United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and

U.S. POSTAL SERVICE, FRED WEATHERS
POST OFFICE, St. Louis, MO, Employer
__________________________________________

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

Docket No. 11-1244
Issued: January 3, 2012

Case Submitted on the Record

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

JURISDICTION
On April 26, 2011 appellant filed a timely appeal from a January 14, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) regarding a schedule award and a
nonmerit February 18, 2011 decision denying reconsideration. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained more than a three percent permanent
impairment of the right lower extremity, for which he received a schedule award; and
(2) whether OWCP properly denied appellant’s request for reconsideration.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that OWCP did not fully consider the severity of the
accepted medial meniscus tear when calculating the percentage of permanent impairment.2
FACTUAL HISTORY
OWCP accepted that on January 7, 2009 appellant, then a 38-year-old city carrier,
sustained a right lateral meniscus tear when he slipped and fell on a wooden step while
delivering mail. It also accepted a left hip strain which resolved by February 13, 2009.3 On
May 11, 2009 Dr. W. Christopher Kostman, an attending Board-certified orthopedic surgeon,
performed an arthroscopic partial lateral meniscectomy of the right knee. During surgery, he
observed grade 3 chondromalacia of the patella. In a June 9, 2009 report, Dr. Kostman found
that appellant had reached maximum medical improvement and released him to full duty.
On August 19, 2009 appellant claimed a schedule award. OWCP advised him to obtain
an impairment rating from his attending physician referencing the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). It
accepted that appellant sustained a second lateral meniscus tear on September 12, 2009 while
delivering mail.4
In a September 18, 2009 report, Dr. Kostman opined that according to unspecified
portions of the A.M.A., Guides, appellant had a 2 percent impairment of the right lower
extremity due to the accepted injury and an additional 10 percent impairment due to preexisting
degenerative osteoarthritis of the right knee.
In a December 17, 2009 report, Dr. Keith J. Odegard, an attending Board-certified
orthopedic surgeon, observed an antalgic gait, right patellofemoral crepitus and an audible pop in
the right knee when appellant stepped up. X-rays showed mild degenerative changes and medial
joint space narrowing in both knees. Dr. Odegard recommended a repeat right partial lateral
meniscectomy.
In an October 14, 2010 impairment rating, an OWCP medical adviser reviewed the
medical record and a statement of accepted facts. He opined that, according to Table 16-3,5
appellant’s grade 2 and 3 chondromalacia did not warrant an impairment rating for arthritis. The
medical adviser assessed a grade 2 meniscal injury according to Table 16-3. Utilizing Table

2

Appellant submitted new medical evidence on appeal. The Board may not consider evidence for the first time
on appeal that was not before OWCP at the time it issued the final decision in the case. Appellant may submit such
evidence to OWCP pursuant to a valid request for reconsideration.
3

A February 24, 2009 magnetic resonance imaging scan of the right knee showed a complete tear and other
severe abnormalities throughout the lateral meniscus.
4

Appellant initially claimed a September 12, 2009 recurrence of disability. OWCP processed the claim as a new
injury under File No. xxxxxx394. On September 28, 2010 it doubled File No. xxxxxx394 with File No. xxxxxx485,
assigning File No. xxxxxx485 as the master file number.
5

Table 16-3, pages 509-511 of the sixth edition of the A.M.A., Guides is entitled “Knee Regional Grid -- Lower
Extremity Impairments.”

2

16-6,6 he assigned a grade 2 modifier for Functional History (GMFH) for an antalgic limp.
Referring to Table 16-7,7 the medical adviser assigned a grade 1 modifier for Physical
Examination (GMPE) for consistent, minimal palpatory findings without observed abnormalities.
He assigned a grade 1 modifier for Clinical Studies (GMCS) for medial joint space narrowing,
according to Table 16-8.8 Using the net adjustment formula of (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX), an OWCP medical adviser found that (2-1) + (1-1) + (1-1) resulted in a
net grade modifier of +1, raising the impairment class from “C” to “D,” equaling a two percent
permanent impairment of the right lower extremity.
By decision dated October 26, 2010, OWCP issued appellant a schedule award for two
percent impairment of the right lower extremity.
In a November 10, 2010 letter, appellant requested reconsideration, contending that
OWCP did not consider the complete medical record. In a November 10, 2010 report,
Dr. Odegard noted that an OWCP medical adviser’s impairment rating did not include a May 4,
2010 repeat right knee arthroscopy to repair a large lateral meniscus tear with a large flap. On
examination, Dr. Odegard noted an antalgic gait and medial and lateral joint line tenderness.
Referring to the A.M.A., Guides, he assessed a GMFH of 2 according to Table 16-6, a GMPE of
2 according to Table 16-7 and a GMCS of 2 according to Table 16-8. Using the net adjustment
formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. Odegard found a “class
adjustment plus 3, moving him to the [nine] percent lower extremity impairment rating.” He
contended, however, that he actually felt that appellant had a 12 percent impairment of the right
leg.
In a December 23, 2010 report, an OWCP medical adviser reviewed the medical record.
He explained that, according to Table 16-3, a partial lateral meniscectomy equaled a class C or
default rating of two percent lower extremity impairment. Considering the grade modifiers
offered by Dr. Odegard, the medical adviser increased the impairment class from C to E,
resulting in three percent impairment of the right leg. The medical adviser explained that the
remainder of Dr. Odegard’s rating was incorrect as it was based on a total lateral meniscectomy,
whereas appellant only underwent a partial lateral meniscectomy.
By decision dated January 24, 2011, OWCP granted an additional schedule award for an
additional one percent permanent impairment of the right leg, for a total of three percent.
In a January 26 and February 11, 2011 letters, appellant requested reconsideration. He
asserted that he had greater than a three percent impairment of the right leg as he had ongoing
knee symptoms that interfered with prolonged walking and activities of daily living. Appellant
submitted a January 18, 2011 report from Dr. Odegard opining that the two partial lateral
6

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment -Lower Extremity Impairments.”
7

Table 16-7, page 517 of the sixth edition of the A.M.A., Guides is entitled “Physical Examination Adjustment -Lower Extremity Impairments.”
8

Table 16-8, page 519 of the sixth edition of the A.M.A., Guides is entitled “Clinical Studies Adjustment -Lower Extremities.”

3

meniscectomies caused progressive osteoarthritis in the right knee. He also submitted
photographs from the May 14, 2010 arthroscopy and copies of reports previously of record.
By decision dated February 18, 2011, OWCP denied reconsideration on the grounds that
the evidence submitted in support of appellant’s request was irrelevant to the schedule award
issue or duplicative of evidence previously of record.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA9 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized 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 OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.10 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.13 The net adjustment formula is (GMFH - CDX) + (GMPE - DCX) + (GMCS CDX).
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained right lateral meniscal tears on January 7 and
September 12, 2009. Appellant underwent an arthroscopic partial lateral meniscectomy on
May 11, 2009. He claimed a schedule award on August 19, 2009. OWCP initially issued an
October 26, 2010 schedule award for a two percent impairment of the right lower extremity. On
reconsideration appellant submitted a November 10, 2010 report from Dr. Odegard, an attending
Board-certified orthopedic surgeon, describing a May 4, 2010 partial lateral meniscectomy.

9

5 U.S.C. §§ 8101-8193.

10

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

11

Federal (FECA) Procedure Manual, Part 2 – Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
12

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.”
13

A.M.A., Guides (6th ed., 2008), pp. 494-531.

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In a December 23, 2010 report, an OWCP medical adviser assessed a grade 2 meniscal
injury according to Table 16-3. He concurred with Dr. Odegard’s November 10, 2010 findings
of a GMFH of 2 for an antalgic limp according to Table 16-6, a GMPE of 2 for consistent
tenderness to palpation with minimal abnormal findings according to Table 16-7 and a GMCS of
2 for medial joint space narrowing according to Table 16-8. Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), an OWCP medical adviser found that
(2-1) + (2-1) + (2-1) resulted in a net grade modifier of +2, raising the impairment class from
“C” to “E,” equaling three percent permanent impairment of the right lower extremity. OWCP
issued a January 24, 2011 decision awarding an additional one percent impairment of the right
leg, or a total of three percent.
The Board finds that an OWCP medical adviser applied the appropriate tables and
grading schemes of the sixth edition of the A.M.A., Guides to Dr. Odegard’s clinical findings.
An OWCP medical adviser’s calculations were mathematically accurate. There is no medical
evidence of record utilizing the appropriate tables of the sixth edition of the A.M.A., Guides
demonstrating a greater percentage of permanent impairment. The medical adviser explained
that Dr. Odegard’s assessment of a 9 to 12 percent lower extremity impairment was based
erroneously on a total meniscectomy, whereas appellant only underwent a partial lateral
meniscectomy. Therefore, OWCP properly relied on an OWCP medical adviser’s assessment of
a three percent impairment of the right lower extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, appellant contends that OWCP did not fully consider the severity of the
accepted medial meniscus tear when determining the appropriate percentage of permanent
impairment. As stated, an OWCP medical adviser properly applied the A.M.A., Guides to
Dr. Odegard’s clinical findings. There is no medical evidence of record properly applying the
A.M.A., Guides that supports a greater percentage of impairment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA14
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) submit
relevant and pertinent new evidence not previously considered by OWCP.15 Section 10.608(b)
provides that, when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.16
14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b)(2).

16

20 C.F.R. § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

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In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.17 The claimant need
only submit relevant, pertinent evidence not previously considered by OWCP.18 When
reviewing an OWCP decision denying a merit review, the function of the Board is to determine
whether OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.19
ANALYSIS -- ISSUE 2
OWCP issued a January 24, 2011 decision granting a schedule award or a three percent
permanent impairment of the right leg. Appellant requested reconsideration on January 26,
2011, asserting that he sustained a greater percentage of impairment. He submitted a
February 11, 2011 letter describing difficulties with activities of daily living, May 14, 2010
surgical photographs, copies of evidence previously of record and a January 18, 2011 report from
Dr. Odegard opining that the two lateral meniscectomies precipitated osteoarthritis in the right
knee.
To be considered relevant evidence, the documents submitted on reconsideration must
address the issue of whether appellant sustained more than a three percent impairment of the
right lower extremity. In the January 26 and February 11, 2011 letters, appellant did not show
that OWCP erroneously applied or interpreted a specific point of law. He did not advance a new
and relevant legal argument. Instead, appellant asserted that he had a greater percentage of
impairment than that awarded.
Dr. Odegard’s January 18, 2011 report and the May 14, 2010 surgical photographs do not
provide a schedule award rating or otherwise address the appropriate percentage of permanent
impairment. They are therefore irrelevant to the recurrence claim and do not require reopening
the record for further merit review.20 The duplicate reports are not an adequate basis for a merit
review.21
The Board therefore finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

17

Helen E. Tschantz, 39 ECAB 1382 (1988).

18

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

19

Annette Louise, 54 ECAB 783 (2003).

20

Joseph A. Brown, Jr., 55 ECAB 542 (2004); Mark H. Dever, supra note 18.

21

Denis M. Dupor, 51 ECAB 482 (2000).

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CONCLUSION
The Board finds that appellant has not established that he sustained more than a three
percent impairment of the right lower extremity, for which he received a schedule award. The
Board further finds that OWCP properly denied his request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 18 and January 14, 2011 are affirmed.
Issued: January 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Newark, NJ, Employer
__________________________________________

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Appearances:
Lawrence Berger, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1543
Issued: February 2, 2022

Case Submitted on the Record

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

JURISDICTION
On August 24, 2020 appellant, through counsel, filed a timely appeal from a May 28, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability from work commencing August 3, 2014 causally related to her accepted employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On April 24, 2003 appellant, then a 41-year-old immigration enforcement agent, filed a
traumatic injury claim (Form CA-1) alleging that on April 17, 2003 she injured her neck during
required physical mat room training exercises while in the performance of duty. OWCP assigned
the claim OWCP File No. xxxxxx260 and accepted ventral disc herniation at C5-6 and cervical
radiculopathy. Appellant stopped work on May 27, 2003. OWCP paid her wage-loss
compensation for disability from work on the supplemental rolls commencing July 11, 2003 and
on the periodic rolls commencing January 27, 2004. On February 28, 2005 Dr. John J. Knightly,
a Board-certified neurosurgeon, performed an OWCP-authorized anterior cervical discectomy at
C5-6 and C6-7 with fusion. Appellant returned to a limited-duty position on September 18, 2006,
performing clerical duties and occasional lifting/carrying of articles such as docket files, ledgers,
and small office tools.5
Appellant returned to full-duty work on May 22, 2009.
In a November 18, 2011 report, Dr. Knightly diagnosed ulnar neuropathy, anxiety,
depression, cervical radiculopathy, cervicalgia, history of migraines, fibromyalgia, cervical
spondylosis, and neuropathy. He noted that appellant’s medications included Xanax twice daily,
and Vicodin as needed for pain. In November 8, 2012 report, Dr. Dale R. Tidaback, a Boardcertified occupational medicine specialist, assessed appellant’s fitness for duty. He determined
that, while appellant was physically capable of performing her employment duties, she was not fit
for duty, including carrying an issued firearm, due to her continued use of narcotics and antianxiety medications on an “as needed” basis as these could cloud her sensorium and affect decision
making. Dr. Tidaback indicated that there were other equally efficacious pain and anxiety
medications that did not produce side effects, which could adversely affect her job.
In correspondence dated January 14, 2013, J.M., deputy field office director with the
employing establishment, notified appellant that it proposed to remove her from her position as an
immigration enforcement agent. He indicated that the employing establishment was concerned
about her ability to perform all essential functions of her position and for her safety and well-being,
4

Docket No. 08-1481 (issued January 27, 2009); Docket No. 18-0130 (issued September 17, 2018).

5

On April 10, 2007 appellant filed a second traumatic injury claim (Form CA-1) alleging that she sustained a neck
injury on February 17, 2007 during a 14-hour airplane flight from Newark, New Jersey to New Delhi, India when she
was transporting a prisoner while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx616,
accepted the conditions of cervical strain and cervical muscle spasm, and paid wage-loss compensation for periods of
disability. On April 20, 2009 it administratively combined OWCP File Nos. xxxxxx260 and xxxxxx616, with the
current file designated as the master file.

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and the safety and well-being of her coworkers and the public. J.M. indicated that, during a notice
period, appellant would remain in her current duty status of performing administrative duties. In
a January 29, 2013 memorandum, the employing establishment informed appellant that she was
being placed on administrative duty with no law enforcement duties at the Moore Haven facility
in Florida, effective that date.
In a December 9, 2013 report, Dr. Lowell Davis, an osteopath and Board-certified
anesthesiologist, diagnosed cervicalgia, cervical myofascial pain, and status post cervical surgery.
He noted that appellant could return to full-duty work and should continue her current
pharmacological regimen.
The employing establishment removed appellant effective August 3, 2014 due to her use
of prescribed narcotic medication, which it asserted was not necessitated by her employment
injury.
OWCP subsequently received a June 30, 2014 letter, wherein M.M., field office director at
the employing establishment, advised that the employing establishment had informed appellant by
letter dated January 14, 2013 that it had proposed to remove her due to medical inability to perform
the duties of her position as an immigration enforcement agent due to her continued use of narcotic
and other medications, which he maintained, clouded the sensorium and affected decision making. 6
He stayed the removal for 30 days to allow appellant time to apply for an enforcement removal
assistant position.
On October 23, 2014 appellant filed a notice of recurrence (Form CA-2a) alleging that a
recurrence of her accepted employment injuries occurred on August 3, 2014. She asserted that
commencing January 29, 2013 she was prevented from performing usual duties until her removal
from the employing establishment on August 3, 2014 even though her physician had returned her
to full-duty status.
In a development letter dated December 30, 2014, OWCP informed appellant of the
deficiencies of her recurrence claim. It advised her of the medical evidence needed to establish
her claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
respond.
In a January 28, 2015 report, Dr. Matthew H. Moretti, an osteopath and Board-certified
family medicine specialist, noted the history of appellant’s two employment injuries. He indicated
that appellant reported that she was required to commute 100 miles each way to her job, and noted
that the stress of this commute caused muscle spasm and neck pain which, in turn, led to severe
anxiety and migraine headaches. Dr. Moretti opined that appellant’s medical symptoms were all
caused by and/or stemmed from her employment injuries and were then exacerbated by a daily,
extremely long commute.
By decision dated April 22, 2015, OWCP denied appellant’s recurrence claim, finding that
appellant failed to establish that a spontaneous change in her employment-related medical
condition necessitated a work stoppage on or after August 3, 2014.
6

The position description for an immigration enforcement agent indicates that the agent carries firearms in the
performance of duty. The record also contains documents concerning employing establishment firearms policy.

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On October 13, 2015 appellant, through counsel, requested reconsideration of the April 22,
2015 decision. Medical evidence submitted included a May 12, 2015 report in which Dr. Samy F.
Bishai, a Board-certified orthopedic surgeon, diagnosed cervical disc syndrome with bilateral
radiculopathy, and status post disc excision and fusion at C5 -6 and C6-7. On May 15, 2015
Dr. Davis diagnosed cervicalgia, myofascial pain syndrome, cervical facet joint mediated pain,
post cervical laminectomy, and anxiety/depression. In a June 22, 2015 report, Dr. Knightly noted
that he had not seen appellant since May 2013. He described her complaints of continued neck
pain and increasing arm pain and numbness with tingling into the hands bilaterally. Following
physical examination, Dr. Knightly diagnosed deteriorating anxiety and depression, deteriorating
right cervical radiculopathy, and worsening neck pain. He opined that because appellant was on
Vicodin and Xanax, she would not be qualified to carry a firearm.
In a May 20, 2015 report, Dr. Moretti indicated that, despite a May 2006 functional
capacity evaluation (FCE), which found appellant incapable of performing her usual position, she
was returned to full duty, working eight hours per day, “in fear of retribution or termination,” and
that an FCE in July 2012 recommended six-hour workdays, but she was forced to work eight-hour
days with a two-hour commute each way. He opined that appellant’s pain was caused by a workrelated injury, exacerbated by lack of approval for physical therapy and nonadherence by her
supervisors of medically recommended work restrictions. In an August 25, 2015 report,
Dr. Moretti opined that appellant’s anxiety and depression were due to her employment injuries.
He advised that she could not perform any work due to chronic pain and secondary severe anxiety.
On September 23, 2015 OWCP referred appellant for a second opinion examination and
evaluation, along with a statement of accepted facts (SOAF) and a list of questions, to Dr. Peter J.
Millheiser, a Board-certified orthopedic surgeon. It requested that Dr. Millheiser evaluate whether
appellant’s accepted employment injuries prevented her from performing her regular duties
without restrictions.
In an October 19, 2015 report, Dr. Millheiser advised that the physical examination
demonstrated moderate restriction of appellant’s cervical spine motion in all planes with no
tenderness, spasm, or trigger points present. He discussed appellant’s diagnostic testing and
diagnosed post cervical fusion from C5 to C7. Dr. Millheiser indicated that appellant had a chronic
pain problem following the cervical fusion and still had neurological findings, including
hypoesthesia of the left middle finger and slight right thenar atrophy , which were residuals of her
employment injuries. He also noted that appellant suffered from anxiety and should be weaned
off narcotics. Dr. Millheiser concluded that appellant could not return to regular-duty work
without restrictions due to the cervical fusion surgery, but could perform modified duty with lifting
of no more than 30 pounds, and avoidance of neck twisting, running, climbing, and subduing/
lifting uncooperative individuals.
By decision dated November 1, 2016, OWCP denied modification of its April 22, 2015
decision, finding that the medical evidence submitted was insufficient to establish a spontaneous
worsening of her accepted conditions and that the removal of her limited-duty position was due to
the daily commute she endured after her return to full-duty work.
On June 12, 2017 appellant, through counsel, requested reconsideration of the November 1,
2016 decision. Counsel asserted that appellant sustained a recurrence of disability because her
limited-duty work was withdrawn. In an April 25, 2017 report, Dr. Davis noted that appellant was
last seen in May 2015. He described her complaint of right-sided neck, shoulder, and upper
4

extremity pain, managed by medication. Following physical examination, Dr. Davis diagnosed
cervical spondylosis without myelopathy, post cervical laminectomy syndrome, and right cervical
radiculopathy.
By decision dated August 23, 2017, OWCP denied modification of its November 1, 2016
decision.
Appellant appealed to the Board and, by decision dated September 17, 2018,7 the Board
set aside the August 23, 2017 decision and remanded the case to OWCP for further development.
The Board found that it was unclear from the case record whether appellant was prescribed the
medications Xanax and Vicodin for her accepted employment injuries.
On remand, OWCP referred appellant for a second opinion examination and evaluation,
along with a SOAF and series of questions, to Dr. Millheiser. It requested that Dr. Millheiser
evaluate whether her use of Xanax and Vicodin was necessitated by the accepted employment
injuries.
In a report dated November 5, 2018, Dr. Millheiser reported the findings of his physical
examination, noting that appellant had a mild restriction of the cervical spine motion and no
tenderness. He diagnosed post cervical fusion surgery and found that she was able to work.
Dr. Millheiser advised that, with respect to the use of Xanax, appellant appeared to have had a
stale cervical fusion and that she had no significant objective findings with respect to neurological
loss over the years. He indicated that there was no reason for her to be on narcotics for the 13
years that had elapsed since her surgery. Dr. Millheiser opined that appellant’s use of narcotics
could not be explained by her physical findings and that it was not necessitated by the conditions
of cervical radiculopathy and cervical spasm.
By decision dated January 25, 2019, OWCP denied appellant’s claim, finding that she had
not established a recurrence of disability commencing August 3, 2014 causally related to her
accepted employment injury.
On February 16, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. Prior to the hearing, OWCP’s hearing
representative issued a May 2, 2019 decision setting aside the January 25, 2019 decision and
remanding the case to OWCP for further development. The hearing representative found that
Dr. Millheiser’s November 5, 2018 report did not fully address whether appellant’s use of Vicodin
was necessitated by work-related residuals and directed OWCP to obtain a supplemental report
from Dr. Millheiser, which fully addressed appellant’s use of both Vicodin and Xanax.
On May 15, 2019 OWCP requested a supplemental report from Dr. Millheiser in
accordance with the May 2, 2019 decision. In a July 5, 2019 report, Dr. Millheiser noted that he
had reviewed the relevant medical records and indicated that there was no change in his prior
opinion that there was no need for appellant’s ongoing use of Vicodin. He opined that there was
no physical problem that would have necessitated the use of Xanax or Vicodin and found that these
medications were not medically necessary for the accepted employment injuries. With specific
respect to Xanax usage, Dr. Millheiser indicated that appellant had no specific localizing findings
7

Supra note 4.

5

and there was no specific orthopedic or neurological reason why she needed the medication for
work-related residuals, including those related to the cervical surgery.
By decision dated July 25, 2019, OWCP denied appellant’s claim, finding that she had not
established a recurrence of disability commencing August 3, 2014 causally related to her accepted
April 17, 2003 and February 17, 2007 employment injuries.
On April 7, 2020 appellant, through counsel, requested reconsideration of the July 25, 2019
decision. In an accompanying statement, counsel argued that Dr. Millheiser did not adequately
address appellant’s need for medication to treat residuals of the accepted employment injuries.
Appellant submitted an August 22, 2019 report from Dr. Moretti who indicated that he diagnosed
her with ventral disc herniation at C5-6, cervical radiculopathy, and cervical muscle spasm, and
that he was prescribing the medications Hydrocodone, Carisoprodol, and Alprazolam (also known
as Xanax) to treat the conditions.
By decision dated May 28, 2020, OWCP denied modification.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition , which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 8 This term also means an inability to work because a limited-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. 9 A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.10
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.11
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally rela ted to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
8

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

9

Id.

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).

6

injury, and supports that conclusion with medical reasoning. 12 Where no such rationale is present,
the medical evidence is of diminished probative value.13
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited -duty work.14 As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition, or a change in the nature and extent of the limited-duty job requirements. 15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability from work commencing August 3, 2014 causally related to her accepted
employment injury.
In support of her disability claim, appellant submitted a January 28, 2015 report from
Dr. Moretti who indicated that appellant reported that she was required to commute 100 miles each
way to her job, and noted that the stress of this commute caused muscle spasm and neck pain
which, in turn, led to severe anxiety and migraine headaches. Dr. Moretti opined that appellant’s
medical symptoms were all caused by and/or stemmed from her employme nt injuries and were
then exacerbated by a daily, extremely long commute. In a May 20, 2015 report, he indicated that
an FCE in 2012 recommended six-hour workdays for appellant, but she was forced to work eighthour days with a two-hour commute each way. Dr. Moretti opined that appellant’s pain was caused
by a work-related injury, exacerbated by lack of approval for physical therapy and nonadherence
by her supervisors of medically recommended work restrictions. In an August 25, 2015 report, he
opined that appellant’s anxiety and depression were due to her employment injuries. Dr. Moretti
advised that she could not perform any work due to chronic pain and secondary severe anxiety.
Although Dr. Moretti found employment-related disability in these reports, they are of
limited probative value regarding appellant’s recurrence of disability claim because he did not
provide medical rationale in support of his opinion that appellant was disabled due to her April 17,
2003 and February 17, 2007 employment injuries. He did not describe these cervical injuries in
any detail or explain the medical mechanism through which they would have caused disability.
The Board has held that a report is of limited probative value regarding causal relationship if it
does not contain medical rationale explaining how an employment activity could have caused or

12

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

13

H.T., Docket No. 17-0209 (issued February 8, 2018).

14

See D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020);
Terry R. Hedman, 38 ECAB 222 (1986).
15

C.B., Docket No. 19-0464 (issued May 22, 2020); see R.N., Docket No. 19-1685 (issued February 26, 2020).

7

aggravated a medical condition.16 Therefore, Dr. Moretti’s reports are insufficient to establish
appellant’s recurrence of disability claim.
In a June 22, 2015 report, Dr. Knightly diagnosed deteriorating anxiety and depression,
deteriorating right cervical radiculopathy, and worsening neck pain. He opined that because
appellant was taking Vicodin and Xanax, she would not be qualified to carry a firearm. Although
Dr. Knightly suggested that appellant was disabled due to her use of medications, he did not
provide a rationalized medical opinion that appellant’s use of medication was necessitated by an
employment-related condition and, therefore, effectively caused disability by preventing her from
performing her limited-duty position. 17 As noted above, a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how an
employment activity could have caused or aggravated a medical condition. 18
Appellant also submitted a May 12, 2015 report from Dr. Bishai who diagnosed cervical
disc syndrome with bilateral radiculopathy, and status post disc excision and fusion at C5 -6 and
C6-7. In a May 15, 2015 report, Dr. Davis diagnosed cervicalgia, myofascial pain syndrome,
cervical facet joint mediated pain, postcervical laminectomy, and anxiety/depression. On April 25,
2017 he diagnosed cervical spondylosis without myelopathy, postcervical laminectomy syndrome,
and right cervical radiculopathy. In an August 22, 2019 report, Dr. Moretti indicated that he
diagnosed appellant with ventral disc herniation at C5-6, cervical radiculopathy, and cervical
muscle spasm, and that he was prescribing the medications Hydrocodone, Carisoprodol, and
Alprazolam (also known as Xanax) to treat her conditions. However, these reports are of no
probative value on the underlying issue of the case because these physicians did not provide an
opinion that appellant sustained a recurrence of disability commencing on or after August 3, 2014
causally related to her accepted April 17, 2003 and February 17, 2007 employment injuries. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship.19
Therefore, these reports are insufficient to establish appellant’s recurrence of disability claim.
In addition, other medical evidence of record indicates that appellant did not sustain a
recurrence of disability on or after August 3, 2014 because an employment-related condition
prevented her from performing her limited-duty job tasks. In an October 19, 2015 report,
Dr. Millheiser, OWCP’s referral physician, acknowledged that appellant had residuals of her 2007
cervical fusion surgery, which necessitated work restrictions including lifting of no more than 30
pounds, and avoidance of neck twisting, running, climbing, and subduing/lifting un cooperative
individuals. However, this report does not support appellant’s claim of a recurrence of total
disability because these restrictions would not prevent appellant from performing the clerical
duties of the limited-duty position she returned to af ter suffering her initial April 17, 2003
employment injury. In addition, in a supplemental report dated November 5, 2018, Dr. Millheiser
found that appellant was able to perform limited-duty work and opined that her use of prescription
medications, specifically Xanax, could not be explained by her physical findings and was not
16

Supra notes 12 and 13.

17

Id.

18

Id.

19

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

8

necessitated by the accepted work-related cervical conditions. In subsequent supplemental report
dated July 5, 2019, he opined that appellant’s use of Xanax or Vicodin was not medically necessary
for the accepted employment injuries.
As appellant has not submitted rationalized medical evidence establishing causal relationship
between her claimed recurrence of disability and the accepted April 17, 2003 and February 17, 2007
employment injuries, the Board finds that she has not met 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 has not met her burden of proof to establish a recurrence of
total disability from work commencing August 3, 2014 causally related to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Bloomfield Hills, MI, Employer
)
___________________________________________ )
M.G., Appellant

Appearances:
Paul H. Kullen, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1886
Issued: April 17, 2012

Case Submitted on the Record

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

JURISDICTION
On August 15, 2011 appellant, through her attorney, filed a timely appeal from the
April 26, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which
found that she failed to establish her claim of occupational disease. 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 met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a May 19, 2009 decision, the Board
affirmed the April 1 and September 3, 2008 OWCP decisions, which found that the medical
evidence was not sufficient to establish that appellant’s low back condition was causally related
to factors of her employment. The facts and history contained in the prior appeal are
incorporated by reference.3
On October 2, 2009 appellant’s representative requested reconsideration and provided
new medical evidence. In a September 15, 2009 report, Dr. Michael J. Kenneson, Boardcertified in family medicine, noted that appellant was diagnosed with spondylolisthesis of L5 on
S1. He explained that, in this condition, the upper vertebra slips forward of the lower vertebra
which causes narrowing of bony canals that carry nerve roots. Dr. Kenneson noted that the
narrowing resulted in compression of the nerves and caused pain which was due to the resultant
stretching of soft tissue structures. He stated that magnetic resonance imaging (MRI) scan
results compared between 2006 and 2008 revealed a worsening in appellant’s condition.
Dr. Kenneson noted that repetitive lifting, pushing and pulling created increased pressure on the
spinal column which increased the forces that ultimately resulted in worsening of the slippage
between the two affected vertebrae. He opined that appellant’s “work duties aggravated,
accelerated and contributed to the progression of her spondylolisthesis. My opinion is based
upon a reasonable degree of medical certainty.”
On November 4, 2009 OWCP referred appellant for a second opinion, examination,
together with a statement of accepted facts, a set of questions and the medical record to
Dr. Michael Holda, a Board-certified orthopedic surgeon.
In a December 9, 2009 report, Dr. Holda reviewed appellant’s medical history and set
further findings on examination. Appellant ambulated normally; was able to stand on her toes
and heels; and had no scoliosis and normal lumbar lordosis. She had pain with lumbar motion.
Flexion was to 80 degrees with pain; extension to 15 degrees with pain; and 50 degrees of side
bending to the right and left with pain. There was no tenderness to palpation of the lumbar
paravertebral musculature. There were no localizing neurological deficits in the legs and
reflexes were “2+” and symmetrical at the knees and ankles with sensation to light touch was
maintained. The extensor hallucis longus musculature was strong bilaterally. Dr. Holda noted
that straight leg raising performed in a seated position showed that appellant had 90 degrees of
elevation of the both legs with no complaints of back or leg pain. Additionally, he observed 90
degrees of elevation of both legs at the same time with no complaints of back or leg pain.
Dr. Holda diagnosed chronic low back pain and spondylolisthesis at L5-S1 Grade 1 to 2 and
degenerative arthritis of the lumbar spine. He opined that the spondylolisthesis was
developmental and preexisted her employment. Dr. Holda opined that appellant’s work exposure
as a distribution clerk beginning in 2005 temporarily aggravated the underlying condition of
2

Docket No. 08-2474 (issued May 19, 2009).

3

The record reflects that, on November 30, 2006, appellant worked in a restricted capacity. She stopped working
on September 11, 2008 and has not returned. Appellant elected disability retirement. She has preexisting
spondylolisthesis at L5-S1.

2

spondylolisthesis. He explained that spondylolisthesis could cause back pain, which could be
aggravated by bending and lifting; but it was not a permanent aggravation. Dr. Holda further
advised that appellant’s work exposure did not cause or contribute to the development of her
spondylolisthesis, but rather it had temporarily aggravated it symptomatically. Additionally, he
explained that the ongoing pain was due to the spondylolisthesis, which was preexisting.
Dr. Holda stated that he did not believe that appellant had residuals of her work-related back
condition as this would have been a temporary symptomatic aggravation of the preexisting
spondylolisthesis. He opined that the ongoing and chronic back pain was due to the condition of
spondylolisthesis which was preexisting. Dr. Holda provided restrictions to include no repetitive
bending and twisting at the waist or lifting over 15 pounds. He opined that he did not believe
that appellant was capable of performing the duties of her previous employment as a distribution
clerk. Dr. Holda opined that she reached maximum medical improvement concerning any work
injury sustained.
In a letter dated December 29, 2009, OWCP requested clarification from Dr. Holda with
regard to whether appellant’s duties as a distribution clerk affected her preexisting condition of
spondylolisthesis. It also requested clarification with regard to when her work-related condition
had ceased.
In a January 5, 2010 response, Dr. Holda noted that there were “no objective findings to
support the fact that [appellant’s] work activities temporarily aggravated her preexisting
condition of spondylolisthesis; only herself reported history.” He explained that it was “known
that heavy lifting and repetitive bending will aggravate this condition, however.” Dr. Holda
opined that, “if [appellant’s] work activities aggravated the preexisting spondylolisthesis, it
would most likely cease approximately six weeks after her exposure to bending and lifting
ceased.”
By decision dated February 2, 2010, OWCP denied modification of the prior decisions.
On June 7, 2010 appellant requested reconsideration. On July 12, 2010 appellant’s
representative submitted new medical evidence. He alleged that Dr. Holda’s report was not well
reasoned and it was “legal error” to accept the report as it was “poorly considered,” overlooked
“key facts” and “ignored” the well written opinions of Dr. Robert A. Krasnick, Board-certified in
physical medicine and rehabilitation.4
In a March 8, 2010 report, Dr. Krasnick noted appellant’s history of injury and treatment.
He advised that she had Grade 2 spondylolisthesis at the L5-S1 level; constant low back pain,
which was rated a 7 out of 10 with aching and occasional shooting pain; intermittent pain down
into the legs mainly in the thighs, occasionally into the feet; and worse with any bending or
twisting. Examination findings included flexion of 40 to 50 percent of normal; extension of 50
percent of normal with more pain with flexion than extension. Dr. Krasnick determined that
appellant was tender across the lumbosacral junction, straight leg raising was negative; motion of
the hips and knees were full and pain free. He also indicated that she had normal strength,
sensation and reflexes and could walk on her heels and toes. Dr. Krasnick diagnosed, chronic
4

Although appellant’s representative indicated that he was submitting two reports from Dr. Krasnick, only one
was received.

3

back and intermittent leg pain secondary to Grade 2 spondylolisthesis; underlying pars defect,
spondylolysis and intermittent leg pain secondary to foraminal stenosis and radiculitis. He
advised that, currently, appellant had no neurological dysfunction on examination. Dr. Krasnick
noted that daily activities were restricted due to pain. He indicated that appellant would not be
able to work at the employing establishment as she was already retired. Dr. Krasnick opined that
the work at the employing establishment “certainly aggravated and likely accelerated this
condition to the point that she was unable to work.”
By decision dated October 19, 2010, OWCP denied modification of its prior decisions.
On January 14, 2011 appellant’s representative requested reconsideration. He contended
that appellant’s back condition was permanently aggravated.
In an October 25, 2010 report, Dr. John Pispidikis, a chiropractor, diagnosed a lumbar
nerve root injury, anterolisthesis of L5-S1, Grade 2, myalgia and restricted motion. He noted
that appellant related that she was transferring flats of mail into cases causing injuries to her low
back. Dr. Pispidikis explained that the mechanism of her accident where she was lifting, twisting
and reaching combined with the competitive nature of her job over the past eight years correlated
to her MRI scan findings for Grade 1 anterolisthesis with degenerative disc disease and
accounted for her inability to perform lower extremity movements, especially walking, standing,
bending, lifting and twisting for a long period of time. He noted that appellant initially injured
her low back on November 4, 1998 and since that date her low back condition worsened.
Dr. Pispidikis opined that it was with high medical probability that her work materially
aggravated her low back condition. He advised that computerized muscle testing revealed that
appellant was unable to utilize her legs in the way she did prior to the accident as a normally
functioning person. Dr. Pispidikis provided work restrictions and opined that, within a
reasonable degree of medical certainty, the permanent limitations were a direct result of the
injury caused on November 4, 1998.
By decision dated April 26, 2011, OWCP denied modification of its prior decisions.
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 timely filed within the applicable time
limitation period 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 are causally related
to the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

4

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.7
It is well established that, where employment factors cause an aggravation of an
underlying physical condition, the employee is entitled to compensation for periods of disability
related to the aggravation. Where the medical evidence supports an aggravation or acceleration
of an underlying condition precipitated by working conditions or injuries, such disability is
compensable. However, the normal progression of untreated disease cannot be said to constitute
aggravation of a condition merely because the performance of normal work duties reveal the
underlying condition. For the conditions of employment to bring about an aggravation of
preexisting disease, the employment must be such as to cause acceleration of the disease or to
precipitate disability.8
ANALYSIS
Appellant was diagnosed with spondylolisthesis, which she attributed to her job as a
distribution clerk that required standing, bending, twisting, lifting, pushing and pulling heavy
equipment. However, she has not provided sufficient medical evidence to establish that her
diagnosed low back condition is causally related to these identified employment factors.
In support of her claim, appellant submitted a September 15, 2009 report from
Dr. Kenneson, who diagnosed spondylolisthesis of L5 on S1. He noted that MRI scan results
compared between 2006 and 2008 revealed a worsening in her condition. Dr. Kenneson advised
that repetitive lifting, pushing and pulling created increased pressure on the spinal column, which
increased the forces that ultimately resulted in worsening of the slippage between the two
affected vertebrae. He opined that appellant’s “work duties aggravated, accelerated and
contributed to the progression of her spondylolisthesis.” However, Dr. Kenneson did not explain
how he arrived at this conclusion. The Board notes that, in prior reports, he noted that appellant
sustained an injury to her neck on February 5, 2002 when a car hood fell on her neck causing
severe headaches and severe neck and low back pain. However, Dr. Kenneson does not discuss
the effect of this injury on her current condition. Additionally, while he indicated that MRI scan
7

Id.

8

A.C., Docket No. 08-1453 (issued November 18, 2008).

5

results compared between 2006 and 2008 showed a worsening in appellant’s condition, he did
not identify the specific findings or explain why he determined that the worsening would be
attributed to factors of her employment. This is especially important in light of the February 5,
2002 nonwork injury, the fact that she worked in a restricted capacity since November 30, 2006
and has not worked since September 11, 2008. Dr. Kenneson did not explain how appellant’s
condition was accelerated by conditions of her employment. For the conditions of employment
to bring about an aggravation of preexisting disease, the employment must be such as to cause
acceleration of the disease or to precipitate disability.9
In a March 8, 2010 report, Dr. Krasnick examined appellant and diagnosed chronic back
and intermittent leg pain secondary to Grade 2 spondylolisthesis; underlying pars defect,
spondylolysis and intermittent leg pain secondary to foraminal stenosis and radiculitis. He
opined that the work at the employing establishment “certainly aggravated and likely accelerated
this condition to the point that she was unable to work.” Dr. Krasnick did not adequately explain
how he concluded that the work at the employing establishment aggravated appellant’s
condition. He did not explain this conclusion in light of more than two years after the date of her
last exposure to factors of her employment. This is especially important in light of the
aforementioned factors that included a previous injury in 2002, the restricted-duty position and
not working since 2008. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10
Appellant also provided an October 25, 2010 report from Dr. Pispidikis, a chiropractor.
As defined under FECA, a physician includes a chiropractor only to the extent that his
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.11 While Dr. Pispidikis provided an
opinion with regard to the mechanism of appellant’s injury, he did not diagnose a spinal
subluxation. Since he did not diagnose spinal subluxation based on an x-ray, he was not a
physician and his opinion regarding the cause of appellant’s low back condition lacked
evidentiary weight.12
The Board further notes that OWCP referred appellant to Dr. Holda for a second opinion.
In a December 9, 2009 report, Dr. Holda examined her and diagnosed spondylolisthesis at L5-S1
and degenerative arthritis of the lumbar spine. He explained that the spondylolisthesis was
developmental and preexisted appellant’s employment. Dr. Holda initially concluded that her
work exposure as a distribution clerk beginning in 2005 temporarily aggravated the underlying
9

Id.

10

See supra note 6.

11

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988). Subluxation means an incomplete dislocation,
off-centering, misalignment, fixation or abnormal spacing of the vertebrae, which must be demonstrable on any xray film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb).
12

See Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical
opinion, in general, can only be given by a qualified physician).

6

preexisting condition of spondylolisthesis and explained that it could be aggravated by bending
and lifting. He opined that appellant reached maximum medical improvement and did not have
residuals of her work-related back condition as this would have been a temporary symptomatic
aggravation of the preexisting spondylolisthesis. The Board notes that this was speculative
opinion. The Board has held that speculative and equivocal medical opinions regarding causal
relationship have no probative value.13 On December 29, 2009 OWCP requested that Dr. Holda
clarify his opinion with regard to whether appellant’s duties as a distribution clerk affected her
preexisting spondylolisthesis and when the work-related condition had ceased. In a January 5,
2010 response, Dr. Holda explained that there were “no objective findings to support the fact that
her work activities temporarily aggravated her preexisting condition of spondylolisthesis; only
herself reported history.” He noted that it was “known that heavy lifting and repetitive bending
will aggravate this condition, however.” Dr. Holda elaborated that, “if [appellant’s] work
activities aggravated the preexisting spondylolisthesis, it would most likely cease approximately
six weeks after her exposure to bending and lifting ceased.” The Board notes that this report is
also insufficient to establish a causal relationship as it is speculative to the extent that it supports
causal relationship and he clarified that there were no objective findings to support that
appellant’s preexisting condition was caused or aggravated by work factors.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.14
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.15 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
On appeal, appellant’s attorney asserts that evidence from appellant’s physicians is
sufficient to establish the claim. However, as explained, appellant has not submitted sufficient
reasoned medical evidence to establish the claim.
As there is no medical evidence explaining how appellant’s employment duties caused or
aggravated a low back condition, she has not met her burden of proof in establishing that she
sustained a medical condition in the performance of duty causally related to factors of her
employment. Appellant may submit evidence or argument with a written request for
reconsideration within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.
13

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
14

See Joe T. Williams, 44 ECAB 518, 521 (1993).

15

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrison, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1433
Issued: December 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 15, 2008 appellant filed a timely appeal from a September 25, 2007 decision of
the Office of Workers’ Compensation Programs that found that she received an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $6,692.24 for the period March 14, 2005 to May 13, 2007; and (2) whether the Office
properly determined that she was at fault in accepting the overpayment and was therefore not
entitled to waiver.
FACTUAL HISTORY
On May 11, 2004 appellant, then a 36-year-old rural carrier, sustained employmentrelated thoracic and lumbar strains when the brakes failed on her postal vehicle. She remained
off work until May 18, 2004 when she returned and worked limited duty until June 30, 2004

when she stopped and did not return. Appellant filed CA-7 forms, claims for compensation,
claiming one dependent, her son, Robert L. Bidelman, whose date of birth was March 14, 1987.
She was placed on the periodic rolls at the augmented 3/4 rate, effective June 28, 2004, and in
August 2004 moved to Michigan.1
On July 14, 2005 appellant signed an Office Form EN1032, attesting that her son was a
dependent. The form explained the circumstances under which she would be entitled to
augmented compensation for her dependent child.2 Appellant was referred to vocational
rehabilitation in May 2006 and in December 2006 moved back to Tennessee. By letter dated
May 17, 2007, the Office noted that appellant had been reemployed as a modified mail
processing clerk effective May 14, 2007 and, as her wages met or exceeded the wages held when
injured, terminated her compensation. In a June 1, 2007 letter, the Office informed appellant
that, because her son Robert turned 18 years old on March 14, 2005 and she reported that he did
not graduate high school, an overpayment in compensation would be declared because she
continued to receive compensation at the augmented rate until she returned to work. By decision
dated July 26, 2007, the Office found that appellant’s actual wages as a mail processing clerk
fairly and reasonably represented her wage-earning capacity.3
On July 31, 2007 the Office issued a preliminary determination that appellant had
received an overpayment in compensation in the amount of $6,692.24 for the period from her
son’s eighteenth birthday on March 14, 2005 to May 13, 2007 because she continued to receive
disability compensation at the augmented 3/4 rate when there was no evidence that appellant’s
son was enrolled in school full time for that period. The Office found her at fault because she
should have reasonably been aware that her son was not an eligible dependent after turning 18
years of age. An Office overpayment worksheet contained in the record provides that during this
period appellant received compensation at the 3/4 rate totaling $56,324.54 and that compensation
at the 2/3 rate would total $49,632.30, which yielded an overpayment in compensation of
$6,692.24.
In a response dated August 30, 2007, appellant stated that she thought her son qualified
as a disabled adult because he had narcolepsy and that she would not have accepted the payments
had she known they were in error. She stated that she helped support her son and his daughter,
and submitted an overpayment questionnaire. Appellant elected a decision on the written record.
On September 25, 2007 the Office finalized the determination that appellant was at fault in the
creation of an overpayment in compensation in the amount of $6,692.24 because she should have
known she was not entitled to receive wage-loss compensation at the augmented 3/4 rate. It
requested that she forward payment for the full amount of the overpayment.

1

The record indicates that under file number xxxxxx914 appellant had an accepted tenosynovitis of the right
wrist.
2

Appellant also submitted a EN1032 form dated August 3, 2006 in which she claimed no dependents.

3

Appellant did not file an appeal of this decision.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.5 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.6
The basic rate of compensation paid under the Act is 66 2/3 percent of the injured
employee’s monthly pay. Where the employee has one or more dependents as defined in the
Act, the employee is entitled to have his or her basic compensation augmented at the rate of 8 1/3
percent for a total of 75 percent of monthly pay.7 Section 8110(a)(3) of the Act provides that a
child is considered a dependent if he or she is under 18 years of age, is over 18 but is unmarried
and incapable of self-support because of a physical or mental disability or is an unmarried
student, as defined under section 8101(17).8 If a claimant receives augmented compensation
during a period where he or she has no eligible dependents, the difference between the
compensation to which he or she was entitled at the 2/3 compensation rate and the augmented
compensation received at the 3/4 rate constitutes an overpayment of compensation.9
ANALYSIS -- ISSUE 1
Appellant was placed on the periodic rolls in June 2004 and submitted an Office EN1032
form on July 14, 2005 in which she claimed her son Robert as a dependent. She had only one
possible dependent, her son Robert, who became 18 years old on March 14, 2005. While
appellant contended that Robert was disabled due to narcolepsy, she submitted no evidence to
support that he was disabled from that condition on or after his 18th birthday. The only medical
report she submitted was a report dated June 27, 2002, when Robert was 15 years of age, in
which Dr. Lawrence T. Ch’ien, a sleep medicine specialist, diagnosed narcolepsy and advised
that he should not be punished at school for his narcolepsy. Office procedures require that
medical evidence in support of disability be current and describe his past and current condition.10
Appellant submitted no such evidence. Robert could also qualify as a dependent if he was an
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8102(a).

6

5 U.S.C. § 8129(a).

7

5 U.S.C. § 8110(b).

8

5 U.S.C. § 8110(a)(3). 5 U.S.C. § 8101(17) defines a student as an individual under 23 years of age who has not
completed four years of education beyond the high school level and is currently pursuing a full-time course of study
at a qualifying college, university or training program.
9

5 U.S.C. § 8110(a)(3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Early Management of Disability Claims, Chapter
2.811.10.5(c)(3) (February 2002).

3

unmarried student attending an approved full-time course of study, had not completed four years
of post high school education, and had not completed the academic semester in which he became
23 years old.11 There is evidence of record, including a lease agreement indicating that Robert is
married.12 Furthermore, he did not complete high school and therefore did not continue his
education until he reached 23 years of age. The fact that appellant served as a guarantor on a
lease and carried Robert on her health insurance is insufficient to establish that Robert qualified
as a dependent.13
The Board therefore finds that appellant should only have received compensation at the
basic 2/3 rate after her son Robert reached the age of 18. The Office’s failure to reduce the
compensation from the augmented rate to the basic rate resulted in an overpayment to appellant.
The record supports that appellant continued to receive compensation at the augmented 3/4 rate
until May 13, 2007, although she had no qualifying dependent. For this period she received
augmented compensation at the 3/4 rate totaling $56,324.54, when she should have received
compensation at the 2/3 rate or $49,632.30. Thus the $6,692.24 difference constitutes an
overpayment in compensation,14 and the Board finds that the Office correctly determined the fact
and amount of overpaid compensation in this case.15
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”16
Section 10.433(a) of the Office’s regulation provides that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) Failed to provide information which he or she knew
11

Id.

12

The undated lease agreement states that the lessees are Robert and Leslie Bidelman and that Sumer Bidelman
would also reside at the rental unit.
13

Supra note 9.

14

5 U.S.C. §§ 8101(17), 8110.

15

See Ralph P. Beachum, Sr., supra note 9.

16

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

4

or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”17
Section 10.433 also provides that, in determining whether a claimant is at fault, the
Office will consider all pertinent circumstances.18 In applying the tests to determine fault, the
Office applies a “reasonable person” test.19 Whether an individual was at fault in creating an
overpayment depends on the circumstances of the overpayment. The degree of care expected
may vary with the complexity of those circumstances, and the individual’s capacity to realize
that he or she is being overpaid.20
ANALYSIS -- ISSUE 2
The Office found appellant at fault in the creation of the overpayment and therefore not
entitled to waiver based on the third criterion above, that she should have reasonably known,
based on her review and signature on Office EN1032 forms, that she was not entitled to
compensation at the augmented rate after March 14, 2005. The record includes 1032 forms
signed by appellant on July 14, 2005 and August 3, 2006. Under the certification portion of
these forms, appellant certified that she understood “that I must immediately report to [the
Office] ... any change in the status of claimed dependents….” By signing the forms, she is
deemed to have acknowledged her duty to report any change in the status of her claimed
dependents. Appellant continued to receive compensation at the augmented rate until May 13,
2007 and did not provide documentation to show that her son was incapable of self-support or
that he continued his education after his 18th birthday. Even if an overpayment resulted from
negligence by the Office, this does not excuse the employee from accepting payment that the
employee knew or should have been expected to know he or she was not entitled.21 The Board
thus finds appellant at fault in the creation of the overpayment. As appellant was at fault, waiver
of recovery of the overpayment is precluded.22
CONCLUSION
The Board finds that appellant received an overpayment in compensation in the amount
of $6,692.24 for the period March 14, 2005 to May 13, 2007, and that the Office properly

17

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

18

20 C.F.R. § 10.433; L.C., 59 ECAB ____ (Docket No. 08-209, issued June 16, 2008).

19

L.D., 59 ECAB ____ (Docket No. 08-678, issued August 7, 2008).

20

J.S., 58 ECAB ____ (Docket No. 06-2113, issued May 10, 2007).

21

Danny E. Haley, 56 ECAB 393 (2005).

22

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB
___ (Docket No. 07-1844, issued December 11, 2007). With respect to the recovery of an overpayment, the Board’s
jurisdiction is limited to those cases where the Office seeks recovery from continuing compensation benefits under
the Act. L.D., supra note 19.

5

determined that she was at fault in accepting the overpayment and was therefore not entitled to
waiver.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 25, 2007 be affirmed.
Issued: December 11, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., widow of W.H., Appellant
and
DEPARTMENT OF THE NAVY, ALAMEDA
NAVAL AIR STATION, Alameda, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Lauren Shine, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0669
Issued: October 9, 2019

Case Submitted on the Record

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

JURISDICTION
On February 4, 2019 appellant, through counsel, filed a timely appeal from a November 26,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The last
merit decision in this case was an August 3, 2017 Board decision. 2 As there was no merit decision
issued by OWCP within 180 days to the filing of this appeal, pursuant to the Federal Employees ’

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
The decision of the Board became final after 30 days of issuance, and is not subject to further review. 20 C.F.R.
§ 501.6(d).

Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over
the merits of this claim.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On December 11, 1979 the employee, then a 39-year-old sheet metal worker, sustained
injuries in a work-related fall. He experienced pain in his lower back and right hip as he was
climbing into the window of an aircraft and fell, landing on his right side. The employee stopped
work on the date of injury and did not return. OWCP accepted the claim for cervical sprain, lumbar
sprain, sacroiliac ligament sprain, lumbar radiculopathy, cervical intervertebral disc degeneration,
lumbar intervertebral disc displacement without myelopathy, prolonged depressive reaction, and
pain disorder related to psychological factors. The employee remained on the periodic
compensation rolls until his death at age 71 on May 23, 2012.
On April 4, 2015 appellant, the employee’s widow, filed a claim for compensation by
surviving spouse and/or children (Form CA-5). She submitted the employee’s death certificate
which identified respiratory failure as the immediate cause of death. The underlying causes of
death include cervical spinal cord compression and end-stage renal disease.
By decision dated August 3, 2017, the Board affirmed an August 18, 2016 OWCP hearing
decision, which found that appellant had not met her burden of proof to establish her claim for
survivor benefits. The Board determined that she failed to show the employee’s accepted
employment-related conditions either caused or contributed to his death due to respiratory failure.
The Board noted that, while the death certificate identified spinal cord compression as an
underlying cause of death, the physicians of record failed to provide any medical rationale as to
how the spinal cord compression was work related or how an accepted employment-related
condition caused or contributed to the employee’s death. Additionally, a district medical adviser
(DMA) had reviewed the medical evidence and opined that there was no causal relationship
between the employee’s death and his employment-related conditions. The Board also noted that
there was no disagreement between the autopsy findings and the DMA’s opinion that the
employee’s cervical cord compression was a consequence of hemodialysis. Therefore, the Board
3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
4

Docket No. 17-0729 (issued August 3, 2017).

2

concluded that appellant had not established that the accepted employment-related conditions were
a contributing cause of the employee’s death.
On March 5, 2018 appellant, through counsel requested for reconsideration. In a
January 25, 2018 letter, counsel argued that the previously submitted medical evidence of record,
as well as an attached new report, from Dr. J. Eugene Lammers, Board-certified in internal and
geriatric medicine, demonstrated causal relationship between the employee’s death and his
employment factors. No additional evidence was submitted with the request for reconsideration.
By decision dated March 15, 2018, OWCP denied appellant’s request for reconsideration.
It found that she did not raise a relevant legal argument not previously considered, and no new and
relevant pertinent evidence had been received.
On May 29, 2018 appellant, through counsel, again requested reconsideration. Counsel
reviewed medical evidence previously of record, and also asserted that a medical report from
Dr. Lammers, was attached as Exhibit A. She argued that this new report presented medical
rationale establishing that the employee’s cervical disease contributed to his ultimate cause of
death. Counsel cited excerpts from Dr. Lammers’ report and indicated that the report met the
Board’s legal standard as ‘“there did not have to be a significant contribution of employment
factors to establish causal relationship,’ only that ‘the employment contributed to the employee’s
death.’”
In support of the reconsideration request, OWCP received Dr. Lammers’ resume and
credentials. No further evidence was received.
By decision dated November 26, 2018, OWCP denied appellant’s request for
reconsideration, finding that the arguments raised were cumulative and repetitive and that she had
failed to submit new and relevant pertinent evidence.5 The decisions differed in that the first
decision referenced August 10, 1992 physical therapy notes, previously received by OWCP on
August 24, 1992.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority. 7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 8
5

This decision is the “corrected copy” of a decision issued earlier on the same date.

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.607.

8

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

3

Aright to reconsideration within one year also accompanies any subsequent merit decision on the
issues.9
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP. 10 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits. 11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of her request for reconsideration counsel asserted that under the Board’s case
precedent “‘there did not have to be a significant contribution of employment factors to establish
causal relationship,’ only that ‘the employment contributed to the employee’s death.’” The Board
has held that the submission of evidence or argument which repeats or duplicates evidence or
argument already in the case record does not constitute a basis for reopening a case. 12 Counsel’s
arguments on reconsideration regarding the probative value of medical evidence are duplicative of
arguments previously made and considered by both OWCP and the Board.13 As such, appellant is
not entitled to a review of the merits based on the first and second above-noted requirements under
20 C.F.R. § 10.606(b)(3).
Furthermore, appellant submitted no new relevant evidence in support of her request for
reconsideration.14 While she indicated that Dr. Lammers’ report was submitted as Exhibit A, and
established appellant’s claim, the record is devoid of any such report. Only Dr. Lammers’ resume
and credentials were submitted to the record. The submission of this evidence does not require
reopening of his claim for review of the merits of the claim because this evidence is irrelevant to

9

F.N., Docket No. 18-1543 (issued March 6, 2019); Robert F. Stone, 57 ECAB 292 (2005).

10
20 C.F.R. § 10.606(b)(3); see T.M., Docket No. 19-0535 (issued July 25, 2019); see J.B., Docket No. 18-1531
(issued April 11, 2019).
11

Id. at § 10.608.

12

20 C.F.R. § 10.606(b)(3); see T.M., Docket No. 19-0535 (issued July 25, 2019); J.B., Docket No. 18-1531 (issued
April 11, 2019).
13

The Board notes that it is unnecessary for it to consider the evidence appellant submitted prior to the issuance of
OWCP’s August 18, 2016 decision because the Board considered that evidence in its August 3, 2017 decision.
Findings made in prior Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA. See J.D., Docket No. 18-1765 (issued June 11, 2019); J.L., Docket No. 17-1460 (issued December 21, 2018).
14

See T.M., supra note 12.

4

the underlying issue of causal relationship.15 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3). 16
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal counsel asserts that OWCP’s delay in ruling on the May 29, 2018 request for
reconsideration cost appellant her appeal rights. As noted, the last merit decision of record was
issued by the Board on August 3, 2017, the request for reconsideration at issue was made almost
10 months after the last merit decision. Although OWCP issued its November 26, 2018 nonmerit
decision more than 90 days after counsel requested reconsideration, under the circumstances the
delay did not jeopardize appellant’s right to further review of the merits of the case by the Board,
and did not impact appellant’s ability to file a timely request for reconsideration of the merits of
her case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

15

L.E., Docket No. 19-0470 (issued August 12, 2019).

16

H.H., Docket No. 18-1660 (issued March 14, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6