed a Form CA-1,
notice of traumatic injury, alleging that on that same date she tripped on a sidewalk west of the
1

5 U.S.C. § 8101 et seq.

gymnasium of San Simon School and fell scraping her knee and jostling her neck, back, hip, and
right hand. The employing establishment indicated that she was in the performance of duty.
Appellant did not stop work.
Appellant was treated by Dr. Allen B. Lee, an osteopath, on July 16, 2014. Dr. Lee noted
findings on examination of dizziness, headache, nausea, and back and joint pain. He diagnosed
chronic low back pain. Appellant was treated by a physician assistant on July 31, 2014 for left
hip pain and lower back pain. She reported that, on May 20, 2014, she fell on an uneven side
walk in front of a gymnasium and she continued to have left hip pain and low back pain. The
physician assistant noted that appellant’s history was significant for a bone graph from the left
hip to repair the right scaphoid, left knee partial patellectomy, neck stenosis, and three screws in
her left hip.
On September 18, 2014 OWCP advised appellant that her claim was originally received
as a simple, uncontroverted case with minimal or no time loss from work. The claim was
administratively handled to allow medical payments up to $1,500.00. OWCP advised that,
because the medical bills exceeded $1,500.00, appellant’s claim would be formally adjudicated.
It requested that she submit additional evidence including a comprehensive medical report
explaining how the specific work incidents contributed to her claimed condition.
Appellant submitted an undated statement describing the May 20, 2014 incident. She
noted seeking treatment from a chiropractor. Appellant reported sustaining injuries to her
lumbar and hip in a prior motor vehicle accident, which was aggravated by this fall. She
reported being on the employing establishment’s premises when she fell. Appellant submitted
witness statements from persons who either saw her fall or saw her immediately after the fall.
Appellant submitted several medical reports regarding her past and current treatment. On
April 4, 2013 she was treated by Dr. Richard Reams, a Board-certified family practitioner, for
musculoskeletal pain. Appellant reported falling at work and injuring her left hip and right upper
arm when she went to sit on a chair in the gym and a student moved the chair from beneath her.
Dr. Reams noted an antalgic gait, tenderness of the left lower back and buttock area, left lateral
hip pain, and neck pain. He diagnosed back sprain, neck sprain, and fall.2
In a July 31, 2014 report, Dr. Lee treated appellant for left hip and lower back pain.
Appellant reported that on May 20, 2014 she fell on an uneven sidewalk in front of a
gymnasium. Dr. Lee noted thoracic spine spasm, mild pain with motion, tenderness of the
lumbar spine, and crepitus of the left hip. He diagnosed thoracic back pain, moderate multilevel
degenerative changes within the thoracic spine, left hip pain, three compression screws within
the proximal left femur, slight irregularity of the left femoral head, which could be due to
2

Appellant provided a February 20, 1998 report from Dr. Stephen R. Stein, a Board-certified orthopedic surgeon,
who saw her for left hip and left knee injuries incurred in an August 8, 1995 motorcycle accident. She had an open
reduction internal fixation of the left hip, pinning of a femoral neck fracture, and resection of the majority of her
patella for a comminuted fracture. Appellant had a prior history of a right wrist scaphoid fracture and a left ankle
fracture. An April 4, 2013 pelvic x-ray showed stable postoperative changes and old trauma. An October 4, 2013
left hip x-ray revealed left femur compression screws, stable postoperative changes, mild left hip degenerative
changes, and flattening of the left femoral head possibly due to avascular necrosis.

2

underlying vascular necrosis, pain in low back, mild loss of height of L1 vertebral body, and
mild bilateral facet hypertrophy at L3-4, L4-5, and L5-S1.
Appellant was seen by Dr. Nicholas A. Ransom, a Board-certified orthopedist, on
September 22, 2014, for cervical and lumbar spine pain from a long-standing condition that was
exacerbated on May 20, 2014. Dr. Ransom noted that the mechanism of injury was a fall and
reinjury of previous condition to the low back from an original motor vehicle injury. He noted
that appellant had a prior history of cervical and lumbar pain made worse by the May 20, 2014
work injury. Appellant’s history was significant for left hip surgery, left patellectomy and right
scaphoid surgery. Dr. Ransom noted tenderness at the lumbosacral and cervical junction, limited
range of motion of the lumbar spine with intact motor, sensory, and reflexes. He diagnosed
cervicalgia and lumbar backache. Dr. Ransom noted the etiology of appellant’s pain was
multiple level spondylosis. Appellant also provided records from a physician assistant.
By decision dated November 3, 2014, OWCP denied appellant’s compensation claim,
finding that the medical evidence of record was not sufficient to establish that a medical
condition was diagnosed in connection with the claimed event or work factors.
On November 24, 2014 appellant requested an oral hearing which was held before an
OWCP hearing representative on July 7, 2015. She submitted a November 26, 2014 report from
Dr. Ransom who treated her for constant cervical spine pain, occipital headaches, and left C5
radiculopathy. Dr. Ransom diagnosed cervical central canal stenosis by magnetic resonance
imaging (MRI) scan and recommended a discectomy. On December 16, 2014 he treated
appellant for worsening cervical pain since the May 2014 work event when she reported tripping
and falling on a sidewalk and twisting her neck. Appellant developed neck pain, occipital
headaches, and left arm pain in the left C5 radicular distribution. Dr. Ransom advised that she
had a history of cervical problems and was involved in a rollover motor vehicle accident in 2006.
From 2007 to 2014, appellant had very few symptoms, but since the 2014 traumatic event she
was unable to participate in activities of daily living. Dr. Ransom noted a November 14, 2014
MRI scan revealed spinal stenosis at C6-7 with myelomalacia of the cord. He opined that given
appellant’s symptoms and cervical stenosis decompression surgical stabilization of the C6-7
level was recommended.
Dr. Sergio Rivero, a Board-certified neurosurgeon, saw appellant on January 26, 2015,
for cervical stenosis. Appellant reported falling in May 2014 and having numbness and tingling
in her hands as well as weakness in her arms, and legs. Her history was significant for a
motorcycle accident. Dr. Rivero diagnosed cervical stenosis of spinal canal, myelomalacia of the
cervical cord and myelopathy, and recommended a cervical discectomy. In a March 12, 2015
operative report, he performed a C5-6 and C6-7 anterior cervical discectomy, decompression of
the spinal cord and osteophytectomy at C5-7, anterior interbody arthrodesis at C5-6, C6-7, and
C5-7 anterior plate and screws. Dr. Rivero diagnosed cervical stenosis with myelomalacia. On
March 27, 2015 he diagnosed status post cervical spinal fusion. Dr. Rivero noted that appellant
was doing well postoperatively. In a May 1, 2015 report he treated appellant for pain in the
occipital area. Dr. Rivero noted the March 12, 2015 surgery and diagnosed status post cervical
spinal fusion. He noted cervical spine x-rays revealed status post anterior cervical discectomy
with fusion from C5-7 with the hardware intact. Dr. Rivero referred appellant for physical
therapy

3

In a July 29, 2015 report, Dr. David Parke, a chiropractor, treated appellant for chronic
musculoskeletal pain, which he traced back to a motorcycle accident on August 22, 1995. He
noted that she tripped on an uneven section of sidewalk on May 20, 2014. Dr. Parke treated
appellant for pain in the neck, upper trapezius, shoulders, low back, and left knee. He noted a
worsening of her condition which began immediately after the fall on May 20, 2014. Dr. Parke
opined that the fall definitely contributed to the degeneration and destabilization of her neck
which led to surgery on March 12, 2015. He further noted that it was likely, although not
certain, that the fall on May 20, 2014 destabilized an already compromised cervical spine and
caused the need for surgery.
Appellant submitted an August 26, 2015 report from Dr. Moeen Din, a Board-certified
neurologist, who treated her for cervical spinal stenosis and severe cord compression at C6-7
with myelomalacia causing weakness in the upper and lower extremities. Dr. Din noted that
there was a “possibility” that a fall could have aggravated her spinal stenosis.3
By decision dated October 8, 2015, an OWCP hearing representative affirmed the
November 3, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
3

Appellant also submitted diagnostic test reports. An August 21, 2014 cervical spine x-ray revealed osteophyte
spurring at C5-6 and C6-7, loss of normal cervical curve, and uncovertebral joint arthrosis at C3-4, C4-5, C5-6, C67, and C7-T1. A November 14, 2014 cervical spine MRI scan showed posterior ridging with cord compression
consistent with spinal stenosis and myelomalacia at C6-7, right foraminal stenosis at C3-4 and C4-5, bilateral
foraminal stenosis at C6-7 and C7-T1, and a disc bulge at C5-6. A July 6, 2015 electromyogram showed right
peroneal neuropathy. An August 13, 2015 cervical spine MRI scan revealed posterior ridging and cord compression
at C6-7 consistent with spinal canal stenosis, myelomalacia of the cord, and bilateral foraminal stenosis at C6-7. An
August 13, 2015 MRI scan of the thoracic spine showed no evidence of disc herniation and an eight-millimeter
hemangioma body at T7.
4

Gary J. Watling, 52 ECAB 357 (2001).

5

T.H., 59 ECAB 388 (2008).

4

Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
It is not disputed that on May 20, 2014 appellant, a school bus driver, tripped on a
sidewalk at a school and fell to the ground. However, the Board finds that she has not submitted
sufficient medical evidence to establish that any of her diagnosed conditions are causally related
to this accepted employment incident.
Dr. Ransom, in a September 22, 2014 report, noted treating appellant for a long-standing
cervical and lumbar spine condition. He noted that the mechanism of injury was a fall and
reinjury of a previous low back condition from an original motor vehicle injury. Dr. Ransom
diagnosed cervicalgia and lumbar backache and advised that appellant’s cervical and lumbar pain
was exacerbated by the May 20, 2014 work injury. In reports dated November 26 and
December 16, 2014, he noted her worsening cervical pain since the May 2014 fall at work after
which she developed neck pain, occipital headaches, and left arm pain in the left C5 radicular
distribution. Dr. Ransom advised that appellant had a history of cervical problems, but that,
from 2007 to 2014, she had very few symptoms. However, since the 2014 traumatic event,
appellant was unable to participate in activities of daily living. Although Dr. Ransom supported
causal relationship, he did not provide medical rationale explaining the basis of his conclusory
opinion regarding the causal relationship between her diagnosed cervicalgia, multiple level
spondylosis, spinal stenosis at the C6-7 with myelomalacia of the cord, and the May 20, 2014
fall at work.7 He did not explain the process by which tripping on a sidewalk and falling would
cause or aggravate appellant’s diagnosed conditions and why such conditions would not be only
due to any of her previous nonwork injuries or to multilevel age-related degenerative disc
disease. The need for medical reasoning is particularly important as the record indicates that
appellant has preexisting conditions affecting the same areas of her body. Thus, Dr. Ransom’s
reports are insufficient to meet her burden of proof.
Appellant submitted treatment notes from Dr. Reams. Dr. Reams noted that appellant
reported falling at work and injuring her left hip and right arm when she went to sit in a chair in
the gym and a student moved the chair from beneath her. However, he provided no rationale
relating the fall to his diagnosis of back sprain, neck sprain and fall. Therefore, his reports are
insufficient to meet appellant’s burden of proof.
Appellant was treated by Dr. Lee on July 16 and 31, 2014 for left hip and lower back
pain. She reported that on May 20, 2014 she fell on uneven side walk at work. Dr. Lee
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

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diagnosed thoracic back pain, moderate multilevel degenerative changes within the thoracic
spine, left hip pain, three compression screws within the proximal left femur, slight irregularity
of the left femoral head which could be due to underlying vascular necrosis, pain in low back,
mild loss of height of L1 vertebral body, and mild bilateral facet hypertrophy at L3-4, L4-5, and
L5-S1. However, he appears merely to be repeating the history of injury as reported by appellant
without providing his own opinion regarding whether her condition was work related.8 To the
extent that Dr. Lee is providing his own opinion, he failed to provide a rationalized opinion
regarding the causal relationship between her condition and the factors of employment believed
to have caused or contributed to such condition.9
In an August 26, 2015 report, Dr. Din noted initially evaluating appellant on January 15,
2015 after she had a fall at work and she reported worsening symptoms involving cervical spinal
stenosis in the cervical region as well as severe cord compression at C6-7 with myelomalacia.
He noted that there was a “possibility” that a fall could have aggravated her spinal stenosis.
Dr. Din’s report provides some support for causal relationship, but is insufficient to establish the
claimed conditions are causally related to the fall at work. At best, this report provides only
speculative support for causal relationship as he qualifies his support by noting that there was a
“possibility” that appellant’s fall on May 20, 2014 caused her condition. Dr. Din provided no
medical reasoning to support his opinion on causal relationship. Therefore, this report is
insufficient to meet appellant’s burden of proof.10
Appellant was treated by Dr. Rivero on January 26, 2015 for cervical stenosis. She
reported falling in May 2014 and experienced numbness and tingling in her hands and weakness
in her arms and legs. Dr. Rivero diagnosed cervical stenosis of spinal canal, myelomalacia of the
cervical cord, and myelopathy. In subsequent reports, he noted performing surgery and
appellant’s postsurgical progress. These reports are insufficient to establish the claim as
Dr. Rivero did not specifically relate her conditions, by cause or aggravation, to the May 2014
incident at work nor did he otherwise explain the process by which the employment incident
would have caused or aggravated particular diagnosed conditions.11
Appellant submitted a July 29, 2015 report from Dr. Parke, a chiropractor, who treated
her for chronic musculoskeletal pain since a motorcycle accident on August 22, 1995. He noted
that she had another fall at work on May 20, 2014 when she tripped on an uneven section of
sidewalk. Dr. Parke opined that the fall definitely contributed to the degeneration and
destabilization of appellant’s neck, which led to surgery on March 12, 2015. However, section
8101(2) of FECA provides that chiropractors are considered physicians “only to the extent that
8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
9

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
10

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D.,
57 ECAB 734 (2006).
11

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

6

their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation[s] by
the Secretary.”12 Thus, where x-rays do not demonstrate a subluxation (a diagnosis of a
subluxation based on x-rays has not been made), a chiropractor is not considered a “physician,”
and his or her reports cannot be considered as competent medical evidence under FECA.13 The
Board finds that Dr. Parke is not considered a physician under FECA as he did not diagnose a
spinal subluxation demonstrated by x-ray. Thus, his opinion is of no probative medical value.
Likewise, appellant was also treated by a physician assistant. However, the Board has held that
documents or notes signed by a physician assistant are not considered medical evidence as a
physician assistant is not a physician under FECA.14 Thus, the treatment records from the
physician assistant have no probative medical value in establishing appellant’s claim for cervical
pain.
The remainder of the medical evidence is of limited probative value as it either predates
the claimed injury or fails to provide an opinion on the causal relationship between appellant’s
job and her diagnosed cervical condition.15 For this reason, this evidence is not sufficient to
meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury
causally related to a May 20, 2014 employment incident.

12

5 U.S.C. § 8101(2); see also section 10.311 of the implementing federal regulations provides: “(c) A
chiropractor may interpret his or her x-rays to the same extent as any other physician. To be given any weight, the
medical report must state that x-rays support the finding of spinal subluxation. OWCP will not necessarily require
submittal of the x-ray, or a report of the x- ray, but the report must be available for submittal on request.”
13

See Susan M. Herman, 35 ECAB 669 (1984).

14

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
15

See supra note 11.

7

ORDER
IT IS HEREBY ORDERED THAT the October 8, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
U.S. POSTAL SERVICE, FIVE POINTS
STATION, Akron, OH, Employer
__________________________________________

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

Docket No. 16-0099
Issued: March 2, 2016

Case Submitted on the Record

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

JURISDICTION
On October 20, 2015 appellant, through counsel, filed a timely appeal from an August 6,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days have elapsed from the last merit decision of May 30, 2014 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant’s counsel contended that OWCP’s decision was contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 13, 2013 appellant, then a 41-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she suffered a torn meniscus of the left knee in the course of her
federal employment. She noted that, upon returning from her route on February 28, 2013, she
started having extreme pain in her left knee. Appellant stopped work on May 3, 2013.
In support of her claim, appellant submitted results from a magnetic resonance imaging
scan conducted on April 12, 2013 that was interpreted as showing a complex tear of the anterior
horn lateral meniscus with an associated intrameniscal cyst and full-thickness chondral central
trochlea. She received medical treatment from April 23 through June 18, 2013 from Dr. Michael
LoPresti, a Board-certified orthopedic surgeon, who diagnosed appellant with torn left meniscus
and arthralgia of the left knee. He performed an arthroscopy of the left knee and partial lateral
meniscectomy on May 3, 2013.
By decision dated September 11, 2013, OWCP denied appellant’s claim, finding that she
failed to establish that her accepted factors of federal employment caused her accepted left knee
internal derangement and lateral meniscus tear.
On September 16, 2013 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. At the hearing held on March 11, 2014, she discussed her
work history, her issues with her left knee, and her medical treatment.
By decision dated May 30, 2014, the hearing representative affirmed the September 11,
2013 decision.
On May 22, 2015 appellant, through counsel, requested reconsideration. In support
thereof, counsel submitted reports from Suburban Physical Therapy from
May 10 through 17, 2013. In these reports, Michael Janesch, appellant’s treating physical
therapist, noted that appellant had surgery on May 3, 2013 for a left knee lateral meniscus tear,
and he discussed his physical therapy treatment of appellant.
By decision dated August 6, 2015, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
2

Supra note 1. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

2

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
also be received within one year of the date of that decision.4 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.5
ANALYSIS
OWCP found that appellant had established that she experienced the working conditions
as alleged and that appellant sustained internal derangement of the left knee with a torn lateral
meniscus. However, it denied appellant’s claim because she had not submitted medical evidence
establishing a causal relationship between the accepted medical conditions and the accepted
factors of her federal employment.
The last merit decision in this case was the hearing representative’s decision of May 30,
2014 affirming the September 11, 2013 decision denying appellant’s claim for failure to establish
a causal relationship between her accepted employment factors and her accepted torn meniscus.
The Board is restricted to reviewing OWCP decisions issued within 180 days of appellant’s
October 20, 2015 date of filing of this appeal and, therefore, the Board does not have jurisdiction
over the merits of this case. Accordingly, the Board is limited to reviewing the nonmerit
decision denying reconsideration issued on August 6, 2015. The Board will only address
whether appellant’s request for reconsideration was properly denied without merit review.6
As previously noted, OWCP determined that appellant experienced the employment
factors as alleged and that she suffered from a torn meniscus, but denied appellant’s claim as she
failed to submit rationalized medical evidence establishing a causal connection between her torn
meniscus and her accepted employment factors. Causal relationship is a medical issue and must
be established by rationalized medical evidence. Appellant’s claim was denied as she had not
submitted any medical evidence establishing a causal relationship.
In support of appellant’s reconsideration request, counsel submitted notes from her
physical therapist. Reports of physical therapists however have no probative value regarding the
medical issue of causal relationship as physical therapists are not considered physicians as
defined by FECA.7 Therefore, the reports of appellant’s physical therapist do not constitute
relevant and pertinent medical evidence.8

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Id. at § 501.3(e).

7

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); J.G.,
Docket No. 15-251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18, 2008) (records from
physical therapists do not constitute competent medical opinion in support of causal relation, as physical therapists
are not physicians as defined under FECA).
8

A.L., Docket No. 15-1418 (issued October 8, 2015).

3

The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not constituted relevant and pertinent new evidence not
previously considered by OWCP. Accordingly, the Board finds that she did not meet any of the
necessary requirements and is not entitled to further merit review.9
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 6, 2015 is affirmed.
Issued: March 2, 2016
Washington, DC

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

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

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

9

See L.H., 59 ECAB 253 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, DAYTON
INTERNATIONAL AIRPORT, Vandalia, OH,
Employer
__________________________________________

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

Docket No. 11-1831
Issued: August 22, 2012

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 August 2, 2011 appellant, through her attorney, filed a timely appeal from a June 29,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) affirming the prior
reduction of her compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issue is whether OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) for failing to cooperate with vocational rehabilitation.
On appeal, counsel asserts that OWCP’s August 2, 2011 decision is contrary to fact and
law.
1

5 U.S.C. §§ 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 12, 2004 appellant, then a 57-year-old security screener,
sustained a lumbar strain, lumbar radiculopathy and a herniated disc at L4-5 when she lifted a
heavy baggage item. Appellant stopped work in March 2004 and did not return. She received
total disability wage-loss compensation beginning on May 16, 2004. Appellant was separated
from the employing establishment in January 2008. She underwent an anterior C5-6 discectomy
on June 4, 2008.
In December 12, 2008 reports, Dr. Martti Kahkonen, an attending physician specializing
in occupational medicine, found that appellant could perform full-time duty with lifting, pulling
and pushing permanently limited to 20 pounds and no bending or twisting.
Based on Dr. Kahkonen’s opinion that appellant was no longer totally disabled for work,
OWCP referred her for vocational rehabilitation on February 6, 2009 and appointed a vocational
rehabilitation counselor. Appellant met with the counselor on February 18, 2009. She provided
information about her medical history, education and work experience. The counselor
recommended that she participate in a work hardening program. In a February 24, 2009 letter,
Dr. Kahkonen advised the counselor that appellant required imaging studies and
electrodiagnostic testing before she could participate in a work hardening program.
Appellant completed vocational aptitude testing on February 26 and 27, 2009 as directed.
She tested below average in all occupational skill clusters. Appellant’s skills and background
were found most suited to an entry level information clerk or cashier position. In a March 2,
2009 letter, the employing establishment advised the vocational counselor that there was no work
available within her restrictions. OWCP directed the counselor to institute plan development
based on the vocational goals identified by testing.
Appellant met with the vocational rehabilitation counselor on March 16 and 25, 2009.
She stated that she would accept any job the counselor offered her and signed a job placement
plan on April 7, 2009.
In an April 26, 2009 letter, the counselor advised appellant to meet her at a local library
on May 4, 2009 at 10:00 a.m. to sign a new placement plan. In a May 5, 2009 report, she stated
that she called appellant at 8:00 a.m. on May 4, 2009 asking appellant to call her as she had to
reschedule the meeting for another time that day. The counselor advised that appellant did not
return her call. She asserted that appellant obstructed the vocational rehabilitation process as she
failed to appear at the meeting. OWCP placed the vocational rehabilitation effort in “interrupt”
status as of May 6, 2009.
In a May 11, 2009 letter, OWCP advised appellant that, if she failed to cooperate with the
preliminary stages of vocational rehabilitation, her wage-loss compensation would be reduced to
zero based on the assumption that participation in vocational rehabilitation would have resulted
in her return to work with no loss of wages. Appellant had 30 days to respond by expressing her
willingness to cooperate and resuming the vocational rehabilitation effort.

2

As of May 15, 2009, appellant selected two job goals and agreed to discuss her medical
limitations with her physician. On May 19, 2009 Dr. Kahkonen renewed the restrictions
provided on December 12, 2008.
In June 10, 2009 letters, appellant asserted that the counselor accused her of not attending
the May 4, 2009 meeting to cover her own absence. She reported to the library on May 4, 2009
at 10:00 a.m. as instructed by the counselor and remained there until 11:26 a.m., but the
counselor failed to appear. Appellant enclosed a library receipt demonstrating that she checked
out a book at 11:26 a.m. on May 4, 2009.
In an undated letter received by OWCP on June 17, 2009 the counselor acknowledged
that she changed the May 4, 2009 meeting time to attend a medical appointment but had notified
appellant of the change “in plenty of time.” She alleged that she had a very hard time
communicating with appellant and was constantly correcting her statements since appellant
would misinterpret what she had stated. On June 19, 2009 OWCP changed the vocational
rehabilitation program status back to “plan development.” It assured appellant’s attorney that the
counselor would continue to provide professional, quality service.
Appellant attended June 29 and July 7, 2009 meetings as instructed. In a July 7, 2009
letter to OWCP, the counselor noted that appellant exhibited pain behaviors during a meeting
that day with James Linkhart, a career counselor, who provided job search training. She asserted
that appellant made “barely veiled innuendos,” rude remarks and “nonverbals” that were
“unacceptable.” The counselor requested that appellant be reassigned to another counselor.
In a July 10, 2009 letter, Mr. Linkhart advised OWCP that, based on his July 7, 2009
meeting, appellant was not a suitable candidate for job placement as she was 63 years old, had no
marketable skills and believed that she was disabled for work.
On September 15, 2009 the vocational counselor identified the sedentary clerical
positions of Mail Clerk (U.S. Department of Labor, Dictionary of Occupational Titles # 209.689026) and Receptionist (DOT# 237.367-038) as vocational goals.
The record contains a September 29, 2009 meeting agenda from the vocational counselor.
There is no letter of record advising appellant of the meeting. On September 30, 2009 OWCP
placed the vocational rehabilitation effort in interrupted status based on the counselor’s assertion
that appellant failed to attend a September 29, 2009 meeting. In an October 1, 2009 form, the
counselor alleged that appellant obstructed the vocational rehabilitation effort by failing to attend
the September 29, 2009 meeting.
In an October 5, 2009 letter, OWCP advised appellant that she had obstructed the
vocational rehabilitation plan by failing to attend a scheduled September 29, 2009 meeting. It
instructed her to contact the vocational counselor within 30 days and resume cooperating with
the program or her monetary compensation would be reduced to zero under section 8113(b) of
FECA.
In an October 19, 2009 letter, the vocational counselor asserted that she spoke to
appellant by telephone on September 22, 2009 to schedule the September 29, 2009 meeting and
that appellant agreed to attend. On October 22, 2009 the counselor stated that she had not
3

spoken with appellant since July 10, 2009. OWCP closed the vocational rehabilitation effort on
November 1, 2009.
In a January 6, 2010 letter, appellant asserted that the vocational counselor cancelled
meetings without adequate notice, refused to answer her questions and failed to acknowledge the
accepted medical conditions.
By decision dated December 6, 2010, OWCP reduced appellant’s compensation to zero
under 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 to reflect what her wage-earning capacity
would have been if she had cooperated with vocational rehabilitation. The reduction would
continue until appellant contacted the vocational counselor and agreed to cooperate with
vocational rehabilitation. OWCP found that appellant failed to attend May 4 and September 29,
2009 meetings as instructed and failed to respond to OWCP’s May 11, 2009 letter. It further
found that she failed to show good cause for her failure to undergo vocational rehabilitation as
directed.
On December 14, 2010 counsel requested a telephonic hearing. In a January 5, 2011
telephone memorandum, OWCP noted that appellant called that day asking for assistance in
contacting the vocational counselor. It advised her that “trying to contact the [v]oc[ational]
[r]ehab[ilitation counselor] at this stage will not help her case” and she should wait to “explain
her concerns at the hearing.”
A telephonic hearing was held on April 13, 2011 at the hearing, appellant asserted that
the vocational counselor telephoned her on September 22, 2009 asking her when they could
meet. She explained that she might be able to meet on or about September 29, 2009 but did not
agree to a specific date or time. The counselor did not state that a September 29, 2009 meeting
was scheduled. Appellant submitted an April 13, 2011 letter stating that she would “continue to
participate with the vocational rehabilitation program.”
By decision dated and finalized on June 29, 2011, an OWCP hearing representative
affirmed the December 6, 2010 decision reducing appellant’s compensation to zero on the
grounds that she failed to cooperate with vocational rehabilitation. The hearing representative
directed reinstatement of her compensation retroactively to April 13, 2011 at such time as she
“resumed the effort as directed.”
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 “Disability” means the
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury. It may be partial or total.3 Once OWCP accepts a claim, it has the burden of

2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f) (1999).

4

proving that the disability has ceased or lessened before it may terminate or modify
compensation benefits.4
OWCP may direct a permanently disabled employee to undergo vocational
rehabilitation.5 If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed, OWCP, on review under 5 U.S.C. § 8128 and after finding that
in the absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of the individual
in accordance with what would probably have been his or her wage-earning capacity in the
absence of the failure, until the individual in good faith complies with the direction of OWCP.6
Where a suitable job has been identified, OWCP will reduce the employee’s future
monetary compensation based on the amount which would likely have been his or her wageearning capacity had he or she undergone vocational rehabilitation. It will determine this amount
in accordance with the job identified through the vocational rehabilitation planning process,
which includes meetings with OWCP field nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the direction of OWCP.7
ANALYSIS
OWCP accepted that appellant sustained a herniated L4-5 disc, a lumbar strain and
lumbar radiculopathy. On December 12, 2008 Dr. Kahkonen, an attending physician, opined
that appellant could perform full-time work with restrictions. Upon receiving this evidence,
OWCP properly referred her to vocational rehabilitation services on February 6, 2009. It
reduced appellant’s compensation benefits to zero effective December 6, 2010 under 5 U.S.C.
§ 8113(b) and 20 C.F.R. § 10.519, on the grounds that she failed to cooperate with vocational
rehabilitation by failing to attend scheduled May 5 and September 29, 2009 meetings. The
Board finds, however, that OWCP did not meet its burden of proof in establishing that she failed
to cooperate as alleged.
Appellant cooperated with the early and necessary stages of the vocational rehabilitation
effort. She met with the rehabilitation counselor on February 18, March 16 and 25, 2009 and
underwent vocational testing as directed on February 26 and 27, 2009. Appellant signed an
agreement to participate in career counseling and expressed willingness to accept any position
offered to her.
On May 4, 2009 appellant reported to a local library at 10:00 a.m. for a scheduled
meeting with the vocational counselor, but the counselor was not at the library. The counselor
then alleged that appellant failed to attend the meeting. OWCP advised appellant by May 11,
4

J.E., 59 ECAB 606 (2008); Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238,
241 (1984).
5

5 U.S.C. § 8104(a).

6

Id. at § 8113(b).

7

20 C.F.R. § 10.519(a).

5

2009 letter that she had failed to cooperate with the vocational rehabilitation process and
afforded her 30 days to resume cooperation. The counselor later acknowledged that she
attempted to reschedule the May 4, 2009 meeting by leaving a telephone message for appellant at
8:00 a.m. on May 4, 2009. She explained that she had a “VERY HARD communicating” with
appellant. After appellant produced a receipt confirming her presence at the library at 11:26 a.m.
on May 4, 2009, OWCP reinstated vocational rehabilitation and assured appellant’s attorney that
the vocational counselor would provide professional service. The Board finds that OWCP did
not establish that appellant failed to attend the May 4, 2009 meeting. Appellant provided factual
evidence corroborating her presence at the agreed meeting place and time and the vocational
counselor acknowledged an unsuccessful last minute attempt to reschedule the meeting. The
May 4, 2009 incident does not constitutes obstruction of the vocational rehabilitation process by
appellant.
Regarding OWCP’s finding that appellant failed to respond to its May 11, 2009 warning
letter, the Board notes that appellant attended a meeting with the vocational counselor on
May 15, 2009, selected vocational goals and submitted medical forms to her physician. The
Board finds that these actions are persuasive evidence that appellant “resumed” cooperation with
the vocational rehabilitation process as of May 15, 2009, in accordance with the May 11, 2009
advisement.
Appellant attended scheduled meetings with the counselor on June 29 and July 7, 2009.
The counselor alleged that, during the July 7, 2009 meeting, appellant made “innuendos,” rude
remarks and committed “unacceptable” nonverbal acts. She requested that OWCP assign
appellant to a different counselor. However, Mr. Linkhart, a job skills trainer present at the
July 7, 2009 meeting, did not corroborate the counselor’s allegations of argumentative or
inappropriate remarks. Instead, he found that appellant was a poor candidate for vocational
rehabilitation due to age, lack of marketable skills and focus on her medical condition. The
Board finds that the divergent accounts of the July 7, 2009 meeting cast doubt on the accuracy of
the vocational counselor’s allegations against appellant.
OWCP further found that appellant obstructed the vocational rehabilitation process by
failing to attend a scheduled September 29, 2009 meeting. However, there is insufficient
evidence that the vocational counselor advised her of the date and time of this meeting. The
record contains a September 29, 2009 meeting agenda written by the counselor. But there is no
letter to appellant advising her of the scheduled meeting. Additionally, the counselor provided
divergent accounts of how she advised appellant of the meeting. In an October 19, 2009 letter,
the counselor asserted that she scheduled the September 29, 2009 meeting by telephone on
September 22, 2009. Yet the counselor stated in an October 22, 2009 letter that she had not
spoken with appellant since July 10, 2009. During the April 13, 2011 hearing, appellant testified
that the counselor telephoned her on September 22, 2009 and discussed various possible meeting
dates, but did not schedule a definite meeting. The Board finds that the vocational counselor’s
inconsistent account of events, coupled with the lack of a notification letter, are persuasive
evidence that there was no meeting scheduled for September 29, 2009. Therefore, appellant did
not obstruct the vocational rehabilitation process.

6

OWCP has not met its burden of proof to reduce appellant’s compensation. The case will
be returned to OWCP for reinstatement of appropriate compensation benefits retroactive to
December 6, 2010.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation for failing to
cooperate with vocational rehabilitation.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 22, 2012
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

7