United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redding, CA, Employer
__________________________________________

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Appearances:
Debbie Sears, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1725
Issued: May 10, 2011

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 June 15, 2010 appellant filed a timely appeal from a February 12, 2010 merit decision
of the Office of Workers’ Compensation Programs and a June 1, 2010 decision that denied her
request for reconsideration. Pursuant to the Federal Employees’ Compensation Act1 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 the Office properly reduced appellant’s compensation to zero
effective December 12, 2008 in accordance with section 8113(b) of the Act;2 and (2) whether the
Office properly refused to reopen appellant’s claim for further review of the merits pursuant to
section 8128(a) of the Act.

1

5 U.S.C. § 8101 et seq.

2

Id. at §§ 8101-8193.

On appeal, appellant’s representative asserts that the Office erred in not retroactively
restoring appellant’s compensation back to the date of her written notification, that she should
have been reimbursed for her out-of-pocket expenses and that the Office should have conducted
a merit review on June 1, 2010.
FACTUAL HISTORY
On August 23, 2004 appellant, then a 44-year-old city letter carrier, sustained injuries to
her cervical spine when her postal vehicle was rear-ended.3 She returned to modified duty for
four hours a day on October 26, 2004 and missed intermittent periods thereafter. On October 3,
2008 appellant began an eight-hour workday. She stopped work on October 5, 2007 and has not
returned. Appellant was placed on the periodic compensation rolls.
In April 2008, the Office referred appellant to Dr. Leo Van Dolson, a Board-certified
orthopedic surgeon, for a second opinion evaluation as to her work-related disability and, if she
could not work her physical limitations and potential for vocational rehabilitation.
In a May 13, 2008 report, Dr. Van Dolson reviewed the statement of accepted facts,
including all accepted conditions and medical record. He noted that a right shoulder claim was
under development by the Office. Dr. Van Dolson described appellant’s complaints and
provided physical examination findings. He advised that the medical records showed a diagnosis
of herniated cervical disc but that this was not shown on magnetic resonance imaging (MRI)
scan and that her multilevel foraminal stenosis was related to underlying and preexisting arthritis,
accepted as cumulative trauma. Dr. Van Dolson stated that appellant’s pain was a residual of the
accepted conditions and, because of the chronicity of her pain complaints, it was unlikely that
these would resolve. He concluded that she had very limited work ability because of her
underlying orthopedic problems and that she could not return to work until she had definitive
analysis and treatment for the conditions. Dr. Van Dolson recommended a functional capacity
evaluation (FCE) “at some point” and, perhaps, a surveillance video.
On September 23, 2008 appellant was referred to Layne Guinnane, a rehabilitation
counselor, for vocational rehabilitation. By letter dated September 29, 2008, Ms. Guinnane
informed appellant that an FCE had been scheduled. In a September 30, 2008 report,
Dr. J. David Schillen, a Board-certified orthopedic surgeon, noted appellant’s complaint of right
shoulder and neck pain. He provided examination findings and diagnosed degenerative joint
disease of the glenohumeral joint, subacromial impingement syndrome and bicipital tendinitis of
the right shoulder. Dr. Schillen advised that shoulder surgery was indicated but that he was

3

The 2004 injury, adjudicated by the Office under file number xxxxxx831, was accepted for cervical
strain/sprain, aggravation of degenerative disc disease and cervicalgia. The Office also accepted cervical
spondylosis at C4-7, aggravation of cervical degenerative disc disease and cervical radiculopathy, adjudicated under
file number xxxxxx601; bilateral shoulder strains, adjudicated under file number xxxxxx600; bilateral carpal tunnel
syndrome, adjudicated under file number xxxxxx602; and right shoulder strain and aggravation of cervical
degenerative disc disease, adjudicated under file number xxxxxx142. All claims were doubled, with file number
xxxxxx601 becoming the master files. By order dated April 29, 2008, Docket No. 08-97, the Board dismissed
appellant’s appeal under file number xxxxxx831 because there was no Office decision over which the Board had
jurisdiction.

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concerned about appellant’s neck condition and wanted her to see Dr. D. Brad Jones, a Boardcertified orthopedic surgeon, for further evaluation of her neck.
The FCE was initially scheduled for October 14, 2008 at Maxim Physical Therapy, but
because authorization had not been received, the initial appointment was cancelled. The FCE
was rescheduled for October 21, 2008. Appellant did not attend the October 21, 2008
evaluation. Ms. Guinnane reported that appellant was told by her attending physician not to
attend the FCE pending an MRI scan study.
By letter dated October 29, 2008, the Office proposed to suspend appellant’s monetary
compensation on the grounds that she failed to cooperate in rehabilitation efforts when she did
not attend the scheduled October 21, 2008 FCE. Appellant was notified of the penalty
provisions of section 8113(b) of the Act and afforded 30 days to respond. On October 30, 2008
she submitted an October 20, 2008 report from Dr. Jones, who noted her complaint of right neck,
arm and shoulder pain. Dr. Jones provided examination findings, diagnosed cervical spinal
stenosis, neck pain, cervicalgia, cervical radiculopathy or brachial neuritis and cervical
spondylosis with myelopathy. He concluded, “I would not recommend the functional capacity
exam[ination] until we obtain the [cervical spine] MRI [scan] and clear this.”
On November 4, 2008 appellant’s attorney advised that appellant did not attend the
scheduled FCE on the advice of Dr. Jones. He stated that, if it was determined by her physicians
that the FCE was not harmful, she would participate. Appellant underwent a cervical MRI scan
on November 6, 2008.4 In a November 12, 2008 attending physician’s report, Dr. Jay Roitman,
an attending osteopath, advised that, per Dr. Jones, appellant could not do a FCE until an MRI
scan was obtained and Dr. Jones cleared her because she could possibly worsen her condition
without clearance.5
By decision dated December 10, 2008, the Office finalized the reduction in
compensation, effective December 12, 2008, under section 8113(b) of the Act and section 10.519
of the implementing regulations, on the grounds that appellant did not fully cooperate with the
FCE scheduled for October 21, 2008.
By report dated December 8, 2008, received by the Office on December 12, 2008,
Dr. Jones reviewed the cervical MRI scan. Because appellant had exhausted all reasonable
attempts at conservative management of her spinal disease, she would benefit from surgery and
he recommended surgery at C4-5. By letter dated December 17, 2008, appellant’s representative
contended that, as appellant did not attend the FCE on the advice of her surgeon, her wage-loss
compensation should be restored. She further noted that appellant would attend an FCE
scheduled on January 22, 2009. On December 18, 2008 an Office medical adviser advised that
4

A November 6, 2008 MRI scan of the cervical spine demonstrated a disc/osteophyte complex at C4-5 that
compressed the spinal cord, moderately on the left and mildly on the right; a disc/osteophyte complex at C5-6 that
created a very slight impression on the anterior surface of the left side of the spinal cord; a duplex cystic lesion in
the lateral aspect of the right C5-6 neural foramen; a cystic-appearing lesion in the lateral aspect of the right C7-T1
neural foramen; and neural foraminal stenosis, most severe bilaterally at C4-5 and on the left at C6-7.
5

Dr. Roitman submitted numerous reports dating from August 23, 2004, in which he provided physical
examination findings, made numerous diagnoses and advised that appellant was totally disabled.

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the recommended cervical surgery appeared reasonable and on December 22, 2008 surgery was
authorized.6 In a January 14, 2009 report, Dr. Roitman noted the November 6, 2008 MRI scan
findings and the recommendation of Dr. Jones. Based on appellant’s complex medical
conditions and the extensive nature of her disease, he was against her participating in an FCE
because it could unnecessarily aggravate her cervical and shoulder conditions and cause spinal
cord damage.
Appellant attended an FCE on January 22, 2009 at Maxim Physical Therapy. The
physical therapist who administered the test advised that she was marginally functional at a
sedentary physical demand level. Appellant was returned to the periodic rolls, effective
January 22, 2009. On April 23, 2009 the Office authorized payment for the January 22, 2009
FCE. Appellant had another FCE on May 5, 2009 and the occupational therapist who
administered the evaluation reported that her effort was judged to be not maximal due to
diminished sincerity of effort through the test and that her observed abilities placed her within a
part-time sedentary work level with a 10-pound lifting restriction.
On July 14, 2009 appellant, through her representative, requested reconsideration,
arguing that her compensation should be restored as of December 12, 2008 and that she be
reimbursed for all out of pocket expenses for the January 22, 2009 FCE. She submitted
additional correspondence, medical evidence previously of record and reports dated April 13 to
August 20, 2009, in which Dr. Roitman discussed appellant’s condition and advised that she was
severely disabled. In a May 11, 2009 report, Dr. Eric Klineberg, a Board-certified orthopedic
surgeon, provided examination findings and advised that he would not recommend surgery until
appellant stopped smoking.
By decision dated October 16, 2009, the Office denied modification of the December 10,
2008 decision. It did not address whether appellant was entitled to reimbursement of expenses
incurred in the January 21, 2009 FCE.
On November 16, 2009 appellant again requested reconsideration, reiterating her
argument that she was entitled to compensation from December 11, 2008 through January 21,
2009 and for expenses incurred for the January 21, 2009 FCE. She submitted copies of
correspondence, Office procedures and a receipt from Maxim Physical Therapy showing a
$200.00 payment.7
In a merit decision dated February 12, 2010, the Office denied modification of the prior
decisions regarding suspension of wage-loss compensation for the period December 12, 2008 to
January 22, 2009. It advised that issues regarding reimbursement should be addressed by the
medical authorization unit.
On February 25, 2010 appellant, through her representative, requested reconsideration,
reiterating her arguments that the December 10, 2008 decision should be reversed and that her
6

There is no indication in the record that the surgery was performed.

7

The receipt shows that the payment was made on the 22nd day in the year 2009. The month of the payment is
not legible.

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out-of-pocket expenses should be reimbursed, noting that $43.23 had been reimbursed, leaving a
$157.77 payment. She submitted reports dated January 22 and March 3, 2010, in which
Dr. Bettina von Moltke, a clinical psychologist, described appellant’s medical and work history
and her complaints of sleeplessness and cervical and shoulder pain. Dr. von Moltke noted
limitations in activities of daily living and appellant’s report of payroll errors by the employing
establishment. She diagnosed major depression. In an April 14, 2010 report, Dr. Roitman
advised that appellant continued to be totally disabled. Appellant’s representative also stated that
she was submitting correspondence and remittance vouchers, but these are not found in the case
record.
In a June 1, 2010 decision, the Office denied appellant’s reconsideration request on the
grounds that her arguments were repetitious in nature and that she submitted no new evidence to
support that she could not attend the FCE scheduled for October 21, 2008. It also advised that
the process for claiming reimbursement was explained in its February 12, 2010 decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8104(a) of the Act provides that the Office may direct a permanently disabled
employee to undergo vocational rehabilitation.8 Section 8113(b) provides that, if an individual
without good cause fails to apply for and undergo vocational rehabilitation when so directed
under 8104, the Secretary, on review under section 8128 and after finding that in the absence of
the failure the wage-earning capacity of the individual would probably have substantially
increased, may reduce prospectively the monetary compensation of the individual in accordance
with what would probably have been his or her wage-earning capacity in the absence of the
failure, until the individual in good faith complies with the direction of the Secretary.9
Section 10.519 of Office regulations state that, where a suitable job has not been
identified because the failure or refusal of the employee occurred in the early but necessary
stages of a vocational rehabilitation effort (that is, meetings with the Office nurse, interviews,
testing, counseling, FCE and work evaluations), the Office cannot determine what would have
been the employee’s wage-earning capacity. Under these circumstances, in the absence of
evidence to the contrary, the Office will assume that the vocational rehabilitation effort would
have resulted in a return to work with no loss of wage-earning capacity and the Office will
reduce the employee’s monetary compensation to zero. This reduction will remain in effect until
such time as the employee acts in good faith to comply with the directions of the Office.10
Office procedures provide that specific instances of noncooperation include a failure to
appear for the initial interview, counseling sessions, a FEC, other interviews conducted by the
rehabilitation counselor, vocational testing sessions and work evaluations, as well as lack of

8

5 U.S.C. § 8104(a); see J.E., 59 ECAB 606 (2008).

9

Id. at § 8113(b); see Freta Branham, 57 ECAB 333 (2006).

10

20 C.F.R. § 10.519; see Marilou Carmichael, 56 ECAB 451 (2005).

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response or inappropriate response to directions in a testing session after several attempts at
instruction.11
ANALYSIS -- ISSUE 1
The Board finds that the Office properly reduced appellant’s monetary compensation to
zero because she failed, without good cause, to cooperate with vocational rehabilitation efforts.
The record establishes that appellant was referred for an FCE on October 21, 2008 but did not
attend. The reason offered for her failure was that her attending orthopedic surgeon, Dr. Jones,
advised her not to attend. Dr. Van Dolson, the Office referral physician, recommended that
appellant have a FCE to assess her work capability. While Dr. Jones advised on October 20,
2008 that he would not recommend such evaluate until an MRI scan was obtained, he did not
provide a rationalized opinion as to why appellant could not undertake the FCE. He did not
address any specific risks involved that would prevent her from participating in the study.
Dr. Roitman advised on November 12, 2008 and January 14, 2009 that an FCE could possibly
aggravate appellant’s complex medical conditions and cause spinal cord damage without MRI
scan or clearance by Dr. Jones. However, the possibility of injury does not form a basis for
compensation.12 The Board finds that appellant did not provide good cause for her refusal to
submit to an FCE on October 21, 2008. Pursuant to section 8113(b), appellant’s compensation
was properly suspended effective December 12, 2008.
The Board, however, finds that appellant is entitled to wage-loss compensation beginning
December 17, 2008, the date her representative advised that she could attend an FCE scheduled
for January 22, 2009. Appellant attended the January 22, 2009 FCE and her monetary
compensation was restored effective that day. Office procedures provide that the effective date
of reinstatement of the previous rate of compensation should be the date the claimant indicates in
writing his or her intent to comply, as long as actual compliance is confirmed.13 The record
supports that appellant complied with this requirement by the December 17, 2008 written
correspondence and her attendance at the January 22, 2009 evaluate. Her compensation should
have been reinstated as of December 17, 2008.
Regarding appellant’s assertion that she should have been reimbursed for her out-ofpocket expenses incurred for the January 22, 2009 FCE, other than the report of the test itself, the
record contains scant information regarding the evaluation. In a February 12, 2010 decision, the
Office advised her that the issues regarding reimbursement should be addressed by the medical
authorization unit. Although appellant stated that she submitted correspondence and remittance
vouchers with her February 25, 2010 reconsideration request, these are not found in the record
on appeal. The only evidence is a copy of a receipt for a $200.00 payment to Maxim Physical
Therapy. The Board’s jurisdiction extends only to the review of final decisions by the Office.14
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(a) (November 1996); see Sam S. Wright, 56 ECAB 358 (2005).
12

C.S., Docket No. 09-1597 (issued February 4, 2010).

13

Supra note 11 at Chapter 2.813.11(b)(3) (November 1996).

14

20 C.F.R. § 501.2(c); E.L., 59 ECAB 405 (2008).

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The record in this case does not contain a final decision of the Office denying reimbursement for
expenses incurred for the January 22, 2009 FCE.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.15 Section 10.608(a) of the Code of Federal Regulations provide that a
timely request for reconsideration may be granted if the Office determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).16 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.17 Section 10.608(b) provides that when a request for
reconsideration is timely but fails to meet at least one of these three requirements, the Office will
deny the application for reconsideration without reopening the case for a review on the merits.18
ANALYSIS -- ISSUE 2
On February 25, 2010 appellant requested reconsideration and submitted reports from
Dr. von Moltke dated January 22 and March 3, 2010. Dr. von Moltke reiterated previous
arguments made in July 14 and November 16, 2009 reconsideration requests, i.e., that appellant
awarded wage-loss compensation for the period December 12, 2008 through January 21, 2009
and that her out-of-pocket expenses for the January 22, 2009 FCE should be reimbursed. These
arguments had been reviewed by the Office in merit decisions dated October 16, 2009 and
February 12, 2010 and the Board modified appellant’s entitlement to compensation, as addressed
above in Issue 1. Appellant therefore did not show that the Office erroneously applied or
interpreted a specific point of law and argument, such as this, that repeats or duplicates evidence
previously of record has no evidentiary value and does not constitute a basis for reopening a
case.19 Consequently, she was not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(2).20
With respect to the third above-noted requirement under section 10.606(b)(2),
Dr. von Moltke’s reports are irrelevant as she did not address whether appellant had good cause
for not attending the FCE scheduled for October 22, 2008. Likewise, Dr. Roitman did not
address the scheduled FCE in his April 14, 2010 report. While appellant’s representative stated
15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.608(a).

17

Id. at § 10.608(b)(1) and (2).

18

Id. at § 10.608(b).

19

M.E., 58 ECAB 694 (2007).

20

20 C.F.R. § 10.606(b)(2).

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that she was submitting additional correspondence and remittance vouchers, these are not found
in the case record. Appellant thus did not submit relevant and pertinent new evidence such that a
merit review of the claim was warranted.
As appellant did not show that the Office erred in applying a point of law, advance a
relevant legal argument not previously considered or submit relevant and pertinent new evidence
not previously considered by the Office, the Office properly denied her reconsideration request.21
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation to zero
effective December 12, 2008 in accordance with section 8113(b) of the Act but finds that she is
entitled to monetary compensation beginning December 17, 2008. The Board further finds that
the Office properly refused to reopen appellant’s claim for further review of the merits pursuant
to section 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2010 decision of the Office of Workers’
Compensation Programs is affirmed. The February 12, 2010 decision is affirmed as modified.
Issued: May 10, 2011
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

21

Supra note 17.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Covington, VA, Employer
__________________________________________

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

Docket No. 11-767
Issued: September 30, 2011

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 February 8, 2011 appellant filed a timely appeal from a January 21, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed between the last merit decision dated
November 6, 2009 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s case. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the January 21, 2011 nonmerit
decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 2, 2005 appellant, then a 51-year-old rural letter carrier, filed a traumatic
injury claim alleging that on July 28, 2005 he sustained injuries due to a motor vehicle accident.
OWCP accepted the claim for right elbow contusion, right elbow abrasion, left chest wall
contusion scalp abrasion and cervical strain.2
On March 24, 2007 appellant filed a claim for a schedule award.
In a May 30, 2008 report, Dr. William Andrews, a second opinion Board-certified
orthopedic surgeon, reviewed the statement of accepted facts and medical evidence and
performed a physical examination. Based on his findings, he concluded that appellant had 10
percent impairment of the right upper extremity using the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). This was
based on appellant’s mild-to-moderate limitation of motion of his right arm.
On February 23, 2009 Dr. Lawrence A. Manning, Jr., OWCP’s medical adviser, reviewed
Dr. Andrews’ report and concluded that appellant had five percent right upper extremity
impairment based on loss of strength using Table 16-35, page 510 of the A.M.A., Guides (5th ed.
2001).
In an August 12, 2009 report, Dr. Manning, using the sixth edition of the A.M.A.,
Guides, (6th ed. 2009) concluded that appellant had no ratable permanent impairment for his
accepted conditions using Dr. Andrews’ May 30, 2008 report.
By decision dated November 6, 2009, OWCP denied appellant’s request for a schedule
award.
On April 16, 2010 appellant requested reconsideration and contended that it was unfair of
OWCP to deny his claim using the sixth edition of the A.M.A., Guides instead of the fifth
edition. In a June 10, 2010 report, Dr. Ronald S. Goings, a treating Board-certified family
practitioner, noted that appellant had been injured in an automobile accident at work. A physical
examination revealed good shoulder range of motion and good arm muscle strength. Dr. Goings
noted that appellant continued to have symptoms of his employment injury.
By decision dated July 22, 2010, OWCP denied appellant’s request for reconsideration,
finding that the evidence and argument presented were insufficient to warrant further merit
review.
On January 10, 2011 appellant requested reconsideration and noted that he was trying to
find a physician who would perform an evaluation based on the sixth edition of the A.M.A.,
Guides.
By decision dated January 21, 2011, OWCP denied reconsideration.
2

On June 13, 2008 OWCP issued a loss of wage-earning capacity which found that appellant had no loss wageearning capacity in his modified carrier position.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3 its
regulations provide 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) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
OWCP issued a decision on November 6, 2009 denying appellant’s claim for a schedule
award based on Dr. Manning’s August 12, 2009 report which found no evidence of a ratable
permanent impairment based on criteria set forth by the sixth edition of the A.M.A., Guides. The
issue presented on appeal is whether appellant’s January 10, 2011 reconsideration request met
any of the conditions of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for further
review of the merits.
In his request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. He did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. He submitted no new medical evidence in support of his request. The underlying
issue in this case was whether appellant sustained any permanent impairment to his right arm
based on the criteria set forth in the sixth edition of the A.M.A., Guides. That is a medical issue
which must be addressed by relevant medical evidence.7 Appellant did not submit any medical
evidence within his reconsideration request.
The Board 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 new evidence not previously considered. The June 10, 2010 report of
Dr. Goings although new, was not pertinent or relevant to the extent and degree of any
permanent impairment appellant may have sustained resulting from the effects of the July 28,
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(2). See Susan A. Filkins, 57 ECAB 630 (2006); J.M., Docket No. 09-218 (issued July 24,
2009).
5
6

Id. at § 10.607(a). See Robert G. Burns, 57 ECAB 657 (2006); S.J., Docket No. 08-2048 (issued July 9, 2009).

Id. at § 10.608(b).
March 16, 2009).
7

See Tina M. Parrelli-Ball, 57 ECAB 598 (2006); Y.S., Docket No. 08-440 (issued

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

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2005 employment injury. Dr. Goings only noted that appellant had symptoms of the
employment injury. Thus, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 21, 2011 is affirmed.
Issued: September 30, 2011
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

4


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

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Docket No. 18-0649
Issued: August 9, 2019

Case Submitted on the Record

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

On February 5, 2018 appellant filed a timely appeal from a December 27, 2017 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-0649.
On May 5, 2017 appellant, then a 45-year-old modified letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed pain in her back, right leg and thigh, and
right shoulder due to factors of her federal employment including casing and delivering mail and
frequent bending. She noted that she first became aware of her claimed condition on March 3,
2016 and related it to her federal employment on March 10, 2016. Appellant stopped work on
April 4, 2016. On the reverse side of the claim form the employing establishment indicated that
appellant was off work due to a medical condition under a separate claim, OWCP File No.
xxxxxx332, and had not yet returned.
In an attached statement, appellant related that she had previously sustained a low back
injury at work on November 27, 2012, OWCP File No. xxxxxx549, and reinjured her back again
on December 13, 2013, OWCP File No. xxxxxx332. She indicated that she stopped work due to
these injuries and returned to work on March 20, 2014 in a part-time, limited-duty capacity.
Appellant explained that her duties consisted of casing and delivering mail with frequent bending.
She noted that, beginning March 3, 2016, she experienced back pain and stiffness, which

eventually led to pain radiating down both legs, on the right greater than the left. Appellant also
reported right shoulder problems.1 OWCP assigned her current claim OWCP File No. xxxxxx478.
By decision dated August 25, 2017, OWCP denied appellant’s occupational disease claim.
It accepted appellant’s employment duties, but denied her claim because the medical evidence
submitted was insufficient to establish a diagnosed medical condition causally related to the
accepted factors of her federal employment. OWCP noted in its decision that she may have
sustained a worsening of her 2012 and 2013 employment injuries which indicated a recurrence of
a previous condition, not a new injury.
On October 17, 2017 appellant requested reconsideration. In an attached statement, she
noted that OWCP’s August 25, 2017 decision informed her of a potential recurrence claim and she
explained that, prior to completing the current Form CA-2, she had filed a notice of recurrence
(Form CA-2a) of disability under OWCP File No. xxxxxx322, which had been denied by OWCP
by decision dated February 15, 2017.
By decision dated December 27, 2017, OWCP denied modification of the August 25, 2017
decision. It found that the medical evidence submitted was insufficient to establish a medical
condition causally related to the accepted factors of appellant’s federal employment.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.2 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.3
Appellant had three prior claims involving various body parts, including her back, lower
extremities, right hip, and right upper extremity. Those prior claims were assigned OWCP File
Nos. xxxxxx813, xxxxxx549, and xxxxxx332. The medical evidence of record in the present case,
OWCP File No. xxxxxx478, does not include medical records dated prior to March 5, 2016. As
such, the Board is unable to review the medical evidence in any of the prior claims relating to
appellant’s accepted conditions, which include the same parts of her body for which she alleges
injury in the present claim.
For a full and fair adjudication, the case must be returned to OWCP to combine the current
case record with OWCP File Nos. xxxxxx813, xxxxxx549, and xxxxxx332.4 Following this and

1
Appellant noted that she had previously injured her right hip and right upper extremity at work on February 21,
2007, which had been accepted under OWCP File No. xxxxxx813.
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3

Id.; D.L., Docket No. 17-1588 (issued January 28, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

4

Id.

2

other such further development as it deems necessary, OWCP shall issue a de novo decision.
Accordingly,
IT IS HEREBY ORDERED THAT the December 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: August 9, 2019
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.H., Appellant
and
ARMED FORCES RETIREMENT HOME,
GULFPORT ARMED FORCES RETIREMENT
HOME, Gulfport, MI, Employer
__________________________________________

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

Docket No. 14-2050
Issued: January 27, 2015

Case Submitted on the Record

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

JURISDICTION
On September 22, 2014 appellant filed a timely appeal of the March 26, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed since the most recent merit decision dated January 31, 2014 and the filing of this
appeal on September 22, 2014 and pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
the claim.2

1
2

5 U.S.C. §§ 8101-8193.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
501.3(e)-(f). One hundred and eighty days from March 26, 2014, the date of OWCP’s last decision was
September 22, 2014. Since using September 29, 2014, the date the appeal was received by the Clerk of the
Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark was September 22, 2014, rendering the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On July 26, 2005 appellant, then a 56-year-old licensed practical nurse, filed a Form
CA-1, traumatic injury claim, alleging that on June 26, 2005 she injured her low back while
lifting a patient. OWCP accepted her claim for acute sprain and strain of the lumbar region.
Appellant did not stop work.
On June 20, 2012 appellant filed a claim for a schedule award for low back injury and
cancer. In a July 17, 2012 letter, OWCP requested that she submit a report from her physician
evaluating the extent of appellant’s permanent impairment under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides).3
Appellant submitted an October 15, 2012 report from Dr. Robert G. Savarese, an
osteopath, who treated her for chronic low back pain after an injury in 2005. Dr. Savarese noted
that appellant was moderately obese, had no scoliosis, tenderness, or trigger points, her reflexes
were positive and equal, and she exhibited intact strength and sensation of the lower extremities.
He diagnosed significant facet arthropathy at L3-4, L4-5, L5-S1 and recommended
radiofrequency ablation. Appellant submitted reports from a physician’s assistant dated
January 14 and July 29, 2013, who treated her for ankle brachial index and low back pain. The
physician’s assistant diagnosed low back pain with lumbar radiculopathy and moderate stenosis
at L3-4.
On July 10, 2013 appellant filed a second claim for a schedule award based upon the
June 26, 2005 injury. In a November 6, 2013 letter, OWCP again requested that she submit a
report from her physician evaluating the extent of her permanent impairment under the A.M.A.,
Guides.
In a decision dated January 31, 2014, OWCP denied appellant’s most recent claim for a
schedule award. It found that the medical evidence did not establish any permanent impairment.
In an undated appeal request form, appellant timely requested reconsideration. She
submitted reports from a physician’s assistant dated March 4 to November 18, 2013 who treated
her for weakness and radiating low back pain. The physician’s assistant diagnosed left hip
osteoarthritis and low back pain with probable L5 nerve root irritation. Appellant underwent
right hip injections and interlaminar epidural steroid injections. In reports dated July 29 and
December 2, 2013, the physician’s assistant treated appellant in a follow-up after a repeat L3-4
interlaminar epidural steroid injection and noted that appellant was at maximum medical
improvement. She diagnosed degenerative disc disease of the lumbar spine and recommended
an electromyogram (EMG). Appellant submitted a magnetic resonance imaging scan of the
lumbar spine dated November 26, 2013 which revealed degenerative disc and spine disease of
the lumbar spine at L3-S1, L3-4, L4-5, T10-11, and T11-12. She was treated by Dr. Savarese
from March 7 to July 18, 2013 for left hip, low back, and groin pain. Dr. Savarese diagnosed left
3

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

2

hip pain with osteoarthritis, multilevel lumbar degenerative disc disease with facet pain, stenosis,
and lumbar radiculopathy. He performed left hip intra-articular injections and bilateral L3-4
interlaminar epidural steroid injections. In reports dated November 21, 2013 and January 2,
2014, Dr. Savarese treated appellant for low back and leg pain. He noted the epidural steroid
injections relieved symptoms but wore off and appellant presented with significant pain and
numbness. Dr. Savarese diagnosed worsening stenosis at L3-4 with chronic lumbosacral
radiculopathy, suspected lumbar stenosis, facet arthropathy, and diabetes. He noted the EMG
revealed chronic denervation in the right gastroc and bilateral anterior tibialis. Appellant
submitted a copy of the January 31, 2014 OWCP decision, previously of record.
In a March 26, 2014 decision, OWCP denied appellant’s updated request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant a merit
review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or his written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by [OWCP];
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”5
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.6
ANALYSIS
OWCP denied appellant’s claim for a schedule award on the grounds that she failed to
establish that she sustained permanent impairment to a scheduled member due to her accepted
work injury. It later denied her reconsideration request without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.608(b).

3

In her request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, she did not identify a specific point of law or show that it was
erroneously applied or interpreted, nor did she advance a new and relevant legal argument. The
underlying issue in this case is whether she sustained permanent impairment to a scheduled
member due to her accepted work injury. That is a medical issue which must be addressed by
relevant new medical evidence.7 A claimant may be entitled to a merit review by submitting
new and relevant evidence, but appellant did not submit any new and relevant medical evidence
in support of her claim.
Appellant submitted reports from Dr. Savarese from March 7, 2013 to January 2, 2014
which noted diagnoses, findings, and the treatment that he provided to her. However, these
reports, while new, are not relevant because they do not address the issue of whether her
diagnosed conditions were causally connected to her accepted work injury. The Board has held
that the submission of evidence which does not address the particular issue involved in a case
does not constitute a basis for reopening the claim.8 Thus, these reports are insufficient to
require OWCP to reopen the claim for a merit review.
Appellant also submitted reports from a physician’s assistant. The Board has held that a
physician assistant is not competent to render a medical opinion under FECA.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that she submitted sufficient evidence to establish permanent
impairment to a scheduled member related to her work injury and was entitled to a schedule
award. As explained, the Board does not have jurisdiction to review the merits of the claim.
Appellant did not submit any evidence or argument in support of her reconsideration request that
warranted reopening of her claim for a merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

7

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

8

Johnnie B. Causey, 57 ECAB 359 (2006).

9

See S.E., Docket No. 08-2214 (issued May 6, 2009); 5 U.S.C. § 8101(2).

4

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Perry Point, MD, Employer
__________________________________________

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

Docket No. 18-0005
Issued: May 24, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant, through counsel, filed a timely appeal from an August 31,
2017 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 to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 1, 2016; and (2) whether
appellant met her burden of proof to establish any continuing disability or residuals on and after
September 1, 2016.
FACTUAL HISTORY
On April 5, 2013 appellant, then a 42-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on March 29, 2013 she injured her left shoulder while
lifting a 30-pound pan of food while in the performance of duty.3 She stopped work on April 5,
2013 and returned to a full-time light-duty job on April 11, 2013. OWCP initially accepted the
claim for left shoulder and upper arm strain, and subsequently expanded acceptance of the claim
to include neck sprain, and temporary aggravation of cervical intervertebral disc without
myelopathy.4
On November 26, 2013 appellant filed an occupational disease claim (Form CA-2)
alleging that muscle spasms in her neck were due to her employment duties. She first became
aware of this condition on March 29, 2013, but did not realize the relationship to her work until
October 22, 2013. Appellant stopped work on November 5, 2013. OWCP accepted the claim
for aggravation of cervical radiculopathy/brachial neuritis and paid wage-loss compensation on
the supplemental rolls beginning November 6, 2013.5
The record contains reports and disability notes from Dr. Pawan Rastogi, a treating
Board-certified neurosurgeon. In reports dated throughout 2013 and 2014, Dr. Rastogi
diagnosed cervical radiculopathy and found appellant totally disabled from work.
By letter dated March 19, 2014, OWCP informed appellant that it was combining OWCP
File Nos. xxxxxx480 and xxxxxx290, with the latter file number designated as the master file.
On May 6, 2014 OWCP authorized Dr. Rastogi to perform left posterior C5-6, C6-7
foraminotomy. This procedure was performed on June 27, 2014.
On November 4, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, for an opinion regarding the status
of appellant’s work-related conditions and work capacity.
In a November 24, 2014 report, Dr. Smith reviewed a statement of accepted facts
(SOAF), and the medical evidence of record. He noted an aggravation of cervical radiculopathy
as the accepted work injury. A physical examination revealed satisfactory cervical range of
3

The record reflects that appellant had a prior December 14, 2012 traumatic injury claim under OWCP File No.
xxxxxx564 which was accepted for cervical strain. This claim has not been combined with the current claim.
4

OWCP assigned File No. xxxxxx480.

5

OWCP assigned File No. xxxxxx290.

2

motion without rigidity or spams, normal left upper extremity findings, and objectively normal
neurological examination. Dr. Smith noted that he was unable to answer questions posed by
OWCP because medical reports that appellant mentioned during her evaluation had not been
provided for his review.
In a February 25, 2015 supplemental report, Dr. Smith reviewed additional medical
records, appellant’s job description, and three SOAFs. He opined that appellant’s accepted left
shoulder sprain and aggravation of cervical radiculopathy had resolved, with the cervical
radiculopathy aggravation addressed by the June 2014 decompression surgery. Dr. Smith further
concluded that appellant was capable of returning to full-duty work with no restrictions based on
her benign clinical examination and lack of any discernible ongoing objective residuals.
On June 9, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Smith’s February 25, 2015 report.
In response to OWCP’s notice of proposed termination appellant submitted a June 27,
2014 anesthesia record from her left C5-6, C6-7 posterior cervical foraminotomy surgery.
By decision dated July 15, 2015, OWCP finalized the termination of appellant’s
compensation benefits effective that day. It found the weight of the medical opinion evidence
rested with OWCP’s referral physician, Dr. Smith, who concluded that appellant had no residuals
or disability due to her accepted conditions.
In a letter dated July 23, 2015, appellant, through counsel, requested a telephonic hearing
before an OWCP hearing representative, which was held on March 17, 2016.
In an April 12, 2016 report, Dr. Rastogi noted treating appellant for cervical
radiculopathy from December 14, 2012 and March 29, 2013 injuries. He reported that appellant
underwent C5-6, C6-7 posterior decompression with foraminotomy surgery on June 27, 2014.
Following surgery, Dr. Rastogi noted that appellant continued to have significant neck pain
radiating into her left arm. He suspected appellant had chronic nerve damage from her work
injuries and concluded that she was disabled from any gainful employment. Lastly, Dr. Rastogi
noted a functional capacity evaluation (FCE) had been conducted which found appellant was
capable of working two hours per day in a sedentary position. However, he did not agree that
she was capable of working a sedentary job for two hours per day.
By decision dated May 26, 2016, an OWCP hearing representative reversed the July 15,
2016 termination decision. He found Dr. Smith’s opinion was insufficiently rationalized to meet
OWCP’s burden of proof to terminate.
On June 14, 2016 OWCP referred appellant, along with an updated SOAF, for a
reevaluation with Dr. Smith.
In a June 27, 2016 report, Dr. Smith, based upon a review of the medical evidence,
updated SOAF, and physical examination, concluded that appellant had no residuals or disability
due to the accepted March 29, 2013 employment injury. He reported appellant’s history of
injury and summarized medical treatment provided. Dr. Smith noted appellant’s belief that she
was totally disabled and listed her complaints. A physical examination revealed no cervical
3

muscle atrophy, spasm, deformity or trigger points and normal neurological examination. Based
on examination findings, Dr. Smith diagnosed prior cervical anterior discectomy and fusion and
posterior foraminotomies. He noted that apparently OWCP had accepted appellant’s claim for
brachial neuritis or radiculitis and opined that, if the “condition ever existed,” that it had resolved
by August 13, 2013 based on normal diagnostic testing. Dr. Smith further opined that any
medical treatment provided subsequent to August 13, 2013 was unrelated to the accepted
conditions and medically unnecessary. He opined that appellant’s subjective complaints were
unsupported by any objective findings correlating to the accepted March 29, 2013 work injury.
Lastly, Dr. Smith found appellant had reached maximum medical improvement on August 13,
2013 and required no further treatment. He further found that appellant could return to her usual
job with no restrictions.
On July 27, 2016 OWCP issued a notice proposing to terminate appellant’s compensation
benefits based on Dr. Smith’s June 27, 2016 report.
By decision dated September 1, 2016, OWCP finalized the termination of appellant’s
compensation benefits effective that day. It found Dr. Smith’s June 27, 2016 report constituted
the weight of the medical opinion evidence.
In a letter dated September 7, 2016, appellant, through counsel, requested a telephonic
hearing before an OWCP hearing representative, which was held on April 12, 2017.
By decision dated May 15, 2017, an OWCP hearing representative affirmed the
September 27, 2016 decision terminating appellant’s compensation benefits. She further found
that appellant failed to meet her burden of proof to establish any continuing disability or
residuals on and after September 1, 2016.
On June 5, 2017 appellant, through counsel, requested reconsideration. In support of this
request, OWCP received a May 9, 2017 report from Dr. Rastogi. Dr. Rastogi related that he had
last examined appellant on April 25, 2017. He opined that appellant could return to work in a
position that did not require repetitive work with her arms above her shoulders and
flexion/extension/rotation of her neck, to accommodate her cervical radiculopathy. Dr. Rastogi
also related that due to her lumbar radiculopathy she should observe weight lifting limits and
bending/stooping/twisting of her back.
By decision dated August 31, 2017, OWCP denied modification.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden to justify
modification or termination of an employee’s benefits.6 After it has determined that an
employee has disability causally related to his or her federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

6

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

the employment.7 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.9 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective September 1, 2016.
OWCP accepted the conditions of left shoulder and upper arm strain, neck sprain, and
temporary aggravation of cervical intervertebral disc without myelopathy under OWCP File No.
xxxxxx480 and aggravation of cervical radiculopathy under OWCP File No. xxxxxx290. It
terminated appellant’s wage-loss compensation and medical benefits, effective September 1,
2016 finding the weight of the medical evidence established that she no longer had any residuals
or continuing disability from work stemming from her employment-related injuries. In
evaluating the medical evidence, OWCP determined that the weight of the medical evidence
rested with the second opinion physician, Dr. Smith.
In November 2014, appellant was referred to Dr. Smith for a second opinion
examination. In a November 24, 2014 report, Dr. Smith noted her history of injury and that the
accepted condition was aggravation of cervical radiculopathy. He indicated that he was unable
to answer OWCP’s questions as appellant referenced medical evidence that had not been
provided for review. Dr. Smith, in a February 25, 2015 supplemental review, concluded that
appellant’s accepted left shoulder sprain and cervical radiculopathy had resolved. He further
opined that appellant no longer had any residuals or disability due to the accepted work injuries
and was capable of returning to full-duty work with no restrictions.
OWCP again referred appellant for a second opinion evaluation with Dr. Smith on
June 14, 2016 following a May 26, 2016 hearing representative’s decision which found
Dr. Smith’s opinion insufficiently rationalized to support termination. In a June 27, 2016 report,
Dr. Smith again concluded that appellant had no disability or residuals due to the accepted
March 29, 2013 employment injury. He reviewed the updated SOAF, responded to questions
posed by OWCP, noted appellant’s complaints and belief that she was totally disabled, and
summarized the medical records reviewed. Dr. Smith noted that OWCP had apparently accepted
brachial neuritis or radiculitis and questioned whether the “condition ever existed,” but opined
that it had resolved by August 13, 2013 based on normal diagnostic testing. He further
7

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

8

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

9

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

5

concluded that medical treatment provided subsequent to August 13, 2013 was medically
unnecessary and unrelated to the accepted conditions, he questioned whether appellant’s cervical
forminatomy procedure performed in July 2014 had been authorized by OWCP. The basis for
his opinion was that appellant’s subjective complaints were unsupported by any objective
findings correlating to the accepted March 29, 2013 work injury. Dr. Smith also found appellant
had reached maximum medical improvement on August 13, 2013, required no further treatment,
and could return to full-duty work without any work restrictions.
The Board finds, however, that Dr. Smith’s reports are conclusory in nature and lacking
sufficient medical rationale, and, therefore, contain insufficient rationale to support termination
of wage-loss compensation and medical benefits.11 While OWCP had authorized appellant’s
cervical decompression foraminotomy surgery on June 27, 2014, Dr. Smith concluded that
appellant had not required further medical treatment after August 13, 2013.
Dr. Smith had been specifically instructed to provide “detailed reasoning” for his medical
conclusion that appellant’s accepted conditions had resolved without any residuals or disability,
but his response lacked sufficient reasoning supporting his conclusion.12 He relied on
interpretation of diagnostic tests performed in 2013 to support his conclusion. Because
Dr. Smith’s second opinion report failed to provide medical rationale in support of his findings,
his opinion is of diminished probative value and is insufficient for OWCP to meet its burden of
proof to justify the termination of ongoing wage-loss compensation and medical benefits.
The Board, therefore, finds that OWCP erred in terminating appellant’s wage-loss
compensation and medical benefits effective September 1, 2016 based on Dr. Smith’s second
opinion report. The Board will reverse OWCP’s determination terminating her wage-loss
compensation and medical benefits.13
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective September 1, 2016.

11

See C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7,
2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
12

A.R., Docket No. 12-0443 (issued October 9, 2012); see also P.F., Docket No. 13-0728 (issued September 9,
2014); T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report consisting solely of conclusory
statements without supporting rationale is of little probative value).
13

In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 31, 2017 is reversed.
Issued: May 24, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
TENNESSEE VALLEY AUTHORITY, COAL & )
GAS OPERATIONS, WIDOWS CREEK FOSSIL )
PLANT, Stevenson, AL, Employer
)
__________________________________________ )
B.T., Appellant

Appearances:
Elizabeth A. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1665
Issued: July 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 25, 2020 appellant, through counsel, filed a timely appeal from an April 9,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a pulmonary
condition causally related to the accepted employment exposure.
FACTUAL HISTORY
On January 24, 2019 appellant, then a retired 58-year-old boilermaker,3 filed an
occupational disease claim (Form CA-2) alleging that he developed occupational pneumoconiosis
and bronchitis due to factors of his federal employment. He indicated that he first became aware
of his conditions and their relation to his federal employment on September 25, 2018.
In a September 25, 2018 letter, appellant notified the employing establishment that he was
informed by his physician for the first time that he had an occupational disease that was work
related.
In undated responses referencing FECA Bulletin No. 85-33, “Evidence Required in
Support of a Claim for Asbestos-Related Illness” accompanying his claim, appellant recounted
that he had sporadically worked for the employing establishment at two different plants from
April 24, 1981 to December 28, 1991 as a boilermaker and was exposed to coal dust, arsenic and
flue gas, and asbestos, as well as welding smoke, welding fumes, and grinding dust for 10 to 12
hours a day, six to seven days a week. He indicated that he saw dust in the air and on the
equipment. Appellant only occasionally wore a paper mask while performing his various
positions. He noted that, prior to the commencement of his federal employment in 1982, he held
other jobs in his career, all of which were dust-free environments. However, appellant alleged that
all of his federal employment positions exposed him to dust and pollutants. He reported smoking
one pack of cigarettes per day for 40 years. Appellant also noted that he had bronchitis in the past,
most recently in 2016, for which he took medication.
In a November 19, 2018 medical report, Dr. Glen Baker, a Board-certified pulmonologist
and certified B-reader, related that appellant worked at multiple plants at the employing
establishment. During that time, appellant had exposure to asbestos, coal dust, inorganic arsenic,
flue gas, and welding fumes. Dr. Baker noted that appellant had a history of smoking one pack of
cigarettes a day for 40 years. He discussed appellant’s complaints of shortness of breath and daily
cough without sputum for the past three to four years and determined that a pulmonary function
study (PFS) performed on November 16, 2018 was normal. Dr. Baker noted that the August 28,
2018 x-ray revealed category 1/1 pneumoconiosis. He diagnosed occupational pneumoconiosis
and bronchitis. Dr. Baker opined that appellant had x-ray changes of early pulmonary fibrosis
from his occupational exposures to asbestos and coal dust. He further found that appellant’s
bronchitis was also caused by exposures to asbestos and coal dust present in his work environment.
In a development letter dated February 13, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and provided a questionnaire for his completion. In a separate letter of even
3
The record indicates that appellant stopped working at the employing establishment on December 28, 1991 and
retired as a boilermaker from private employment in February 2015.

2

date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to respond.
On March 4, 2019 the employing establishment advised that data of exposure to asbestos
and coal dust for appellant was not available because one of the plants that he worked at was no
longer in operation and many of the employees were either reassigned or retired. It requested an
additional 30 days to respond to OWCP’s February 13, 2019 development letter.
On March 13, 2019 the employing establishment disputed appellant’s allegations of dust
or asbestos exposure and noted that he was employed for approximately 29 months at the
employing establishment and four and half months at the Sequoyah Nuclear Plant over a 10-year
period. It advised that data of exposure to asbestos and coal dust was still not available, but that
assessments for boilermakers as the employing establishment consistently demonstrated that
personal exposures experienced by all workers were below occupational exposure limits. The
employing establishment indicated that appellant did not perform insulating/abatement duties of
asbestos as a boilermaker. It further noted that his position did not routinely require the use of
respirators because dust levels were well below Occupational Safety and Health Administration
established limits. OWCP also received a position description of appellant’s duties as a
boilermaker.
On March 20, 2019 OWCP referred appellant, a statement of accepted facts, and a list of
questions to Dr. Allan Goldstein, a Board-certified pulmonologist, for a second opinion
examination.
In a March 26, 2019 letter, counsel clarified that appellant worked at two different plants
at the employing establishment, for three years in total, and this caused him to be exposed to
asbestos, coal dust, arsenic and flue gas, fly ash, welding smoke, welding fumes, and grinding
dust. She also asserted that there were multiple employees who worked at the employing
establishment and had been found to have occupational lung diseases, who were compensated.
In a May 24, 2019 report, Dr. Goldstein noted appellant’s employment exposure and
symptoms. He conducted a physical examination and reviewed a May 23, 2019 chest x-ray.
Dr. Goldstein also reviewed Dr. Baker’s November 19, 2018 report and determined that appellant
had normal pulmonary functions at the time. He opined that appellant did not have occupational
pneumoconiosis. Although Dr. Goldstein acknowledged that he had not seen the August 28, 2018
x-ray mentioned in Dr. Baker’s report, Dr. Goldstein explained that if appellant’s x-ray improved,
then it would be inconsistent with any of the pneumoconiosis. He concluded that there was no
evidence that asbestosis was contributing to his respiratory symptoms. Dr. Goldstein opined that
appellant’s shortness of breath was in large part related to his body stature as well as his smoking.
In a July 24, 2019 supplemental report, Dr. Goldstein noted that he reviewed the
August 28, 2018 chest x-ray, which revealed pneumoconiosis. He indicated, however, that the
May 23, 2019 chest x-ray revealed normal results. Dr. Goldstein opined that appellant did not
have pneumoconiosis. He explained that pneumoconiosis was a scarring disease that could not
disappear from an x-ray.

3

By decision dated August 22, 2019, OWCP denied appellant’s occupational disease claim,
finding that he had not established causal relationship between his diagnosed pulmonary diseases
and the accepted work exposure. It found that Dr. Goldstein’s reports dated May 24 and July 24,
2019 established that appellant exhibited no evidence of significant lung disease due to asbestosis
or asbestos exposure.
On September 5, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
January 15, 2020. By decision dated April 9, 2020, OWCP’s hearing representative affirmed the
August 22, 2019 decision, finding that appellant had not established causal relationship between
his diagnosed pulmonary conditions and his accepted employment exposure. He accorded the
weight of the medical evidence to Dr. Goldstein.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
4

Supra note 2.

5
J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9
A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).

4

certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment factors identified by the employee.10
Section 8123(a) of FECA in pertinent part states that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
examiner (IME)) who shall make an examination.11 This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.12 When there exist opposing reports of virtually equal weight and
rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion
of such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.13
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Baker, in his November 19, 2018 report, reviewed an August 28, 2018 chest x-ray and
found category 1/1 pneumoconiosis and opined that appellant’s diagnosed occupational
pneumoconiosis and bronchitis were causally related to his work exposure.
In his July 24, 2019 supplemental report, Dr. Goldstein agreed that the August 28, 2018
x-ray revealed pneumoconiosis; however, he disagreed with Dr. Baker’s assessment and opined
that appellant did not have occupational pneumoconiosis causally related to his accepted work
exposure. He found that the subsequent chest x-ray performed on May 23, 2019 revealed no
abnormality that would otherwise confirm that appellant had pneumoconiosis.
The Board, thus, finds that a conflict in the medical evidence exists between Dr. Baker,
appellant’s treating physician, and Dr. Goldstein, OWCP’s referral physician, with respect to
whether appellant has occupational pneumoconiosis as a result of his federal employment.14 Their
reports are of equal probative value.15 As previously stated, when there are opposing medical
reports of virtually equal weight and rationale, the case must be referred to an IME to resolve the
conflict in the medical evidence.16 Consequently, the case must be referred to an IME to resolve
10
R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J.,
59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

Supra note 2 at § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009); M.S., 58 ECAB 328 (2007).
12

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

13
S.T., Docket No. 16-1911 (issued September 7, 2017); G.B., widow of R.B., Docket No. 16-1363 (issued March 2,
2017); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
14

See D.B. Docket No. 20-1142 (issued December 31, 2020); R.P., Docket No. 15-1893 (issued February 24, 2016).

15

Id.

16

Supra note 11.

5

the existing conflict in the medical opinion evidence regarding whether appellant has occupational
pneumoconiosis as a result of his federal employment.17
On remand OWCP shall refer appellant’s case and the complete case record, including the
chest x-rays dated August 28, 2018 and May 23, 2019, to an IME, who is a certified B-reader, for
resolution of the conflict in accordance with section 8123(a) of FECA and the implementing
regulations.18 Following this and other such further development as OWCP deems necessary, it
shall issue a de novo decision regarding his claim for an employment-related pulmonary
condition.19
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2020 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent with
this decision of the Board.
Issued: July 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
17

Id. See also D.B., supra note 14.

18

5 U.S.C. § 8123(a); id.

19
The Board notes that, while Dr. Goldstein mentioned reviewing the chest x-rays dated August 28, 2018 and
May 23, 2019, the record does not contain these reports.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF TRANSPORATION,
FEDERAL AVIATION ADMINISTRATION,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Edward Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1050
Issued: December 28, 2012

Case Submitted on the Record

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

JURISDICTION
On April 19, 2012 appellant, through his representative, filed a timely appeal from a
February 22, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On April 30, 2010 appellant, then a 41-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging an emotional condition as a result of an April 30,
1

5 U.S.C. § 8101 et seq.

2010 employment incident. In a May 16, 2010 statement, he reported that on April 30, 2010 he
was working as an air traffic controller when two aircraft were “placed on a collision course” by
another controller and put on his frequency.
In a witness statement dated May 3, 2010, Nathan Henkels, a coworker, stated that on
April 30, 2010 he was sitting next to appellant assisting him with live air traffic at the radar. He
stated the Havana Center was attempting to “hand off two northbound aircraft that were in
possible conflict. The trailing aircraft had significant speed overtake and was on a converging
course with the slower aircraft as traffic.” Appellant requested that he attempt to have the
Havana controller separate the airplanes vertically, but they referenced the traffic in their
airspace and continued to climb an aircraft through the altitude of the other traffic. Appellant
“saw the tracks and the traffic coming together and he insisted that I get Havana Center to fix it.
When the airplanes checked on frequency, [he] took appropriate action to separate them.”
In a May 4, 2010 statement, Paul McLeod, a coworker, stated that he was working
training next to appellant on April 30, 2010. Appellant asked him “to look at what was going on
with Havana hand offs on his scope.” He stated that it appeared that Havana Center was
attempting to hand off two aircraft that were in possible conflict, and he issued instructions to
separate them. Mr. McLeod noted that appellant seemed very upset by the incident.
In a statement dated June 3, 2010, the human resources manager stated the aircraft had
remained separated by 10 miles, and the required separation was five miles or 1,000 feet
vertically. The human resources manager asserted that appellant was “not responsible” for the
separation of the aircraft as the aircraft were not yet in Miami airspace. Further lives were not in
imminent danger and appellant “was not yet directly working the aircraft or directly responsible
for their separation at the time of the incident.” It was noted that appellant was not disciplined
for the incident.
By decision dated June 18, 2010, OWCP denied the claim for compensation. It found
that he was not in the performance of duty at the time of the alleged incident.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 8, 2010. At the hearing, George Rivera, a coworker, testified that he was in the
control room on April 30, 2010. He noted that the Miami air space was a congested area with
increased traffic coming from the Havana airspace.
In a decision dated June 1, 2011, OWCP’s hearing representative affirmed the June 18,
2010 decision. The hearing representative found that the evidence did not establish that
appellant had operational responsibility for the aircraft and did not establish a compensable work
factor.
By letter dated August 11, 2011, appellant requested reconsideration. He submitted a
June 9, 2011 reprimand for negligent work performance. The employing establishment stated
that on November 21, 2009 appellant had become aware of a potential conflict with two aircraft,
but did not take positive action to resolve the developing conflict as he had advised one aircraft
to return to Havana Center’s frequency. The reprimand acknowledged that “Havana should have

2

provided positive separation between these two aircraft, however, when that separation was not
assured you had an obligation to resolve that conflict.”
By decision dated September 30, 2011, OWCP found the application for reconsideration
was insufficient to warrant merit review of the claim. Appellant again requested reconsideration
by letter dated January 24, 2012. He submitted a document describing coordination procedures
between Miami Air Traffic Control Center and Havana Air Control Center.
In a decision dated February 22, 2012, OWCP reviewed the merits of the claim and
denied modification. It found the evidence did not establish that the aircraft were in appellant’s
assigned airspace. OWCP also stated that there was no loss of separation between aircraft that
required emergent action.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.3 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.5
To occur in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be said to be engaged in his or her master’s business; (2) at a
place where he or she may reasonably be expected to be in connection with the employment; and

2

Pamela R. Rice, 38 ECAB 838 (1987).

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

4

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

5

Lillian Cutler, 28 ECAB 125 (1976).

3

(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.6
ANALYSIS
OWCP found that appellant did not establish a compensable work factor with respect to
the April 30, 2010 air traffic incident. Appellant alleged that while working the radar for the
Miami Air Traffic Control Center he became aware of a possible conflict with two aircraft
approaching from the Havana Center. A coworker assisting appellant, Mr. Henkels, stated that
there was a potential conflict as the trailing aircraft had significant speed overtake and was
converging on course with the slower aircraft. Appellant requested that Mr. Henkels contact the
Havana Center. When the aircraft “checked on frequency,” he took action to separate them.
In finding no compensable work factor, OWCP referred to: (1) the employing
establishment’s statement that there was no dangerous loss of separation between the two
aircraft; and (2) its statement that appellant was not “operationally responsible” for the aircraft
because they were still within Havana Center airspace. With respect to the first finding, the
Board notes that he did not allege that the planes nearly collided. The allegation, supported by
coworkers present, was the potential for a collision based on the planes speeds and direction.
The finding that the planes did not ultimately violate the guidelines for separation does not
support a determination that no compensable work factor was established.
With respect to operational responsibility, this was not a situation where appellant was
simply standing near the radar and witnessed a stressful incident.7 Appellant was working his
assigned duty monitoring live aircraft traffic on radar. As part of those duties, he observed a
potential conflict between two aircraft and attempted to resolve the conflict. The record contains
a disciplinary letter regarding a November 2009 incident that specifically noted that it was
appellant’s responsibility to take action to resolve a potential conflict, even if Havana Center
should have taken action. The disciplinary letter clearly indicated that he had an obligation to
take action even if the ultimate responsibility for action was with another radar center. Appellant
was advised that it was his responsibility to ensure separation between the aircraft. He was on
duty and monitoring radar. Appellant was performing his regular duties as an air traffic
controller under Cutler when the potential collision arose, a situation he took effort to remedy.
A reaction to regularly or specially assigned duties is a compensable factor under FECA.
Appellant alleged a reaction to an April 30, 2010 incident that arose directly from the
performance of his duties and responsibilities as an air traffic controller. The Board finds that he
has substantiated a compensable work factor under Cutler. The case will be remanded to OWCP
for proper consideration of the medical evidence. After such further development as is deemed
necessary, OWCP should issue an appropriate decision.

6

Carmen B. Gutierrez, 7 ECAB 58 (1954).

7

See L.G. Docket No. 09-276 (issued August 11, 2009) (the claimant was not operating the radar or responsible
for operation of the radar at the time of an incident involving two aircraft).

4

CONCLUSION
The Board finds that the evidence substantiates a compensable work factor and the case is
remanded to OWCP for consideration of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2012 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: December 28, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5