United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS B. STOKES MEDICAL CENTER,
Brecksville, OH, Employer
__________________________________________

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

Docket No. 09-67
Issued: May 22, 2009

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 October 9, 2008 appellant, through his representative, filed a timely appeal from the
September 19, 2008 merit decision of the Office of Workers’ Compensation Programs, which
denied compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant’s pulmonary condition is causally related to his
occupational exposure to mold on March 7, 2006. Appellant argues that the Office’s
September 19, 2008 decision is “contrary to fact and law.”
FACTUAL HISTORY
On the prior appeal of this case,1 the Board found that appellant met his burden to
establish that he experienced a specific event, incident or exposure occurring at the time, place
1

Docket No. 07-921 (issued July 26, 2007).

and in the manner alleged.2 The Board found, however, that the medical opinion evidence did
not establish the critical element of causal relationship. Dr. Sridhar K. Iyer, a Board-certified
internist specializing in pulmonary diseases, did not review the May 23, 2005 mold assessment
and did not account for appellant’s activity in the room or the duration of his exposure. Further,
he did not explain how a lung biopsy suggested an allergic reaction possibly to mold-type
exposure. The results of appellant’s biopsies were not in the record, so it was unknown whether
they supported Dr. Iyer’s opinion. The Board emphasized that sound medical reasoning was
particularly important where appellant had a history of pneumonia, where everyone at work
appeared to have the flu at the time appellant began feeling ill and, where appellant was
diagnosed with and aggressively treated for pneumonia. If that diagnosis was wrong, Dr. Iyer
did not explain. The Board affirmed the Office decision denying appellant’s claim for
compensation. The facts of this case as set forth in the Board’s prior decision are hereby
incorporated by reference.
On June 25, 2008 appellant, through his representative, requested reconsideration by the
Office.
He submitted medical records to support his claim.
On June 12, 2006
Dr. Sudish C. Murthy, a consulting Board-certified thoracic surgeon, reported that appellant’s
fairly rapidly advancing interstitial lung disease was of unclear etiology.
On April 28, 2006 Dr. Iyer diagnosed bilateral infiltrate, etiology undetermined. On
August 24, 2007 he described appellant’s past medical history, including bibasilar pneumonia
requiring open lung biopsy. Appellant was determined to have bronchiolitis obliterans. Dr. Iyer
stated: “These respiratory events occurred after he was exposed to a place with a lot of mold in
the workplace. It seems to have happened secondary to the mold.”
On June 16, 2006 Dr. Thomas R. Gildea, a Board-certified specialist in pulmonary
disease, noted that appellant was treated in March 2004 for a few months of dry cough, which
resolved:
“No further lung problems until [March] [20]06 when [appellant] went to VA
hospital file room in the basement looking for vagrants (he is a detective). There
was extensive mold on the walls and he had been in the room with a flashlight for
about 15 minutes, before finding the mold. He left immediately.
“About a week and a half later [appellant] developed flu[-]like symptoms and
then a week later was short of breath with modest activities.”
On October 11, 2006 Dr. Gildea stated:
proximate source of [appellant’s] disease ….”

“It is clear that the acute exposure is the

On February 9, 2007 Dr. Jeffrey T. Chapman, a specialist in pulmonary disease and an
associate of Dr. Gildea, reported the same history of present illness. He noted no evidence of
2

On May 17, 2006 appellant, then a 52-year-old criminal investigator, filed a claim alleging that he sustained an
injury to his lungs on March 7, 2006 when he was exposed to mold or fungus in the performance of duty. He
entered a records room and noticed what appeared to be mold on the files and other surfaces. Appellant remained in
the room for about 15 minutes and the following week he was coughing and felt like he had the flu.

2

systemic disease or exposure other than the mold. Dr. Chapman stated, however: “I doubt the
mold is playing a role here.” On March 7, 2008 he reported:
“The cause of [appellant’s] organizing pneumonia is unclear. In most cases the
cause is either unknown, related to a connective tissue disease, or related to a
recent viral infection. Temporally [appellant] notes a relationship to an intense
mold exposure which could also be the cause. Given he has no connective tissue
disease and did not have an antecedent viral exposure, it is more likely than not
that the mold exposure is the proximate cause.”
On March 26, 2008 Dr. Alan E. Kravitz, Board-certified in cardiovascular disease,
reported to appellant’s representative that he had reviewed appellant’s voluminous file. He
stated that appellant had a bronchoscopy that showed allergic relation secondary to mold
exposure, which was his only pulmonary problem. Additionally, Dr. Kravitz stated it was
altogether likely that appellant’s recurrent episodes of pneumonia were related to the mold
damage to his lungs:
“Mold is one of the causes of allergic bronchitis and obstructive airways disease.
It is clear that [appellant] has had recurrent exposure and the physicians treating
him discussed this allergic obstructive airways disease reversible by steroids.
Accordingly, to a reasonable degree of medical certainty as stated below there is a
causal relationship between pulmonary diseases described and various mold
described, and it is far more likely than not in this case that the cause of his
pulmonary disease is mold exposure.”
Indeed, Dr. Kravitz stated that there was absolute medical certainty. He noted:
“[Appellant] had no pulmonary problems prior to exposure and had problems after.” Dr. Kravitz
added that treatment, including steroids, was directed at complications from exposure to mold,
whether allergic reaction, allergic bronchitis or obstructive airways disease.
In a decision dated September 19, 2008, the Office reviewed the merits of appellant’s
claim and denied modification of its prior decision. It found that appellant failed to submit a
comprehensive, probative medical opinion based on an accurate history of injury and fully
providing a well-rationalized medical explanation of whether and how the March 7, 2006 work
exposure directly led to his lung condition.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.3 An
employee seeking compensation under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,

3

5 U.S.C. § 8102(a).

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incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty7
and, must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
ANALYSIS
In its July 26, 2007 decision, the Board explained what was missing from the medical
evidence submitted. The Board noted no review of the May 23, 2005 mold assessment, which
was the best evidence of the nature of appellant’s exposure. The Board noted no account of
appellant’s activity in the room or the duration of his exposure. Further, the Board noted no
explanation of how a lung biopsy suggested an allergic reaction possibly to mold-type exposure.
The Board emphasized that sound medical reasoning was particularly important where appellant
had a history of pneumonia, where everyone at work appeared to have the flu at the time
appellant began feeling ill and where he was diagnosed with and aggressively treated for
pneumonia.
After the Board’s decision, appellant, through his representative, submitted over 700
pages of medical documents to the case record. These documents were unresponsive to the
Board’s decision.
Dr. Murthy, the consulting Board-certified thoracic surgeon, reported that appellant’s
lung disease was of unclear etiology. That does not help appellant’s case. Dr. Iyer, a Boardcertified internist specializing in pulmonary diseases, also reported that appellant’s condition was
of undetermined etiology. On August 24, 2007 after noting that appellant’s respiratory events
occurred after exposure to a lot of mold in the workplace, Dr. Iyer stated that these events
seemed to have happened secondary to the mold exposure. But a mere temporal relationship is
not enough to establish cause.9 Dr. Iyer failed to explain how appellant’s specific exposure on
4

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

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Thomas D. Petrylak, 39 ECAB 276 (1987).

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March 7, 2006 caused his subsequently diagnosed pulmonary condition. He stated only that it
seemed to have happened secondary to the mold. Such uncertain and unrationalized opinions
carry little weight.
Dr. Gildea, a Board-certified specialist in pulmonary disease, briefly described
appellant’s exposure and on October 11, 2006 he stated: “It is clear that the acute exposure is the
proximate source of [appellant’s] disease ….” He offered no medical rationale. Dr. Gildea did
not explain what evidence made the causal connection clear.
Dr. Jeffrey T. Chapman, a specialist in pulmonary disease and an associate of Dr. Gildea,
did not think the causal connection was clear. On February 9, 2007 he stated: “I doubt the mold
is playing a role here.”
The following month appellant became equivocal.
Dr. Chapman reported that the cause of appellant’s organizing pneumonia was unclear, but given
no connective tissue disease and no antecedent viral exposure, it was more likely than not that
the mold exposure was the proximate cause. Although the medical opinion of a physician
supporting causal relationship does not have to reduce the cause or etiology of a disease or
condition to an absolute medical certainty, neither can such opinion be speculative or equivocal.10
Dr. Chapman appears to be providing two different opinions, first that the cause remains unclear,
second that the cause is more likely than not appellant’s mold exposure. The lack of internal
consistency diminishes the value of his opinion. However, it is not clear whether his history of no
antecedent viral exposure is accurate. Appellant reported that everyone at work appeared to have
the flu at the time he began feeling ill.
The only medical opinion evidence developed after the Board’s July 26, 2007 decision is
the March 26, 2008 report from Dr. Kravitz, a cardiologist, who does not specialize in
pulmonary diseases, so his opinion on the cause of appellant’s bronchiolitis obliterans with
organizing pneumonia, or BOOP, is not persuasive. Dr. Kravitz alleged, without explanation,
that a bronchoscopy showed an allergic reaction secondary to mold exposure.
He alleged, without supporting factual evidence, that appellant had recurrent exposure. The only
issue is whether appellant’s 15 minutes in a records room on March 7, 2006 caused an injury to
his lungs. Dr. Kravitz pointed to a temporal relationship between appellant’s exposure and his
subsequent lung problems, but causal relationship requires much more than a sequence of events.
It requires a soundly reasoned medical explanation. Dr. Kravitz stated that appellant’s treatment
was directed at complications from exposure to mold, but he did not explain.
The Board finds that the certainty and unequivocal character of Dr. Kravitz’s opinion is
not enough to overcome his lack of expertise, the lack of convincing medical reasoning and his
inaccurate history of recurrent exposure.
The Board reiterates what it stated on the last appeal. Sound medical reasoning is
particularly important where appellant had a history of pneumonia, where everyone at work
appeared to have the flu at the time appellant began feeling ill and where appellant was
diagnosed with and aggressively treated for pneumonia. To discharge his burden of proof,
appellant must submit a medical opinion from a specialist in pulmonary diseases addressing
these matters. The specialist must review the May 23, 2005 mold assessment in Room H27 and
10

Philip J. Deroo, 39 ECAB 1294 (1988).

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must account for appellant’s activity in the room and the duration of his exposure. The specialist
must soundly explain, with medical reasoning sufficient to convince a lay adjudicator, that
appellant’s 15 minutes in Room H27 on May 7, 2006 caused an injury to his lungs. He must
explain the nature of that injury and must cite the factual and medical evidence that logically
supports causal relationship. Without this evidence, appellant has not met his burden of proof.
The Board will therefore affirm the Office’s September 19, 2008 decision denying his claim for
benefits.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed pulmonary condition is causally related to his occupational exposure to mold on
March 7, 2006. The medical opinion evidence does not establish causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marshfield, VT, Employer
__________________________________________

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Appearances:
Patricia K. Turley, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0051
Issued: August 20, 2019

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 9, 2018 appellant, through counsel, filed a timely appeal from a May 3, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.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
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5 U.S.C. § 8101 et seq.

The Board notes that, following the May 3, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedures 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 OWCP properly determined that appellant forfeited his entitlement to
wage-loss compensation for the periods November 29, 2013 to July 7, 2014 and July 26, 2014 to
June 25, 2015 as he knowingly failed to report employment activities and earnings, pursuant to 5
U.S.C. § 8106(b).
FACTUAL HISTORY
This case has been previously before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On October 18, 2013 appellant, then a 44-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 12, 2013 he pulled muscles in his neck, shoulder, and
upper back while in the performance of duty. OWCP accepted the claim for a sprain of the neck
and left shoulder, a left superior glenoid labrum lesion, and a disorder of bursae and tendons in the
left shoulder region.
On December 17, 2013 appellant filed a claim for compensation (Form CA-7) requesting
wage-loss compensation for the period November 29 to December 13, 2013. The form advised
him that he must report any and all earnings from employment, self-employment, or involvement
in a business enterprise for which he received a salary, wages, income, commissions, or payment
of any kind during the period(s) claimed. Appellant signed the form and indicated that he had not
performed work outside of his federal job for the period claimed.
Appellant additionally submitted CA-7 forms requesting wage-loss compensation for total
disability for the periods November 29, 2013 to June 13, 2014 and July 26 through
September 14, 2014. He indicated on the forms that he had not worked during the periods claimed.
OWCP paid appellant wage-loss compensation for total disability for the period
November 29, 2013 to September 20, 2014 on the supplemental rolls.
In a July 7, 2014 Form EN1032, appellant advised that he had been self-employed for the
preceding 15-month period as co-owner/manager of Hilltop Auto Body. He maintained that he
had not participated in the business enterprise since his October 12, 2013 employment injury.
Appellant indicated that he had not received pay or actual earnings from the business.
Appellant returned to part-time modified employment on September 26, 2014.5 He
submitted claims for compensation (Form CA-7) requesting wage-loss compensation for
intermittent periods of disability from employment from October 7, 2014 to July 24, 2015.

4

Docket No. 16-1379 (issued August 4, 2017).

5
From May 4 through September 20, 2014, appellant was paid compensation on the periodic rolls. Wage-loss
compensation payments before and after this period were paid on the supplemental rolls pursuant to CA-7 forms filed
by appellant.

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Appellant indicated on the forms either that he had not worked during the period claimed or failed
to respond to the question.
OWCP paid appellant compensation for intermittent time lost from work from
September 21, 2014 until July 24, 2015.
In a case summary report covering January 30 to October 4, 2014, the employing
establishment’s Office of the Inspector General (OIG) advised that insurance companies had
written checks to appellant or Hilltop Auto Body from October 2013 to March 2014. It provided
supporting documentation, including estimates provided by Hilltop Auto Body to insurance
companies, copies of payments made directly to him based on the estimates, and invoices from
Hilltop Auto Body to customers listing him as the point of contact.
In an addendum dated December 10, 2014, covering the period October 5 to December 4,
2014, the OIG submitted interviews from witnesses identifying appellant as the owner of Hilltop
Auto Body. It related that bank account statements established that he used a sole proprietorship
account for Hilltop Auto Body with deposits for April through July 2014 totaling $127,992.00.
The OIG submitted evidence showing that Hilltop Auto Body deposited over $29,000.00 in
payments from March to May 2014 and $127,992.00 from April through July 2014.
A 2013 Schedule C, Profit or Loss from Business tax form completed by appellant showed
that Hilltop Auto Body had gross sales of $217,861.00 and gross income of $94,577.00. He listed
a net loss on the form of $31,638.00. Appellant identified himself on the form as a sole proprietor
of Hilltop Auto Body. He responded “yes” to the question on the form of whether he materially
participated in the operation of the business in 2013.
In a July 7, 2015 addendum, the OIG submitted deposit slips and checks made out to either
appellant or Hilltop Auto Body dated July 16, 2014 to May 18, 2015 and invoices through
June 2015. It provided a 2014 Schedule C tax form completed by him as the sole proprietor of
Hilltop Auto Body showing gross sales of $246,455.00 and gross income as $112,604.00.
Appellant responded “yes” to the question on the form of whether he materially participated in the
business during that year. He claimed a net loss from the business of $7,653.00.
By decision dated July 23, 2015, OWCP found that appellant had forfeited his entitlement
to compensation for the period November 29, 2013 to June 25, 2015 because he knowingly failed
to disclose his outside earnings and employment pursuant to 5 U.S.C. § 8106(b). It determined
that he had failed to fully disclose his earnings and employment on a July 7, 2014 EN1032 form
covering the period April 7, 2013 through July 7, 2014 and had failed to disclose employment on
CA-7 forms covering the period July 26, 2014 through June 25, 2015.
On July 23, 2015 OWCP advised appellant of its preliminary determination that he had
received a $50,802.10 overpayment of compensation as he forfeited entitlement to compensation
from November 29, 2013 through June 25, 2015 and that he was at fault in its creation.
On August 20, 2015 appellant requested a telephonic conference regarding the preliminary
determination of overpayment. He challenged fact and amount of overpayment and the finding
that he was at fault in its creation. Appellant asserted that he worked less than three or four hours
per week performing managerial duties and had no earnings.

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On October 5, 2015 appellant, through counsel, requested reconsideration of the July 23,
2015 forfeiture decision. In an accompanying September 18, 2015 statement, counsel argued that
appellant had properly completed the CA-7 forms as he had not received a salary, wages, income,
or other payments and reported his employment on the EN1032 form. She contended that his work
was passive, that he spent four or five hours per week on managerial duties, and that his expenses
were greater than his income. Counsel maintained that the investigative report demonstrated bias
as it failed to provide complete information.
In a September 27, 2015 affidavit, appellant advised that he believed that he had no
earnings. He maintained that he performed no repair work and had no taxable earnings.
In a May 3, 2016 memorandum of telephone conference regarding the preliminary
overpayment determination, counsel advised that appellant had reported that he co-owned a
business and asserted that his involvement was passive in nature. She also contended that his
business operated at a loss and thus had not generated income.
By decision dated March 24, 2016, OWCP found that appellant had received an
overpayment of compensation in the amount of $50,802.10 from November 29, 2013 through
June 25, 2015 as he forfeited his entitlement to compensation for this period. It further determined
that he was at fault in creating the overpayment. OWCP instructed appellant to forward a check
for the full amount of the overpayment as repayment.
Appellant appealed the March 24, 2016 overpayment determination to the Board.
By decision dated August 4, 2017, the Board affirmed in part and set aside in part the
March 24, 2016 decision.6 The Board found that appellant had received an overpayment of
compensation, but that the case was not in posture for determination regarding the amount of the
overpayment as the evidence was insufficient to support that he forfeited his entitlement to
compensation for the period July 7 to 26, 2014. The Board noted that there was no EN1032 form
or CA-7 form in the record covering this period. The Board determined that appellant had forfeited
his entitlement to compensation for the periods November 29, 2013 through July 7, 2014 and
July 26, 2014 through June 25, 2015 as he knowingly failed to report earnings or employment
activities and thus had received an overpayment of compensation during these periods. The Board
further found that he was at fault in the creation of the overpayment of compensation and thus not
entitled to waiver of recovery of the overpayment.
On February 15, 2018 counsel telephoned OWCP regarding the status of appellant’s
request for reconsideration of the July 23, 2015 forfeiture decision.7
On March 7, 2018 OWCP requested that counsel again file her September 18, 2015 request
for reconsideration and provide any additional arguments following review of the Board’s
August 4, 2017 decision.

6

Supra note 4.

7
OWCP issued a January 19, 2018 preliminary overpayment determination finding that appellant had received an
overpayment of wage-loss compensation in the amount of $48,435.90 because he forfeited compensation for the
periods November 29, 2013 to July 7, 2014 and July 26, 2014 to June 25, 2015.

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On March 13, 2018 appellant, through counsel, resubmitted the September 18, 2015
reconsideration request. Appellant further submitted a November 26, 2016 arbitration decision
finding that the employing establishment lacked just cause to remove him for failing to report his
outside work to OWCP. The arbitrator modified the disciplinary action to a 30-day suspension
with back pay as appropriate. She found that the record established that appellant had received
financial benefit from work outside the employing establishment which he failed to report on
forms, and thus found “just cause to discipline the grievant for misconduct.” The arbitrator
determined, however, that the discipline was excessive as he had acknowledged his outside work
on an EN1032 form and as the employing establishment had actual knowledge that he owned an
auto body shop. The arbitrator found that appellant had failed to report his income, but without
the intent to conceal his employment.
Counsel also submitted a December 15, 2016 letter in which she argued that the arbitrator
had ruled favorably on some issues, including that appellant had not concealed his employment
and that any earnings were minor compared with his salary from the employing establishment.
By decision dated May 3, 2018, OWCP vacated in part, modified in part, and affirmed in
part its July 23, 2015 forfeiture determination. It indicated that it had reopened appellant’s claim
for reconsideration of the forfeiture upon the expiration of the Board’s jurisdiction over the case.
OWCP noted that, with his reconsideration request, he had submitted evidence previously
reviewed by the Board in reaching its findings regarding the overpayment of compensation based
on the forfeiture decision. It also indicated that appellant had submitted an arbitrator’s decision
modifying his removal from the employing establishment for failing to report outside employment
to OWCP to a 30-day suspension. OWCP found that the evidence supported that he knowingly
failed to report employment earnings and activities from November 29, 2013 through July 7, 2014
and July 26, 2014 through June 25, 2015 and thus forfeited his entitlement to compensation for
this period. It vacated its finding in the July 23, 2015 decision that appellant had forfeited
entitlement to compensation from July 7 to 26, 2014 as there was no Form CA-7 or EN1032
covering that period. OWCP noted that he had to report earnings and employment activities even
if his business operated at a loss or he did not receive a salary.
LEGAL PRECEDENT
Section 8106(b) of FECA provides that an employee who “fails to make an affidavit or
report when required or knowingly omits or understates any part of his earnings, forfeits his right
to compensation with respect to any period for which the affidavit or report was required.8
An employee, however, can only be subjected to the forfeiture provision of 5 U.S.C. § 8106
if he or she knowingly failed to report employment or earnings. It is not enough to merely establish
that there were unreported earnings. The Board has recognized that forfeiture is a penalty, and, as

8

5 U.S.C. § 8106(b).

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a penalty provision, it must be narrowly construed.9 The term knowingly is defined within
OWCP’s regulations as with knowledge, consciously, willfully, or intentionally.10
OWCP regulations define earnings from employment or self-employment as: (1) gross
earnings or wages before any deductions and includes the value of subsistence, quarters,
reimbursed expenses and any offer goods or services received in kind as remuneration; or (2) a
reasonable estimate of the cost to have someone else perform the duties of an individual who
accepts no remuneration.11 Neither lack of profits nor the characterization of the duties as a hobby
removes an unremunerated individual’s responsibility to report the estimated cost to have someone
else perform his or her duties.12
ANALYSIS
The Board finds that appellant forfeited his entitlement to wage-loss compensation for the
periods November 29, 2013 to July 7, 2014 and July 26, 2014 to June 25, 2015 as he knowingly
failed to report employment activities and earnings.
Preliminarily, the Board notes that it is unnecessary to consider the evidence prior to the
issuance of OWCP’s March 24, 2016 decision as it reviewed that evidence in its August 4, 2017
decision. Based on its consideration of the evidence, the Board found that appellant had received
an overpayment of compensation due to his forfeiture of his entitlement to compensation for the
periods November 29, 2013 to July 7, 2014 and from July 26, 2014 to June 25, 2015 as he
knowingly failed to report earnings and employment activities. Findings made based on evidence
reviewed in prior Board decisions are res judicata absent further review and reconsideration by
OWCP under section 8128 of FECA.13
In a statement dated September 18, 2015, appellant contended that he had properly
completed the CA-7 forms, that his work was passive and consisted of managerial duties not
exceeding four or five hours per week, and that his expenses from the business exceeded his
income. He submitted a September 27, 2015 affidavit maintaining that he had not performed repair
work, had no taxable income, and did not believe that he had earnings. Again, however, the Board
previously considered these arguments in its prior decision, and thus the matter is res judicata.14
In a December 15, 2016 statement, appellant maintained that an arbitrator had found that
he had not concealed his employment and that any earnings were minor when compared with his
salary from the employing establishment. He submitted a November 26, 2016 arbitration decision.
The arbitrator determined that the employing establishment lacked proper cause for removing
appellant from employment based on his failure to report his outside work to OWCP. The
9

P.H., Docket No. 17-1362 (issued March 13, 2018).

10

20 C.F.R. § 10.5(n); R.A., Docket No. 18-0406 (issued January 28, 2019).

11

Id. at § 10.5(g).

12

Id.

13

See C.B., Docket No. 19-0175 (issued May 8, 2019); V.P., Docket No. 18-1815 (issued April 22, 2019).

14

J.F., Docket No. 18-1802 (issued May 20, 2019).

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arbitrator found that he had received a financial benefit from outside employment which he had
failed to report and that the employing establishment consequently had cause to issue discipline
for misconduct. However, she modified the removal to a 30-day suspension with back pay as
appropriate after finding that the removal was excessive given that the employing establishment
had actual knowledge of his outside work and as he reported his work on an EN1032 form. The
arbitrator determined that appellant had failed to report his income, but without the intent to
conceal his employment. It is well established, however, that decisions of other federal agencies
or governmental bodies are not dispositive to issues raised under FECA. Decisions made by such
tribunals are pursuant to different statues which have varying standards.15
On appeal counsel asserts that appellant disclosed his employment activities, that he had
not earned income from employment, and that the forfeiture decision violated his right to due
process. As discussed, however, he knowingly failed to report earnings during the period in
question and thus forfeited his right to compensation for the periods November 29, 2013 to July 7,
2014 and July 26, 2014 to June 24, 2015.16 Further, regarding appellant’s due process claim, as
an administrative body the Board does not have jurisdiction to review a constitutional claim.17
CONCLUSION
The Board finds that appellant forfeited his entitlement to wage-loss compensation for the
periods November 29, 2013 to July 7, 2014 and from July 26, 2014 to June 25, 2015 as he
knowingly failed to report employment activities and earnings pursuant to 5 U.S.C. § 8106(b).

15

See C.S., Docket No. 16-1784 (issued May 7, 2018); F.M., Docket N. 15-1869 (issued May 4, 2016).

16

See M.O., Docket No. 18-0686 (issued January 25, 2019).

17
See Woodruff v U.S. Department of Labor, 954 f2d 634 (11th Cir. 1992); see also C.D., Docket No. 17-1915
(issued February 21, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 20, 2019
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Billings, MT, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1399
Issued: January 12, 2012

Case Submitted on the Record

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

On May 27, 2011 appellant, through her attorney, filed a timely appeal from a nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) dated April 14, 2011 that
denied her request for reconsideration on the grounds that it was untimely filed and failed to
establish clear evidence of error.1 The Board docketed the appeal as No. 11-1399.
The Board has reviewed the record on appeal and finds that the case must be remanded to
OWCP for application of the appropriate standard of review to appellant’s timely request for
reconsideration. By its April 14, 2011 decision, OWCP stated that appellant requested
reconsideration of an April 10, 2009 decision, in a letter dated March 17, 2011. A review of the
case record indicates that there is no OWCP decision dated April 10, 2009. Rather, on April 10,
2009 the Board issued a merit decision.2 In a letter dated March 23, 2010, received by OWCP
on March 25, 2010, appellant, through counsel, requested reconsideration of the April 10, 2009
decision. By letter dated March 30, 2010, OWCP informed appellant’s counsel that if he
1

This case has previously been before the Board. In an April 10, 2009 decision, Docket No. 08-2051, the Board
found that OWCP properly found that appellant had no disability or residuals due to the accepted April 30, 2007
employment injury accepted for closed dislocations of the sacrum and lumbar vertebra. The law and the facts of the
previous Board decision are incorporated herein by reference.
2

Id.

disagreed with a decision, he should follow the appeal rights attached to that decision and that
“no action will be taken in the absence of your full and proper completion and submission of the
Appeal Request Form that was attached to the relevant decision.” On March 17, 2011 appellant,
through her attorney, again requested reconsideration and submitted additional medical
evidence.3 The attorney asserted that he had previously timely requested reconsideration, but the
request was not processed. By decision dated April 14, 2011, OWCP denied appellant’s request
for reconsideration on the grounds that it was untimely filed and failed to establish clear
evidence of error.
OWCP regulations provide that an application for reconsideration must be submitted in
writing.4 There is nothing in the regulations that state that an appeal request form must be
submitted, and the Board has held that no formal application for reconsideration is required.5
Moreover, a review of OWCP’s procedure manual indicates that a claimant has the right to
reconsideration within one year of any merit decision, whether issued by OWCP, its Branch of
Hearings and Review or the Board.6
As appellant’s March 23, 2010 reconsideration request was made within one year of the
Board’s merit decision dated April 10, 2009, the Board concludes that the request was timely. In
its April 14, 2011 decision denying appellant’s reconsideration request, OWCP applied the clear
evidence of error legal standard. This standard is the appropriate standard only for cases in
which a reconsideration request is untimely filed.7 Since OWCP erroneously reviewed the
evidence submitted by appellant in support of her reconsideration request under the clear
evidence of error standard, the Board will remand the case to OWCP for application of the
standard for reviewing a timely request for reconsideration as set forth at 20 C.F.R.
§ 10.606(b)(2).8

3

This evidence consisted of a May 26, 2008 treatment note from Randy N. Glaser, a physician’s assistant;
treatment notes dated June 25 to December 17, 2008 from Dr. Steven J. Rizzolo, a Board-certified orthopedic
surgeon; a January 28, 2009 treatment note from Dr. Alan K. Dacre, a Board-certified orthopedic surgeon; an
April 10, 2008 magnetic resonance imaging study of the lumbar spine; a June 19, 2008 tomographic study of the
pelvis, cervical spine, thoracic spine, and lumbar spine; and a procedure note for a right sacroiliac joint injection
performed by Dr. Anne Giuliano, a Board-certified radiologist, on December 8, 2008.
4

20 C.F.R. § 10.606(1).

5

D’Wayne Avila, 57 ECAB 642 (2006).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3 (October 2011).

7

See Donna M. Campbell, 55 ECAB 241 (2004).

8

Section 10.606(b)(2) provides that an application for reconsideration must show that OWCP erroneously applied
or interpreted a specific point of law, advance a relevant legal argument not previously considered by OWCP, or
include the submission of relevant and pertinent new evidence not previously considered by OWCP. 20 C.F.R.
§ 10.606(b)(2).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2011 is set aside and the case is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICES,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 14-949
Issued: August 6, 2014

Case Submitted on the Record

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

JURISDICTION
On March 20, 2014 appellant filed a timely appeal from a February 26, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 26 percent impairment to his right leg.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated March 25, 2005, the
Board noted that appellant had sustained a right knee injury on May 2, 2003 when he twisted his
knee while walking up stairs in the performance of duty.2 The accepted conditions in the case
1

5 U.S.C. § 8101 et seq.

2

Docket No. 05-153 (issued March 25, 2005).

are right knee internal derangement, right medial meniscus tear, traumatic arthropathy of the
right lower leg and right knee loose bodies. Appellant underwent right knee arthroscopic surgery
on July 2, 2003. By decision dated September 24, 2004, OWCP issued a schedule award for a 16
percent right leg permanent impairment, based on partial medial and lateral meniscectomy and
arthritis. The Board affirmed the September 24, 2004 decision, finding the evidence did not
establish a greater impairment. The history of the case as provided in the Board’s prior decision
is incorporated herein by reference.
Appellant underwent right knee surgery on March 2, 2011. He submitted a report dated
May 26, 2011 from Dr. Christopher DeLoache, an attending osteopath, who opined that
appellant has a 50 percent right leg impairment under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
Dr. DeLoache stated that the impairment was based on the meniscectomies, arthritis and
“impairment referable to his medial and lateral weight-bearing surfaces referable to one
millimeter cartilage intervals.” OWCP referred the case for a second opinion examination by
Dr. Michael Smith, a Board-certified physiatrist. In a report dated July 27, 2011, Dr. Smith
provided a history and results on examination, opining that appellant had a 28 percent right leg
permanent impairment under the A.M.A., Guides. Dr. Smith found a 15 percent impairment due
to arthritis, and 13 percent for partial meniscectomy. In a report dated August 5, 2011, an
OWCP medical adviser opined that the impairment should be 26 percent, as the 15 and 13
percent should be combined using the chart in the A.M.A., Guides, rather than simply added
together.
By decision dated August 23, 2011, OWCP issued a schedule award for an additional 10
percent for the right leg. The period of the award was 31.20 weeks from May 26, 2011.
The record indicates that appellant underwent additional right knee surgery on
May 9, 2012. In a report dated July 13, 2012, Dr. DeLoache opined that appellant had 54
percent right leg impairment. He stated that there was a mildly objective worsening of the right
knee. OWCP referred appellant for a second opinion examination by Dr. Andrew Briggeman, an
osteopath. In a report dated October 26, 2012, Dr. Briggeman opined that appellant had a 20
percent right leg impairment. By report dated November 29, 2012, an OWCP medical adviser
also opined that appellant had a 20 percent impairment. The medical adviser indicated that the
impairment was under Table 16-3 for primary knee joint arthritis.
OWCP asked Dr. DeLoache if he agreed with the medical adviser, and Dr. DeLoache
signed a brief note on December 11, 2012 indicating that he did agree with the medical adviser.
The record contains a January 8, 2013 report from a medical adviser stating that Dr. DeLoache’s
opinion of a 54 percent impairment was not accompanied by descriptive detail. In a report dated
January 14, 2013, another OWCP medical adviser stated that the weight of the evidence was
represented by Dr. Briggeman.
By decision dated January 17, 2013, OWCP found that appellant was not entitled to an
additional schedule award. On November 1, 2013 appellant submitted an October 9, 2013 report
from Dr. M. Stephen Wilson, an orthopedic surgeon, who provided a history and results on
examination. Dr. Wilson opined that, under Table 16-3, appellant had a 30 percent right leg
impairment based on Table 16-3. Dr. Smith found a 20 percent impairment for two millimeter

2

cartilage loss, and 13 percent for “grade 3 chondromalacia of both the trochlear groove and
patella.” Combining the 20 and 13 resulted in a 30 percent impairment.
In a report dated November 25, 2013, an OWCP medical adviser opined that the
impairment under Table 16-3 was 20 percent. The medical adviser noted that, under the A.M.A.,
Guides, one diagnosis is appropriate in applying Table 16-3. The medical adviser indicated that
since appellant had already received schedule awards for a 26 percent right leg impairment, he
was not entitled to an additional impairment.
By decision dated February 26, 2014, OWCP found that the medical evidence was
insufficient to establish an increased schedule award.
LEGAL PRECEDENT
Section 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
With respect to knee impairment, the A.M.A., Guides provide a regional grid at Table 163. The class of impairment (CDX) is determined based on specific diagnosis, and then the
default value for the identified CDX is determined. The default value (grade C) may be adjusted
by using grade modifiers for Functional History (GMFH, Table 16-6), Physical Examination
(GMPE, Table 16-7) and Clinical Studies (GMCS, Table 16-8). The adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).6
ANALYSIS
In the present case, OWCP accepted that appellant sustained right knee internal
derangement, right medial meniscus tear, traumatic arthropathy of the right lower leg and right
knee loose bodies as a result of a May 2, 2003 employment incident. Appellant received a
schedule award for a 16 percent right leg permanent impairment on September 24, 2004 and an
additional 10 percent on August 23, 2011. The issue presented is whether appellant has
established an increased schedule award greater than the 26 percent previously awarded.

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

A. George Lampo, 45 ECAB 441 (1994).

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

6

The net adjustment is up to +2 (grade E) or -2 (grade A).

3

Appellant submitted an October 9, 2013 report from Dr. Wilson opining that appellant
had a 30 percent impairment under Table 16-3 of the A.M.A., Guides. In this regard, the Board
notes that for the diagnosis “primary knee joint arthritis” and a class 2 moderate problem, the
default (grade C) impairment is 20 percent. The class 2 criteria is described as two millimeter
cartilage interval. Dr. Wilson then applied the net adjustment formula, using grade 2 modifiers
(“moderate problem”) for functional history and physical examination, with no modifier for
clinical studies as this factor was used for placement in the regional grid.7 As the net adjustment
formula above indicates, there would be no adjustment from the grade C default impairment of
20 percent.
Dr. Wilson then finds appellant also has an additional 13 percent impairment under Table
16-3 for “grade 3 chondromalacia of both the trochlear groove and patella.” The Board notes
that Table 16-3 does not provide a specific diagnostic criteria identified as chondromalacia. It
appears that Dr. Wilson was applying the diagnosis of patellofemoral arthritis, which has a
class 1 default value of 3 percent for full-thickness articular defect or ununited osteochondral
fracture, and 10 percent for two millimeter cartilage interval. Dr. Wilson stated that the default
impairment was 10 percent in this case.
The problem with this approach is that the A.M.A., Guides, as noted by the medical
adviser, states that in most cases, only one diagnosis in a region such as the knee will be
appropriate.8 The A.M.A., Guides state, for example, if there are two diagnoses such as ankle
instability and tibial tendinitis, the examiner should use the diagnosis with the highest
impairment rating in that region.9 Dr. Wilson does not explain why it is appropriate to use two
diagnoses in applying Table 16-3. This is particularly important here, as the two diagnoses
appear to be similar and there must be explanation as to why they represent distinct impairments
under the A.M.A., Guides.
Based on the evidence of record, the Board finds that OWCP’s medical adviser provided
the report with sound medical reasoning as to the degree of permanent impairment. The A.M.A.,
Guides do indicate that in most cases the diagnosis with the highest impairment rating should be
used in the knee regional grid, and this would result in a 20 percent impairment based on primary
knee joint arthritis. Since appellant has received schedule awards for the right leg totaling 26
percent based on the knee injury, appellant has not established entitlement to an increased
schedule award in this case.
On appeal, appellant argued that the evidence shows significant arthritic changes in his
knee and he felt that the medical adviser should have requested a second opinion examination.
The Board notes that it is appellant’s burden of proof to establish an increased schedule award.10
In this case, OWCP followed its procedures by referring the evidence to an OWCP medical

7

See A.M.A., Guides 515-16.

8

Id. at 497.

9

Id.

10

Edward W. Spohr, 54 ECAB 806, 810 (2003).

4

adviser for review.11 For the reasons noted above, OWCP’s medical adviser provided a reasoned
medical opinion that constituted the weight of the medical evidence. There was no indication
that a referral for a second opinion examination was warranted in this case.12 Appellant may at
any time submit new medical evidence showing an increased permanent impairment causally
related to the employment injury.13 Based on the evidence of record, the Board finds that
appellant has not established more than a 26 percent right leg permanent impairment.
CONCLUSION
The Board finds that the evidence does not establish more than a 26 percent right leg
permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2014 is affirmed.
Issued: August 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
12

OWCP may require an examination as frequently and at the times and places as may reasonably be required.
5 U.S.C. § 8123(a).
13

See Linda T. Brown, 51 ECAB 115 (1999).

5


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

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

Docket No. 07-1639
Issued: January 24, 2008

Oral Argument November 13, 2007

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 15, 2006 and a March 7, 2007 decision
denying her request for a hearing before an Office hearing representative. Pursuant to 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 terminated compensation for wage loss
effective March 30, 1997 for the accepted back and elbow conditions; and (2) whether the Office
properly denied appellant’s request for a hearing pursuant to 5 U.S.C. § 8124(b)(1).
FACTUAL HISTORY
The case has been before the Board on several prior appeals. In a decision dated
March 1, 2001, the Board remanded the case for a merit decision with respect to termination of
compensation.1 The Office issued a merit decision dated May 24, 2001, and by decisions dated
1

Docket No. 99-708 (issued March 1, 2001).

October 17, 2001 and August 6, 2002, the Office denied appellant’s applications for
reconsideration without merit review of the claim. The Board affirmed the August 6, 2002
decision on February 20, 2003.2 Appellant requested an oral hearing, which was denied by
Office decision dated June 5, 2003. By decision dated May 26, 2004, the Board affirmed the
June 5, 2003 Office decision.3 Appellant again requested an appeal to the Board, which was
dismissed by order dated February 17, 2005 on the grounds that the Board did not have
jurisdiction over a final decision of the Office.4 In a decision dated June 9, 2006, the Board
affirmed a May 13, 2005 decision denying appellant’s request for a hearing under 5 U.S.C.
§ 8124(b). The history of the case is provided in the Board’s prior decisions and is incorporated
herein by reference.
Appellant requested reconsideration of her claim by letter dated May 12, 2006. By
decision dated November 15, 2006, the Office reviewed the case on its merits. The Office found
that appellant was entitled to medical benefits for the accepted condition of psychogenic pain
disorder and that further development was warranted “to determine whether a psychiatric
condition is active and disabling.” The Office found that the evidence did not establish any error
in terminating compensation for wage loss in the March 19, 1997 decision.
With respect to the termination of compensation in the March 19, 1997 decision, the
Office noted that appellant had been referred to Dr. Edward Kissel, an orthopedic surgeon, for a
second opinion evaluation. In a report dated August 15, 1995, Dr. Kissel stated that there were
no objective findings of an S1 radiculopathy. He reported that leg strength was intact, straight
leg raising was negative with normal reflexes at the knees and ankles. Dr. Kissel stated that
appellant was not totally disabled and could work with a 25-pound lifting restriction. In a
supplemental report dated March 25, 1996, he again indicated that there were no objective
abnormal clinical findings associated with the complaints of pain. Dr. Kissel stated, “It is my
feeling in people who have repeated back injuries with chronic pain that it is prudent to keep
them in a light-duty weight category to prevent exacerbations of their pain and prevent recurrent
injuries.”
Appellant requested an oral hearing by letter dated December 12, 2006. By decision
dated March 7, 2007, the Office denied the hearing request, finding that appellant had already
requested reconsideration and the Office had issued a November 15, 2006 reconsideration
decision. The Office further stated that in its discretion the hearing request was further
considered and it was denied on the grounds that the issue could equally well be addressed
through the reconsideration process.

2

Docket No. 03-199 (issued February 20, 2003).

3

Docket No. 04-831 (issued May 26, 2004).

4

Docket No. 04-2116 (issued February 17, 2005).

2

LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.5 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.6
ANALYSIS -- ISSUE 1
In this case, the Office reviewed the merits of the March 19, 1997 termination decision.
Although the Office stated in its November 15, 2006 decision that the March 19, 1997
terminated both wage-loss and medical benefits, a review of the evidence indicated that the
decision was a termination of compensation for wage loss. The initial page of the March 19,
1997 decision does refer to termination of medical benefits and wage loss, without further
explanation. The notice of proposed termination dated February 6, 1997, however, discussed
only compensation for wage loss. Moreover, the hearing representative clearly stated in his
October 5, 1997 decision that appellant continued to be entitled to medical benefits. The Board
finds that the March 19, 1997 decision was a decision that terminated compensation for wage
loss effective March 30, 1997. Since the Office indicated that disability from the psychogenic
pain disorder was under development, the only issue presented is whether the Office met its
burden of proof to terminate compensation for wage loss effective March 30, 1997 based on the
accepted orthopedic conditions.
The accepted orthopedic conditions in this case were back strain, hairline fracture of the
right elbow radial head and chronic L5-S1 nerve root radiculopathy. Appellant was referred for
a second opinion examination with Dr. Kissel. In an August 16, 1995 report, he indicated that
there was no objective findings of an S1 radiculopathy and appellant could work with a 25pound lifting restriction. In the supplemental report dated March 25, 1996, Dr. Kissel stated that
there were no objective clinical findings associated with appellant’s complaints of pain. He
stated that he felt that patients with a history of repeated back injuries and chronic pain should be
kept in a light-duty capacity “to prevent exacerbations of their pain and prevent recurrent
injuries.” It is evident that Dr. Kissel felt that any orthopedic work restrictions were necessary to
prevent further exacerbations. It is well established that, under the Federal Employees’
Compensation Act, a medical restriction that is based on a fear of future aggravation due to
employment exposure is not employment related.7 Dr. Kissel clearly indicated that his work
restrictions were prophylactic in nature, to prevent recurrent injuries and there were no current
objective findings.
Appellant did not submit any probative medical evidence supporting continuing disability
causally related to her accepted back or elbow conditions. In a brief report dated June 23, 1997,
Dr. S.L. Lampkin stated that appellant was having severe low back pain that would not allow her

5

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

6

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

7

Gaetan F. Valenza, 39 ECAB 1349 (1988).

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to continue her regular employment. He did not provide any further explanation or discuss
causal relationship with employment.
The Board finds that the weight of the evidence of record establishes that appellant had
no continuing employment-related disability due to the accepted orthopedic conditions as of
March 30, 1997. The Office met its burden of proof in terminating wage-loss compensation for
these conditions. It is well established that, after termination or modification of benefits, clearly
warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to
appellant. In order to prevail, appellant must establish by the weight of the reliable, probative and
substantial evidence that she had an employment-related disability which continued after
termination of compensation benefits.8 In this case appellant did not submit any probative medical
evidence establishing a continuing employment-related disability causally related to the accepted
back or elbow injuries after March 30, 1997. Appellant did not meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides in pertinent part:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this title is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”9
The Office’s regulations provide, with respect to a request for a hearing, “The claimant
must not have previously submitted a reconsideration request (whether or not it was granted) on
the same decision.”10 The Board has held that the Office, in its broad discretionary authority to
administer the Act, has power to hold hearings in circumstances where no legal provision is
made for such hearings and the Office must exercise its discretion in such circumstances.11 The
Office’s procedures, which require the Office to exercise its discretion to grant or deny a hearing
when the request is untimely or made after reconsideration, are a proper interpretation of the Act
and Board precedent.12
ANALYSIS -- ISSUE 2
Appellant requested a hearing pursuant to 5 U.S.C. § 8124(b)(1). As noted, this section
provides for a hearing “before review under section 8128(a).” The Office’s regulations indicate
that a claimant who has requested reconsideration of a decision pursuant to 5 U.S.C. § 8128(a) is
not entitled to a hearing pursuant to 5 U.S.C. § 8124(b)(1). The Office issued a March 1997
8

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. § 10.616(a).

11

Mary B. Moss, 40 ECAB 640 (1989); Rudolph Bermann, 26 ECAB 354 (1975).

12

Teresa M. Valle, 57 ECAB ___ (Docket No. 06-438, issued April 19, 2006).

4

decision and appellant submitted numerous requests for reconsideration pursuant to 5 U.S.C.
§ 8128(a), eventually resulting in a November 15, 2006 merit decision that affirmed the
March 19, 1997 decision, in part. Since appellant requested reconsideration of the March 19,
1997 decision prior to requesting a hearing, she is not entitled to a hearing as a matter of right.
The Office must still exercise its discretionary authority with regard to the hearing
request. In the March 7, 2007 decision the Office indicated that appellant could equally well
pursue her claim through the reconsideration process. This is considered a proper exercise of the
Office’s discretionary authority.13 There is no evidence that the Office abused its discretion in
denying the request for an oral hearing.
CONCLUSION
The Office met its burden of proof to terminate compensation for wage-loss effective
March 30, 1997 for the accepted orthopedic conditions. With respect to the request for a hearing
before an Office hearing representative, the Office properly denied the request as appellant had
previously requested reconsideration of her claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 7, 2007 and November 15, 2006 are affirmed.
Issued: January 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

See Mary E. Hite, 42 ECAB 641, 647 (1991).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 14-1907
Issued: February 6, 2015

Case Submitted on the Record

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

JURISDICTION
On September 2, 2014 appellant filed a timely appeal of a May 8, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation for failure to
submit a Form EN1032, as requested.
On appeal appellant contends that she never received the Form EN1032 as it was mailed
to her old address and that she had informed OWCP of her new address.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 7, 2010 appellant, then a 41-year-old lead transportation security officer
(screener), filed a traumatic injury claim alleging that on January 30, 2010 she injured her left
shoulder while lifting a bag. OWCP accepted the claim for left shoulder calcifying tendinitis and
left shoulder sprain/strain.
On December 4, 2013 OWCP informed appellant that federal regulations required her to
make an affidavit of any earnings or employment during the previous year and that a Form
EN1032 was enclosed for that purpose. It notified her that she had to fully answer all questions
on the Form EN1032 and return the statement within 30 days or her benefits would be
suspended. The letter was sent to appellant’s last known address in Dallas, Texas. Appellant did
not respond.
By letter dated January 23, 2014, OWCP sent a second request for her to complete Form
EN1032. It noted that as of the date of the letter no completed Form EN1032 had been
submitted. OWCP informed her that this was a final request for her to fully complete and submit
the Form EN1032. It again notified her that she had to fully answer all questions on the Form
EN1032 and return the statement within 30 days or her benefits would be suspended. This letter
was also sent to appellant’s last known address in Dallas, Texas. There was no response from
appellant.
By decision dated May 8, 2014, OWCP suspended appellant’s compensation benefits,
effective June 1, 2014, for failing to submit the form as requested. It advised appellant that, if
she completed and returned an enclosed copy of the form, her compensation benefits would be
restored retroactively to the date they were suspended.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.2
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.3 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.4

2

5 U.S.C. § 8106(b).

3

20 C.F.R. § 10.528.

4

See N.G., Docket No. 12-981 (issued December 4, 2012); Lucille A. Pettaway, 55 ECAB 228, 232 (2004);
Demetrius Beverly, 53 ECAB 305, 307 (2002).

2

At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.5
ANALYSIS
On December 4, 2013 and January 23, 2014 OWCP provided appellant with a Form
EN1032 and explained that federal regulations required her to complete it and answer all
questions concerning her employment and earnings. It properly notified her that if she did not
completely answer all questions and return the statement within 30 days, her benefits would be
suspended. The notification was properly sent to appellant’s last known address.6 Appellant did
not respond prior to the May 8, 2014 decision.
Based on the evidence of record, the Board finds that OWCP properly suspended
appellant’s compensation benefits effective June 1, 2014 pursuant to 20 C.F.R. § 10.528.7
On appeal appellant contends that OWCP mailed the EN1032 form to an old mailing
address and that she had notified them of her change of address. Contrary to appellant’s
contention, the record contains no notice of her change of address at the time of the December 4,
2013 and January 23, 2014 letters or the May 8, 2014 decision.8 Thus, the Board finds that
OWCP properly mailed the notices to her last known address. Moreover, as noted above and in
both letters, her benefits would be retroactively reinstated when and if she completes and submits
the Form EN1032 to OWCP.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits for
failing to submit information on a Form EN1032, as requested.

5

Supra note 2.

6

J.J., Docket No. 13-1067 (issued September 20, 2013).

7

See J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189, 191 (1997).

8

The record reveals that appellant verified this address with a claims examiner on January 14, 2012 as prior
correspondence addressed to her Lancaster, Texas address had been returned to OWCP as undeliverable.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2014 is affirmed.
Issued: February 6, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 13-802
Issued: July 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On February 15, 2013 appellant, through her attorney, filed a timely appeal from the
November 20, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days elapsed from the most recent merit decision of
December 1, 2011 to the filing of this appeal, the Board does not have jurisdiction over the
merits of the case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In a December 1, 2011 decision, the
Board found that appellant did not establish that she sustained a traumatic injury to her left knee
1
2

5 U.S.C. § 8101 et seq.

For decisions issued on or after November 19, 2008, a claimant has 180 days to file an appeal to the Board. See
20 C.F.R. § 501.3(e).

on December 21, 2009, as alleged. The Board noted inconsistencies in the factual and medical
evidence which cast serious doubt as to whether the December 21, 2009 incident was sustained
at the time, place and in the manner alleged. The facts of the case, as set forth in the Board’s
prior decision are incorporated herein by reference.3
In a January 27, 2012 letter, appellant, through counsel, requested reconsideration before
OWCP. She submitted a January 20, 2012 report from Dr. Thomas P. Obade, a Board-certified
orthopedic surgeon, who noted having read the Board’s December 1, 2011 decision and
reiterated that he first treated appellant on December 30, 2009 at which time her predominant
problem was with her left knee. Appellant related that she was on her hands and knees under a
shelf on December 21, 2009 “when she twisted and also hit her knee, at the same time, causing
immediate pain.” Dr. Obade stated that it was now also apparent that she had pain in her back
with radiation to the left lower extremity. He stated that appellant’s description of her
mechanism of injury was certainly consistent with the findings of left knee pathology. While her
back symptoms subsided, appellant was left with significant left knee pathology for which she
had not received any prior treatment. Dr. Obade stated his opinion that the Board’s finding of an
inconsistent history was not reasonable given the short time between appellant’s injury and
diagnosis. Counsel contended that Dr. Obade’s report supported appellant’s claim of injury in
light of the fact that her knee complaints were recorded within 24 hours and that it was not
relevant that the December 21, 2009 incident was not witnessed or corroborated.
In a November 20, 2012 decision, OWCP denied appellant’s request for reconsideration.
It found that she did not raise a substantive legal question or include new and relevant evidence
sufficient to warrant further merit review. While the January 20, 2012 report of Dr. Obade was
new, it was not relevant as the physician could not resolve the various inconsistencies in
appellant’s various accounts of her injury.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered; or by constituting relevant and
pertinent evidence not previously considered.4 Evidence that repeats or duplicates evidence
already of record has no evidentiary value and does not constitute a basis for reopening a case for
merit review.5
ANALYSIS
In support of
report of Dr. Obade,
2011 decision and
December 21, 2009.

her request for reconsideration, appellant submitted the January 20, 2012
an attending orthopedic surgeon, who reviewed the Board’s December 1,
recounted appellant’s description of the mechanism of injury on
Dr. Obade stated his opinion that the decision of the Board was not

3

Docket No. 11-1040 (issued December 1, 2011). On December 28, 2009 appellant claimed injury to her left
knee on December 21, 2009.
4

20 C.F.R. § 10.606(b). See Charles A. Jackson, 53 ECAB 671 (2002).

5

See Howard A. Williams, 45 ECAB 853 (1994).

2

reasonable given the short period between the incident at work and the diagnosis of a left knee
injury within 48 hours.
The Board finds that the January 20, 2012 report of Dr. Obade is essentially duplicative
of his prior reports of record. In his initial December 30, 2009 treatment record, Dr. Obade
noted the same history that appellant was under the shelf of a cabinet when she twisted her knee
and hit it at the same time. The fact that he stated his disagreement with the Board’s
December 1, 2011 decision is not relevant to resolving the factual inconsistencies as highlighted.
Appellant has not shown that OWCP erroneously applied or misinterpreted a point of law, has
not advanced a relevant legal argument not previously considered, or constituted relevant
evidence in support of her request for reconsideration. The Board finds that OWCP did not
abuse its discretion by denying further merit review of her claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 19, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Erlanger, KY, Employer
__________________________________________

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

Docket No. 07-1930
Issued: December 26, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from November 13, 2006 and June 25,
2007 decisions of the Office of Workers’ Compensation Programs terminating his wage-loss
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
FACTUAL HISTORY
On June 21, 2004 appellant, then a 61-year-old transportation passenger screener, filed a
traumatic injury claim alleging that he injured his left leg and lower back while screening a
housekeeping buffer on a rolling stand. He tilted the buffer back, it slipped and he held the
buffer to prevent it from falling off the stand. The Office accepted appellant’s claim for a

lumbosacral sprain. It placed him on the periodic compensation rolls for temporary total
disability as of August 12, 2004. Appellant’s application for disability retirement was effective
on March 24, 2005.
In a report dated October 14, 2004, Dr. Gary L. Ray, an attending pain management and
rehabilitation specialist, stated that appellant was experiencing back and left leg pain. He noted
that appellant had experienced low back problems for 10 years. A magnetic resonance imaging
(MRI) scan of appellant’s lumbar spine revealed preexisting multilevel lumbosacral spondylosis,
facet arthropathy and multilevel mild central stenosis. Dr. Ray stated that appellant’s June 21,
2004 employment-related lumbosacral sprain had aggravated his preexisting back conditions.
On May 9, 2005 he stated that appellant continued to have tenderness in his back. Appellant had
decreased range of motion with pain on movement of the spine. Dr. Ray opined that he had
permanent work restrictions, including no lifting over 50 pounds and limited bending.
In a March 30, 2005 report, Dr. Richard T. Sheridan, a Board-certified orthopedic
specialist and Office referral physician, reviewed appellant’s medical history and provided
findings on examination. He found that appellant had no objective findings and no evidence of
radiculopathy. Dr. Sheridan opined that appellant had no residuals from his June 21, 2004 workrelated lumbosacral sprain and could return to his regular job without restrictions.
Due to a conflict in the medical opinion evidence between Dr. Ray and Dr. Sheridan as to
whether appellant continued to have residuals of his June 21, 2004 employment-related
lumbosacral sprain, the Office referred appellant, together with the case file, statement of
accepted facts and a list of questions, to Dr. John W. Wolf, Jr., a Board-certified orthopedic
surgeon, for an impartial medical examination. In an August 17, 2006 report, Dr. Wolf reviewed
appellant’s medical history and provided findings on physical examination, as follows:
“[Appellant] stands rather than sits during the medical history taking. He leans
against the examining table with his posterior thighs. [Appellant] stands
constantly in a position of flexion at his hips and low back. He is unable to walk
on his toes or heels on either the left or right side. When asked to take his shoes
and socks off, [appellant] braces himself when he lifts his right leg because he
states that he cannot trust bearing his weight on his left leg. [His] calf
circumferences are unequal. Maximum calf circumference on the right is 43
[centimeters] compared to 42 [centimeters] on the left. Right and left straight leg
raising cause low back pain. There is significant decreased range of motion of the
lumbar spine in all planes. [Appellant] cannot assume the erect position without
significant discomfort. Deep tendon reflexes are absent at the knees and ankles
bilaterally. He moves with great difficulty. There is generalized tenderness to
palpation over the entire lumbar spine. There is palpable lumbar muscle spasm.
“The evidence in the file has been carefully reviewed. It is difficult to conclude
that [appellant’s] present condition is as a result of a lumbar strain. It is more
likely that the acute lumbar strain has resolved and that his current problem is the
result of preexisting conditions, including lumbar spondylosis and facet joint
arthropathy. [Appellant] has had intermittent lumbar symptoms for a period of 10

2

years at least. It is my opinion that his current symptoms are as a result of his
previous spine problems and not directly the result of an acute lumbar strain.
“In his present condition, [appellant] is not able to perform the duties of his dateof-injury job ... without limitations. [Appellant] has limitation of motion of his
spine, pain, weakness in his left leg, inability to ambulate for any significant
length of time or distance and he is also uncomfortable sitting. These current
conditions, however, are difficult to ascribe to his work-related injury. It is my
professional opinion at this time that [appellant] is not capable of performing any
type of physical labor since he is not able to walk or sit comfortably. Based on
the findings of his MRI [scan] and the duration of his symptoms, I believe that his
condition is permanent.
“The plan of treatment for [appellant] would include weight loss, exercises and
medical pain management.... I believe that his condition will require continuing
medical treatment, but his condition is not due solely to his work-related injury.”
On August 31, 2006 the Office provided a list of questions to Dr. Wolf and asked him to
clarify his opinion regarding appellant’s accepted lumbosacral sprain and his nonwork-related
back problems.
In a supplemental report dated September 13, 2006, Dr. Wolf stated:
“You were kind enough to attach the [Federal Employees’ Compensation Act]
definitions of several terms. I have read all of the definitions and I think the one
that applies is ‘temporary aggravation.’ The definition supplied is ‘The
preexisting condition is worsened or made more severe for a time with no residual
alteration of the underlying condition and without leaving any continuing
impairment beyond that time.’ As you are aware, the MRI [scan] of [appellant’s]
lumbar spine, [dated July 6, 2004], showed chronic changes but no acute changes.
The EMG [electromyogram] performed [on November 5, 2004] indicated no
evidence of radiculopathy. An examination by John Brannan, M.D., dated
[August 26, 2005], contains the following sentence, ‘Based on [appellant’s] lack
of structural abnormalities, I am at a loss as to why he is doing so poorly from a
functional standpoint….’ [Appellant’s] accepted work-related injury was ‘lumbar
strain.’ The sequel of a lumbar strain should cease within 90 days under most
circumstances. In assessing [appellant], it is important to realize that he has had
back pain for at least 10 years.
“It is my professional opinion that [appellant’s] current problem is not a result of
a recent work-related injury. The lumbar strain that he sustained on [June 21,
2004] has resolved. I do not believe that [appellant] has any residuals from his
work injury of [June 21, 2004].
“[Appellant] is currently not capable of performing his former position; however,
I do not believe that this is due to work-related residuals. I believe this is due to

3

his underlying chronic back problem that was worsened by deconditioning and
obesity.”
On September 28, 2006 the Office advised appellant of its proposed termination of his
wage-loss compensation and medical benefits on the grounds that the weight of the medical
evidence established that he had no residuals from his June 21, 2004 employment-related
lumbosacral sprain. There was no response from appellant.
On November 13, 2006 the Office terminated appellant’s wage-loss compensation and
medical benefits on the grounds that the weight of the medical evidence established that he had
no residuals from his work-related lumbosacral sprain sustained on June 21, 2004.
On November 27, 2006 appellant requested an oral hearing before an Office hearing
representative that was held on March 27, 2007.
By decision dated June 25, 2007, an Office hearing representative affirmed the
November 13, 2006 termination decision.1
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that require further medical treatment.5
Section 8123(a) of the Federal Employees’ Compensation Act provides that “if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary [of Labor] shall appoint a third physician who shall
make an examination.”6 Where a case is referred to an impartial medical specialist for the

1

Subsequent to the June 25, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

3

Id.

4

See Del K. Rykert, 40 ECAB 284 (1988).

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).

4

purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.7
ANALYSIS
Appellant’s claim for an injury on June 21, 2004 was accepted for a lumbosacral sprain.
Due to the conflict in the medical opinion evidence between Dr. Ray and Dr. Sheridan as to
whether appellant had any continuing disability or medical condition causally related to his
accepted back condition, the Office referred him to Dr. Wolf for an impartial medical
examination.
Dr. Wolf was provided with appellant’s case file and a statement of accepted facts. He
provided a complete and accurate factual and medical history. Dr. Wolf noted that appellant had
experienced intermittent lumbar symptoms for at least 10 years. He indicated that a July 6, 2004
MRI scan of his lumbar spine showed chronic changes but no acute changes related to
appellant’s June 21, 2004 lumbosacral sprain. A November 5, 2004 EMG indicated no evidence
of radiculopathy. Dr. Wolf provided findings on physical examination that included decreased
range of motion in his lumbar spine and generalized tenderness to palpation and lumbar muscle
spasm. He opined that appellant’s work-related lumbar sprain was a temporary aggravation of
his preexisting underlying back conditions and that the lumbar sprain had resolved. Dr. Wolf
noted that the sequel of a lumbar strain generally resolved within 90 days. He opined that
appellant had no residuals from his June 21, 2004 employment-related lumbosacral sprain.
Dr. Wolf’s current symptoms were the result of preexisting conditions, including lumbar
spondylosis and facet joint arthropathy, worsened by deconditioning and obesity.
The Board finds that Dr. Wolf’s thorough and well-rationalized report is entitled to
special weight. His report establishes that appellant has no continuing disability or medical
condition causally related to his employment-related lumbosacral sprain sustained on
June 21, 2004. Therefore, the Office met its burden of proof in terminating appellant’s wageloss compensation and medical benefits based on the medical opinion of Dr. Wolf.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation and medical benefits effective November 13, 2006.

7

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 25, 207 and November 13, 2006 are affirmed.
Issued: December 26, 2007
Washington, DC

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

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

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

6