United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Washington, DC, Employer
__________________________________________

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

Docket No. 20-1087
Issued: December 31, 2020

Case Submitted on the Record

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

JURISDICTION
On April 28, 2020 appellant, through counsel, filed a timely appeal from a November 21,
2019 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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 7, 2018, as she no longer had
residuals or disability causally related to the accepted August 11, 1989 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing employment-related
disability or residuals on or after September 7, 2018.
FACTUAL HISTORY
On August 14, 1987 appellant, then a 28-year-old packer, filed a traumatic injury claim
(Form CA-1) alleging that on August 11, 1987, she injured her upper back when she was struck
from behind by a moving cart while in the performance of duty. She stopped work on August 12,
1987 and returned on August 14, 1987. Appellant stopped work again on October 27, 1987.
OWCP accepted the claim for cervical sprain and lumbosacral strain, thoracic region. It paid
appellant wage-loss compensation and placed her on the periodic rolls, effective
February 14, 1988.
In 2000 appellant returned to work in the private sector as a preschool teacher in a limitedduty capacity. OWCP reduced her wage-loss compensation benefits based on her actual wages.
The record reveals that in 2002 appellant began employment as a data entry operator. She stopped
work completely in 2006 and has not returned.
On April 25, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Mark Rowley, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding the status of her accepted
August 11, 1987 employment injury. The March 16, 2016 SOAF noted that appellant sustained
an injury to her back on August 11, 1987 while in the performance of duty.
In a May 23, 2018 report, Dr. Rowley reviewed the SOAF and the medical evidence of
record. He accurately described the August 11, 1987 employment injury and recounted appellant’s
chief complaint of low back pain. Upon physical examination of appellant’s cervical spine,
Dr. Rowley observed active range of motion without pain. He also reported 5/5 motor strength
bilaterally in the rotator cuff, deltoid, triceps, and biceps. Upon examination of appellant’s lumbar
spine, Dr. Rowley noted active range of motion with pain. He also observed 5/5 motor strength in
the hip flexors, hip extensors, quadriceps, hamstrings, and foot and ankle dorsiflexors, and
plantarflexors. Dr. Rowley summarized that appellant was a “former packer for the [employing
establishment] who allegedly injured her cervical and lumbar spine in 1987.” He opined that
appellant had no restrictions or limitations related to the accepted diagnoses of cervical sprain and
lumbar sprain. Dr. Rowley explained that these were “self-limiting injuries” and that appellant
would be expected to return to work within two to three months. He further reported that he was
unable to opine as to appellant’s work capacity due to insufficient objective information.
On August 1, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because she no longer had residuals or disability due to the accepted August 11,
1987 employment injury. It found that the weight of medical evidence rested with the May 23,
2018 report of Dr. Rowley, who found that she no longer had any residuals or disability causally

2

related to her accepted lumbar and cervical injuries. OWCP afforded appellant 30 days to submit
additional evidence or argument, in writing, if she disagreed with the proposed termination.
In an August 12, 2018 response, appellant related that she was including medical
documents to assist in her appeal of the proposed termination. She noted that she disagreed with
Dr. Rowley’s opinion because she believed her work injuries had not resolved. Appellant also
alleged that her diagnoses should include a bulging disc, herniated disc, and degenerative disc
disease. She provided a list of medical facilities that she had contacted to seek medical treatment
and a summary of previous medical reports.
Appellant submitted medical reports dated from December 19, 2008 through
May 29, 2009. OWCP also received diagnostic studies, including a May 4, 2006 cervical spine
magnetic resonance imaging (MRI) scan report and a December 6, 2006 lumbar spine MRI scan
report.
In an August 26, 2018 letter, appellant asserted that terminating her benefits and returning
her to work would place her at risk of reinjury. She also requested that OWCP review additional
information, which showed that she was diagnosed with degenerative disc disease. Appellant
submitted an August 15, 2018 after visit summary report by Dr. Tammy L. Boyd, a Board-certified
family medicine specialist, and an August 20, 2018 letter to Dr. Rowley.
By decision dated September 7, 2018, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective that date. It found that the weight of
medical evidence continued to rest with Dr. Rowley, OWCP’s second opinion examiner, who
concluded in his May 23, 2018 report that appellant had no residuals or disability causally related
to her accepted August 11, 1987 work-related injury.
Appellant subsequently submitted additional medical evidence.
In an October 1, 2018 letter, Dr. Boyd reported that findings were consistent with cervical
spondylosis, lumbar spondylosis, and degenerative disc disease as noted on recent x-ray scans.
In reports dated November 6 and 30, 2018, Dr. Mary Bodea, a Board-certified physical
medicine and rehabilitation specialist, reviewed appellant’s history and recounted her complaints
of constant low back pain radiating intermittently to both legs. She conducted a physical
examination and provided various diagnoses, including cervical region radiculopathy and
spondylosis and lumbar radiculopathy.
Appellant also submitted an October 31, 2018 after visit summary report by Dr. David
Clark, Jr., a Board-certified emergency medicine specialist, and a November 27, 2018 pain
management assessment by Dr. Henry A. Pool, a Board-certified neurosurgeon.
OWCP also received diagnostic testing reports. A September 21, 2018 cervical spine xray showed moderate spondylosis and no instability on flexion and extension. A September 21,
2018 lumbar spine x-ray showed mild spondylosis of the lumbar spine and degenerative disc
disease worse at the L4-5 level. An October 16, 2018 cervical spine MRI scan revealed left
paracentral and foraminal disc osteophyte at C5-6 and mild broad-based disc bulge with a small

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central disc protrusion at C4-5. A November 16, 2018 lumbar spine MRI scan revealed mild spinal
stenosis at L3-4 and moderate-to-severe spinal stenosis at L4-5 with disc bulging.
On September 6, 2019 appellant requested reconsideration. She alleged that her
reconsideration request was based on the fact that her residuals had not resolved from the 1987
work-related injury. Appellant also asserted that Dr. Rowley’s report was insufficient in objective
findings to carry the weight of the medical evidence. She provided a history of injury and a
timeline of the medical treatment that she had received.
In a September 5, 2019 letter, Dr. Boyd reported a history of unbearable back pain
precluding full or part-time work. She reported that appellant’s findings were consistent with
cervical spondylosis, lumbar spondylosis, and degenerative disc disease as noted on recent
imaging studies.
By decision dated November 21, 2019, OWCP denied modification of the September 7,
2018 termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
termination or modification of benefits.3 It may not terminate compensation without establishing
either that the disability has ceased or that it is no longer related to the employment.4 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.5
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF.6 Its procedures provide that the claims examiner is responsible
for ensuring that the SOAF is correct, complete, unequivocal, and specific. It should include a
complete record of all pertinent facts related to the injury or medical condition. The omission of
a critical fact diminishes the validity of a medical opinion or decision as much as an incorrect
statement.7 When an OWCP medical adviser, second opinion specialist, or referee physician
renders a medical opinion based on a SOAF which is incomplete or inaccurate, or does not use the

3

A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
4
A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54
ECAB 734 (2003).
5

R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

N.W., Docket No. 16-1890 (issued June 5, 2017); K.V., Docket No. 15-0960 (issued March 9, 2016).

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4(a)(2)
(September 2009).

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SOAF as the framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.8
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 7, 2018.
OWCP terminated appellant’s wage-loss compensation and medical benefits based on the
May 23, 2018 report of Dr. Rowley, an OWCP second opinion examiner. Dr. Rowley accurately
described the August 11, 1987 employment injury and provided examination findings. He opined
that appellant had no restrictions or limitations related to the accepted diagnoses of cervical sprain
and lumbar sprain. Dr. Rowley explained that these were “self-limiting injuries” and that appellant
would be expected to return to work within two to three months. He also reported that he was
unable to opine on appellant’s work capacity due to insufficient objective information.
The Board finds that Dr. Rowley’s opinion was conclusory in nature and did not contain
sufficient medical reasoning to establish that appellant no longer had residuals or disability due to
her August 11, 1987 employment injury.9 In assessing medical evidence, the number of physicians
supporting one position or another is not controlling; the weight of such evidence is determined
by its reliability, its probative value, and its convincing quality.10 The factors that determine the
probative value of medical evidence include the opportunity for and thoroughness of examination
performed by the physician, the accuracy or completeness of the physician’s knowledge of the
facts and medical history, the care of analysis manifested, and the medical rationale expressed by
the physician on the issues addressed to him by OWCP.11
The Board finds that Dr. Rowley’s report lacks sufficient medical reasoning to establish
that appellant’s accepted conditions had resolved. Dr. Rowley opined that appellant had no
restrictions or limitations related to her cervical and lumbar sprains and explained that these were
“self-limiting injuries. He did not give any medical explanation as to how appellant’s physical
examination established that her accepted conditions had resolved. Rationalized medical evidence
must include rationale explaining how the physician reached the conclusion he or she is
supporting.12 In addition, Dr. Rowley did not definitively conclude that appellant was able to
return to work. On the contrary, he specifically noted that he was unable to opine on appellant’s
work capacity due to a lack of objective information.13 Dr. Rowley did not provide an opinion

8

Id. at Chapter 2.809.4(a)(4); M.C., Docket No. 18-1199 (issued April 5, 2019).

9

See J.W., Docket No. 19-1014 (issued October 24, 2019); S.B., Docket No. 18-0700 (issued January 9, 2019);
S.J., Docket No. 17-0543 (issued August 1, 2017).
10

D.W., Docket No. 18-0123 (issued October 4, 2018); Nicolette R. Kelstrom, 54 ECAB 570 (2003).

11

A.G., Docket No. 19-0220 (issued August 1, 2019); James T. Johnson, 39 ECAB 1252 (1988).

12

B.B., Docket No. 19-1102 (issued November 7, 2019); Beverly A. Spencer, 55 ECAB 501 (2004).

13

See R.K., Docket No. 19-1980 (issued May 7, 2020).

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with sufficient medical reasoning to establish that appellant no longer had residuals or disability
due to her accepted August 11, 1987 employment injury.14
Furthermore, the Board finds that Dr. Rowley’s opinion was based on an inaccurate history.
The March 28, 2016 SOAF provided to him did not list appellant’s accepted conditions of cervical
sprain and lumbosacral strain of the thoracic region, but merely noted that appellant sustained a
back injury at work on August 11, 1987. As noted, a SOAF should include a complete record of
all pertinent facts related to the medical condition.15 OWCP’s procedures provide that the SOAF
should include essential elements, such as date of injury, job held on date of injury, employment
history, mechanism of injury, and condition(s) claimed or accepted.16 When an OWCP medical
adviser, second opinion specialist, or referee physician renders a medical opinion based on a SOAF
that is incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her
opinion, the probative value of the opinion is seriously diminished or negated altogether.17
Once OWCP undertook development of the record it was required to complete
development of the record by procuring medical evidence that would resolve the relevant issue in
the case.18 As it did not request that Dr. Rowley provide a supplemental opinion based on an
accurate SOAF and clarifying his opinion, the Board finds that OWCP has not met its burden of
proof in terminating appellant’s wage-loss compensation and medical benefits based on
Dr. Rowley’s May 23, 2018 report.19
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 7, 2018.

14

J.W., supra note 9; S.B., supra note 9; S.W., Docket No. 18-0005 (issued May 24, 2018).

15

Supra note 7.

16

Id. at Chapter 2.809.5.

17

Supra note 8.

18

See J.F., Docket No. 17-1716 (issued March 1, 2018).

19

See M.P., Docket No. 20-0024 (issued September 1, 2020); D.M., Docket No. 19-0749 (issued August 19, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the November 21, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saddle Brook, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1495
Issued: March 30, 2022

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 August 3, 2020 appellant, through counsel, filed a timely appeal from a March 6, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The case record contains August 13, 2019 and January 16, 2020 decisions in which OWCP denied appellant’s
request that the acceptance of her claim be expanded to include additional cervical conditions causally related to her
accepted February 24, 2015 employment injury. As more than 180 days has elapsed from the issuance of these
decisions to the filing of this appeal, the Board lacks jurisdiction over the denial of appellant’s expansion claim. See
20 C.F.R. §§ 501.2(c) and 501.3.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 22, 2018, as she no longer had
disability or residuals causally related to her accepted February 24, 2015 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing disability or residuals
after September 22, 2018 causally related to her accepted February 24, 2015 employment injury.
FACTUAL HISTORY
On March 2, 2015 appellant, then a 23-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 24, 2015 she sustained a back injury when she slipped and
fell on ice while in the performance of duty. She stopped work on February 25, 2015. In
March 2015 appellant first returned to work after her original work stoppage and, in May 2015,
she stopped work again. OWCP paid her wage-loss compensation for disability from work on the
supplemental rolls for the period May 18 through December 22, 2015.
On January 14, 2016 Dr. Marc Cohen, a Board-certified orthopedic surgeon, performed
OWCP-authorized back surgery, including open laminectomy and lateral recess decompression at
L5-S1, and posterolateral discectomy at L3-4 and L5-S1. In April 2016 appellant returned to lightduty work on a full-time basis.
OWCP accepted appellant’s claim for intervertebral disc disorders of the lumbosacral
region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of the cervical
region.
In a November 5, 2017 report, Dr. Michael Binder, a Board-certified anesthesiologist,
noted that appellant primarily complained of neck and lower back pain. He indicated that, upon
physical examination, appellant exhibited diminished range of motion of the cervical and lumbar
spine. Dr. Binder diagnosed left cervical post-traumatic sprain/strain; left cervical radiculopathy
at C6 versus bilateral cervical post-traumatic facet syndrome at the C4-5, C5-6, and C6-7; lumbar
post-traumatic sprain/strain; and left lumbar radiculopathy at L3-4 versus bilateral lumbar posttraumatic facet syndrome at the L3-4, L4-5, and L5-S1. He opined that these conditions were
related to the February 24, 2015 employment injury.
In March and July 2018 OWCP referred appellant for second opinion examinations and
evaluations with Dr. Melvin Vigman, a Board-certified neurologist, and Dr. Andrew Farber, a
Board-certified orthopedic surgeon. It provided each physician with a statement of accepted facts
(SOAF) and a series of questions and requested that they provide an opinion regarding whether
appellant continued to have disability or residuals causally related to her accepted February 24,
2015 employment injury.
In an April 5, 2018 report, Dr. Vigman discussed appellant’s factual and medical history,
noting that the SOAF indicated that the accepted conditions were “intervertebral discs disorders
with radiculopathy, lumbar region L3-4 and L4-5 and cervical region and dorsopathy.” He further
noted, “I presume that means dorsal spine.” Dr. Vigman advised that appellant currently
complained of back pain and shooting pain into the left lateral thigh. He reported the findings of
the physical examination he performed on April 4, 2018, noting that appellant’s upper extremity
examination showed normal strength in all muscle groups proximally and distally, normal
2

cutaneous sensation at dermatomes C5 through C8, and 1+ reflexes. On lower extremity
examination, appellant had normal strength in all muscle groups proximally and had normal
cutaneous sensation dermatomes L3 through S1 bilaterally. Dr. Vigman noted that, on flexing her
lower back to 90 degrees, appellant complained of left paraspinal discomfort. He provided a
diagnosis of no neurological disease, damage, or dysfunction.
After his review of the medical records, Dr. Vigman opined that there did not appear to
have been a true indication for the January 14, 2016 lumbar surgery. He indicated that the
magnetic resonance imaging (MRI) scans of record obtained on the date of injury demonstrated a
normal lumbar MRI scan and did not indicate that there were herniated lumbar discs and did not
confirm central spinal stenosis. Dr. Vigman maintained that these diagnoses were used to justify
the surgery, but that the surgery was not done for neurological purposes. He indicated that the
“objective aspects of the case are totally normal neurologically” and did not support the subjective
symptomatology. Dr. Vigman indicated that the lumbar spine MRI scans of record “did not
support neurological problems in this case.” He noted “the current diagnoses” from a neurological
standpoint did not exist and there was no neurological diagnosis, neurological damage, or
dysfunction. Dr. Vigman indicated, “[i]n my opinion, the question of the work-related conditions
having resolved: the work-related conditions never caused a neurological problem. Appellant has
reached maximum medical improvement [MMI] neurologically with no permanency.”
Dr. Vigman noted that, from a neurological standpoint, appellant was capable of full-time work
without any restrictions. In an April 4, 2018 work capacity evaluation (Form OWCP-5c), he
indicated that appellant was able to perform her regular job without restrictions.
In a July 2, 2018 report, Dr. Farber discussed appellant’s factual and medical evidence,
noting that she continued to complain of radicular symptoms in her left upper and left lower
extremities. He noted that, upon physical examination of the cervical spine, appellant was
nontender about the cervical spine and had a negative Spurling’s test. Upon examination of the
lumbar spine, there was no erythema or evidence of infection around the incision area from the
January 14, 2016 lumbar surgery and straight leg raising was negative bilaterally. Dr. Farber did
not find neurovascular deficits of the extremities. He indicated that appellant was not presently
suffering from disabling residuals of the accepted conditions and did not have a “current disability
based on the examination of today.” Dr. Farber concluded that appellant did not require further
medical treatment as she had reached MMI and was capable of returning to her date-of-injury work
without restrictions. In a July 2, 2018 Form OWCP-5c, he indicated that appellant was able to
perform her regular job without restrictions.
OWCP then requested that Dr. Farber clarify his July 2, 2018 report by providing a more
detailed discussion regarding appellant’s work-related residuals and disability. In a July 25, 2018
supplemental report, Dr. Farber indicated that appellant was not presently suffering from disabling
residuals of the accepted conditions based upon the July 2, 2018 physical examination. He noted
that, upon examination of the cervical spine, she was nontender about the cervical spine, range of
cervical motion was normal in all planes, and Spurling’s test was negative. Examination of the
lumbar spine revealed no erythema or evidence of infection and normal range of motion during
extension and side bending. Dr. Farber advised that flexion was decreased, a finding he believed
was normal given that appellant was status post lumbar laminectomy. Appellant had negative
straight leg raise bilaterally and there was no evidence of radiculopathy on examination.
Dr. Farber indicated that appellant had reached MMI and there was no need for further treatment.
He opined that appellant was not disabled and was capable of returning to her date-of-injury job
without restrictions.
3

In a notice dated July 26, 2018, OWCP advised appellant that it proposed to terminate her
entitlement to wage-loss compensation and medical benefits as she no longer had residuals or
disability causally related to her accepted February 24, 2015 employment injury. It informed her
that the weight of the medical opinion evidence regarding work-related residuals/disability rested
with the opinions of Dr. Vigman and Dr. Farber, OWCP’s referral physicians. OWCP provided
appellant 30 days to submit evidence and argument challenging the proposed termination action.
Appellant submitted an August 20, 2018 report in which Dr. Cohen indicated that, after the
January 14, 2016 surgery, she did have improvement with reduction in some of her leg pain , but
still had residual issues with respect to numbness and intermittent pain in the left leg. Dr. Cohen
further explained, “[u]nfortunately the patient was left with persistent back and left leg
radiculopathy…. She had pain going from the buttocks to the thigh to the calf to the foot with
associated tingling and numbness.” Dr. Cohen noted that appellant was left with a two-level
lumbar disc surgery that caused “functional and work-related permanency” with respect to her
ability to forward and laterally bend, to lift, and to sit or stand in one position for any extreme
period. Regarding appellant’s post-surgery condition, he opined that appellant’s injuries were
permanent in nature and that appellant was unable to return back to her job without restrictions.
Dr. Cohen noted that he was completely in disagreement with the opinions of Dr. Vigman and
Dr. Farber, which had been provided to him.
By decision dated September 21, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective September 22, 2018, as she no longer had disability
or residuals causally related to her accepted February 24, 2015 employment injury.
On October 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During a hearing held on January 29,
2019, counsel argued that the opinions of Dr. Vigman and Dr. Farber were not well rationalized,
or in the alternative, there was a conflict in the medical opinion evidence between their reports and
those of appellant’s attending physicians, Dr. Binder and Dr. Cohen.
OWCP received a January 3, 2019 report from Dr. Joseph W. Dryer, a Board-certified
orthopedic surgeon, who indicated that appellant did not sustain any permanent lumbar injuries
due to the February 24, 2015 accident.
By decision dated April 4, 2019, OWCP’s hearing representative affirmed the
September 21, 2018 termination decision.4
By decision dated March 6, 2020, OWCP denied modification of its April 4, 2019
termination decision.

4

OWCP’s hearing representative also found that there was a conflict in the medical opinion evidence regarding
appellant’s expansion claim and remanded the case to OWCP for further development, including referral of appellant
for an impartial medical examination. Based on the July 18, 2019 report of Dr. Lydia Shajenko, a Board-certified
neurologist serving as an impartial medical examiner (IME), OWCP issued August 13, 2019 and January 16, 2020
decisions denying appellant’s request that the acceptance of her claim be expanded to include additional cervical
conditions causally related to her accepted February 24, 2015 employment injury. As noted above, the Board lacks
jurisdiction over the denial of appellant’s expansion claim. See supra note 3.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.
In his April 5, 2018 report, Dr. Vigman determined that appellant did not have any
residuals of her accepted employment injuries and could return to her date -of-injury job without
restrictions. However, he did not provide any notable discussion of the conditions accepted in
connection with the February 24, 2015 employment injury, i.e., intervertebral disc disorders of the
lumbosacral region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of
the cervical region. Dr. Vigman did not provide any discussion of when and how the accepted
employment injuries had resolved.
Moreover, in portions of his report, Dr. Vigman suggested that appellant did not actually
sustain all of the accepted employment conditions. He noted, “[i]n my opinion, the question of
the work-related conditions having resolved: the work-related conditions never caused a
neurological problem.” Dr. Vigman indicated that the magnetic resonance imaging (MRI) scans
of record obtained on the date of injury demonstrated a normal lumbar MRI scan and did not
indicate that there were herniated lumbar discs and therefore did not confirm central spinal
stenosis. However, OWCP had accepted that appellant sustained a lumbar condition that could be
characterized as having caused a neurological problem, i.e., the accepted lumbar radiculopathy
stemming from the L3-4 and L5-S1 discs. In addition, Dr. Vigman provided an opinion that the
January 14, 2016 lumbar surgery, which was authorized by OWCP was not necessitated by an
accepted employment injury. The Board has held that the findings of an OWCP referral physician
or IME must be based on the factual underpinnings of the claim, as set forth in the SOAF. 8
OWCP’s procedures provide that when an OWCP referral physician, IME, or district medical
adviser (DMA) renders a medical opinion based on an SOAF, which is incomplete or inaccurate
or does not use the SOAF as the framework in forming his or her opinion, the probative value of

5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See A.D., Docket No. 20-0553 (issued April 19, 2021).

5

the opinion is seriously diminished or negated altogether. 9 Given his failure to acknowledge all
the accepted employment conditions, Dr. Vigman’s opinion is of diminished probative value.
The Board further finds that Dr. Farber’s opinion also is not sufficiently well-rationalized
to justify the termination of appellant’s entitlement to wage-loss compensation and medical
benefits, effective September 22, 2018. Dr. Farber indicated, in reports dated July 2 and 25, 2018,
that appellant did not have any residuals of her accepted employment injuries and could return to
her date-of-injury job without restrictions. However, his opinion in this regard consisted of brief
conclusory statements without adequate explanation. Dr. Farber also did not provide any notable
discussion of the conditions accepted in connection with the February 24, 2015 employment injury
or explain when and how these conditions had resolved. In fact, in a portion of his July 25, 2018
report, he suggested that appellant still had residuals of the OWCP-authorized January 14, 2016
lumbar surgery. Dr. Farber advised that appellant’s lumbar flexion was decreased, a finding he
believed was related to that lumbar surgery. After Dr. Farber produced his July 2, 2018 report,
OWCP requested that he provide a supplemental report, which included a more detailed discussion
regarding appellant’s work-related residuals and disability. However, the July 25, 2018
supplemental report did not provide significant additional discussion in this regard and essentially
summarized examination findings contained in his July 2, 2018 report.
For these reasons, the Board finds that OWCP did not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective September 22, 2018.10
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3a(10)
(October 1990).
10

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

6

ORDER
IT IS HEREBY ORDERED THAT the March 6, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 30, 2022
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Barstow, CA, Employer
__________________________________________

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

Docket No. 07-1848
Issued: December 10, 2007

Case Submitted on the Record

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

JURISDICTION
On June 4, 2007 appellant filed a timely appeal of the March 7, 2007 nonmerit decision
of the Office of Workers’ Compensation Programs, which denied her request for a hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not have jurisdiction over the
merits of the claim.1
ISSUE
The issue is whether the Branch of Hearings & Review properly denied appellant’s
request for a hearing.
FACTUAL HISTORY
Appellant, a 56-year-old retired supply systems analyst, has an accepted occupational
disease claim for bilateral carpal tunnel syndrome which arose on or about February 20, 2001.
1

The last merit decision in the claim was issued May 11, 2004, which is more than one year prior to the filing of
the current appeal.

She underwent a left carpal tunnel release on March 28, 2002, followed by a right carpal tunnel
release on May 9, 2002. Both surgical procedures were approved by the Office.
On January 3, 2003 appellant received schedule awards for 10 percent impairment of the
right upper extremity and 10 percent impairment of the left upper extremity. However, this was
modified on July 1, 2003 to reflect a 12 percent impairment of the left upper extremity and
10 percent impairment of the right upper extremity. On May 11, 2004 the Office granted an
additional schedule award for both the left and right upper extremities, increasing appellant’s
overall impairment to 33 percent to each upper extremity. This latest award covered 137.28
weeks from February 2, 2004 to September 19, 2006.
On October 17, 2006 appellant filed a Form CA-7 requesting an additional schedule
award. However, she did not submit any additional medical evidence addressing any increased
impairment. On November 17, 2006 the Office advised appellant that she needed to obtain a
current examination and impairment rating from her treating physician in order to process her
recent claim for a schedule award. Appellant did not submit the requested medical information,
but instead filed another claim for a schedule award (Form CA-7) on December 9, 2006.
By letter dated January 10, 2007, the Office acknowledged receipt of the December 9,
2006 CA-7 form and advised appellant that a decision regarding her entitlement to a schedule
award had been issued May 11, 2004. The Office provided a copy of the earlier decision and
explained that if appellant disagreed with the decision she could exercise her appeal rights.
In a letter to the claims examiner dated January 21, 2007, appellant requested a review of
the written record. She also submitted the appeal request form that accompanied the May 11,
2004 schedule award decision.2 The Office received both documents on January 26, 2007.
By decision dated March 7, 2007, the Branch of Hearings & Review denied appellant’s
request for review of the written record because it was untimely. Appellant was also denied a
discretionary hearing. The Branch of Hearings & Review advised that she could pursue her
claim for a schedule award by requesting reconsideration before the Office.
LEGAL PRECEDENT
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or a review of the written record.3 A request for either an oral hearing or a
review of the written record must be submitted, in writing, within 30 days of the date of the
decision for which a hearing is sought.4 If the request is not made within 30 days, a claimant is
not entitled to an oral hearing or a review of the written record as a matter of right. Although a

2

The appeal request form was dated “January 23, 2006.”

3

5 U.S.C. § 8124(b) (2000); 20 C.F.R. § 10.616(a) (2007).

4

20 C.F.R. § 10.616(a).

2

claimant may not be entitled to a hearing as a matter of right, the Office has discretionary
authority to either grant or deny a hearing request and the Office must exercise its discretion.5
ANALYSIS
Appellant’s January 2007 request for review of the written record was received more than
2½ years after the Office issued its May 11, 2004 schedule award. Because of the untimely
nature of the request, appellant is not entitled to a hearing as a matter of right. In its March 7,
2007 decision, the Branch of Hearings & Review also denied appellant’s request for a hearing on
the grounds that the pertinent issue could be addressed by requesting reconsideration and
submitting additional relevant evidence. This particular basis for denying appellant’s request is
considered a proper exercise of discretionary authority.6 Moreover, there is no evidence in the
case record indicating that the Branch of Hearings & Review otherwise abused its discretion in
denying appellant’s hearing request. Accordingly, the Board finds that the Office properly
exercised its discretion in denying appellant’s request for a hearing.
CONCLUSION
The Branch of Hearings & Review properly denied appellant’s request for a hearing.

5

See Herbert C. Holley, 33 ECAB 140 (1981).

6

Mary B. Moss, 40 ECAB 640, 647 (1989).

3

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2007
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Springfield, IL, Employer
__________________________________________

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

Docket No. 10-1414
Issued: April 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 28, 2010 appellant filed a timely appeal from an April 1, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act,1 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 a seven percent impairment of his right
upper extremity, for which he previously received a schedule award.
On appeal appellant argues that he was entitled to a greater schedule award. He contends
that the Office did not consider a more recent medical report that indicated that he had a 29
percent impairment of his right upper extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 26, 2007 appellant, then a 52-year-old clerk, filed an occupational disease
claim alleging that, as a result of repetitive working on mailing and keying on a linear integrated
parcel sorter machine, he sustained a pinched nerve in his right hand. On February 27, 2008 the
Office accepted his claim for lesion of right ulnar nerve. On June 13, 2008 it expanded
acceptance of appellant’s claim to include aggravation of osteoarthrosis hand and osteoarthrosis
forearm. On May 13, 2008 appellant underwent a right Guyon canal release and a right cubital
tunnel release.
On October 30, 2008 appellant filed a claim for a schedule award.2 In support thereof, he
submitted results of tests conducted on October 17, 2008 wherein the registered and licensed
occupational therapist determined that appellant had 29 percent impairment to his right upper
extremity. In a narrative report by an unknown author with regard to these tests, it is indicated
that, pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001), the grip strength measurements that were measured on October 17,
2008 were invalid as appellant exerted less than maximal effort.
In a July 9, 2009 report, Dr. Michael Neumeister, appellant’s treating Board-certified
plastic surgeon with a subspecialty in surgery of the hand, noted that there was no documentation
of elbow pain. He noted that the flexion on the affected side was 145 degrees, extension was 10
degrees, forearm pronation was 70 degrees, supination was 60 degrees and that there was no
anklyosis of the elbow or forearm. Dr. Neumeister noted Jamar measurements for the thumb of
5 pounds on the right and 7 pounds on the left, for the second finger 8 pounds on the right versus
10 pounds on the left, for the third finger 8 pounds on the right versus 10 pounds on the left, for
the fourth finger 7 pounds on the right versus 10 pounds on the left, and for the fifth finger 7
pounds on the right versus 8 pounds on the left. He listed appellant’s date of maximum medical
improvement as October 8, 2008.
On September 10, 2009 the Office forwarded appellant’s file to the Office medical
adviser for a permanent impairment evaluation. The Office medical adviser determined that
pursuant to the A.M.A., Guides (6th ed. 2009) appellant had a four percent impairment due to
loss of motion at the right elbow. In reaching this conclusion, he applied the A.M.A., Guides,
page 474, Figure 15-33. The Office medical adviser evaluated the range of motion
measurements and noted that flexion of 140 degrees equaled a zero percent impairment, 10
degrees of extension equaled a two percent impairment, 70 degrees of pronation equaled a one
percent impairment and 60 degrees of supination equaled a one percent impairment for a total
impairment of four percent of the right upper extremity for loss of range of motion to the right
elbow. He noted that Dr. Neumeister did not report elbow or hand ankylosis.
In a decision dated December 2, 2009, the Office found that the record did not support an
increase in impairment to appellant’s right upper extremity from the seven percent previously
awarded.
2

The Office previously accepted appellant’s claim for bilateral trigger thumb and bilateral tenosynovitis of the
hands in Office File No. xxxxxx269. It granted him a schedule award for seven percent impairment of the right
upper extremity.

2

On December 7, 2009 appellant requested review of the written record.
By decision dated April 1, 2010, the hearing representative affirmed the Office’s
December 2, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on functional history (GMFH), physical examination (GMPE) and clinical
studies (GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).10
The Office’s procedures provide that, after obtaining all necessary medical evidence, the
file should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides. The Office medical adviser is
to provide rationale for the percentage of impairment specified.11

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See Ronald R. Kraynak 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

6

20 C.F.R. § 10.404 (1999).

7

FECA Bulletin No. 09-93 (issued March 15, 2009).

8

A.M.A., Guides, supra note 7 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
9

Id. at 385-419.

10

Id. at 411.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010).

3

ANALYSIS
The Office accepted appellant’s claim for lesion of the right ulnar nerve, aggravation of
osteoarthritis and osteoarthrosis forearm. Appellant’s surgeon, Dr. Neumeister, evaluated
appellant’s condition in a July 9, 2009 report, noting appellant’s range of motion limitations.
However, he did not provide a recommendation with regard to appellant’s permanent impairment
under the sixth edition of the A.M.A., Guides. It is well established that, when the examining
physician does not provide an estimate of impairment conforming to the proper edition of the
A.M.A., Guides, the Office may rely on the impairment rating provided by the medical adviser.12
The Office medical adviser rated appellant’s impairment pursuant to Table 15-33 of the sixth
edition of the A.M.A., Guides. The Office medical adviser reviewed Dr. Neumeister’s July 9,
2009 report and concluded that flexion of 140 degrees equaled a zero percent impairment,
extension of 10 degrees equaled a two percent impairment, pronation of 70 degrees equaled a
one percent impairment and supination of 60 degrees equaled a one percent impairment for a
total four percent impairment of the right upper extremity due to loss of range of motion.
The Board finds that the medical adviser’s impairment rating is incomplete and requires
further clarification. Section 15.2 of the sixth edition of the A.M.A., Guides provides that range
of motion is used primarily as a physical examination adjustment factor and only used to
determine actual impairment values when a grid permits its use as an option and diagnosis-based
impairment is the primary method of evaluation for the upper limb.13 Range of motion may be
used for rating impairment in the following two situations:
1. For amputation ratings, deficits of motion for the remaining portion of the limb,
maybe combined with the amputation impairment.
2. In very rare cases, severe injuries may result in passive range of motion losses
qualifying for Class 3 or 4 impairment. If the active range of motion impairment
percentage is greater than the percentage impairment derived from the diagnosisbased class, then the impairment is rated by range of motion as a stand[-]alone
rating. This range of motion for the impairment may only be used if the active
range of motion is within 10 degrees of the passive range of motion measured.
The active range of motion measurement is what determines the final impairment
rating. Examples include complex flexor or extension tendon or multiple tendon
laceration injuries severe crush injuries, residual compartment syndrome or other
conditions having significant functional loss.14
In this case, the Office medical adviser did not explain how appellant’s injury fell into
either of these categories. He did not explain why he used the range of motion analysis, rather
than the diagnosis-based analysis found under the sixth edition of the A.M.A., Guides.
Accordingly, the Board will remand this case for further development of the evidence. On
12

See J.Q., 59 ECAB 366 (2008).

13

A.M.A., Guides 387.

14

Id. at 461.

4

remand, the medical adviser should fully explain why he did not use a diagnosis-based estimate
to evaluate appellant’s impairment. He should address the medical evidence consistent with the
protocols for determining upper extremity impairment. After such development as it deems
necessary, the Office shall issue an appropriate decision on appellant’s claim for a schedule
award.
Although the Board remands this case for further evaluation under the A.M.A., Guides,
the Board finds that appellant’s argument that his impairment rating should be based on the
October 17, 2008 test results to be without merit. The Board notes that the Office’s decision was
based on the Office medical adviser’s September 12, 2009 evaluation of the July 9, 2009 report
of Dr. Neumeister, appellant’s surgeon. Accordingly, the October 17, 2008 test results are not
more recent, as alleged. Furthermore, the October 17, 2008 tests were conducted by an
occupational therapist; an occupational therapist is not a physician under the Act.15 In addition,
these test results do not refer to the A.M.A., Guides, and the accompanying narrative indicates
that the fifth edition of the A.M.A., Guides was applied. However, as the decision was issued on
April 1, 2010, the sixth edition of the A.M.A., Guides were appropriate.16 Finally, the narrative
report questions whether appellant exerted his maximal effort in taking the test.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

See 5 U.S.C. § 8101(2); David P. Sawchuk, 57 ECAB 316 (2005); A.C., Docket No. 08-1453 (issued
November 18, 2008).
16

FECA Bulletin No. 09-93 (issued March 15, 2009); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(a) (January 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 1, 2010 is set aside and the case remanded for further
proceedings consistent with this decision.
Issued: April 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Green Bay, WI, Employer
__________________________________________

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

Docket No. 11-1245
Issued: February 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 26, 2011 appellant, through her attorney, filed a timely appeal of a March 17,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) affirming the prior
termination of her wage loss and medical compensation benefits and affirming prior denials of
compensation benefits following the termination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective December 13, 2006 on the grounds that accepted
lumbar myalgia had ceased without residuals; and (2) whether appellant has met her burden of
proof in establishing that she was totally disabled for work on and after December 13, 2006
causally related to accepted lumbar myalgia.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel asserts that OWCP’s March 17, 2011 decision is “contrary to fact and
law.”
FACTUAL HISTORY
This is the second appeal before the Board in this case. By order issued October 26, 2010
under File No. xxxxxx197, the Board set aside OWCP’s June 10, 2009 decision denying a
request for a merit review. OWCP based its denial on evidence from a digital video disc (DVD)
that was not included in the record. The Board remanded the case to OWCP for reconstruction
of the record, including obtaining a complete copy of the evidence appearing on the DVD and
incorporating these documents into the case record.2
OWCP accepted that on or before September 1, 2003 appellant, then a 35-year-old rural
letter carrier, sustained lumbar myalgia due to driving her delivery route and lifting mail.3 It
assigned the claim File No. xxxxxx197.4 Appellant resigned from the employing establishment
effective August 27, 2005 and did not return. She claimed wage-loss compensation from
August 1, 2005 to August 25, 2006.5
Appellant was followed by several physicians. Dr. William L. Van Dorp, an attending
Board-certified physiatrist, submitted reports from July 2004 to April 2006 finding appellant
totally disabled for work due to lumbar myofascial pain.6 Dr. Brenda J. Dierschke, an attending
Board-certified physiatrist, noted on August 14, 2006 that appellant used medications and a
transcutaneous electrical stimulation (TENS) unit for back pain. In a February 17, 2004 report,
Dr. Stephen M. Gutting, an attending Board-certified neurosurgeon, noted a history of back pain
with radiculopathy beginning in September 2003.
On June 29, 2006 OWCP obtained a second opinion from Dr. John L. Khim, a Boardcertified orthopedic surgeon, who found no objective abnormalities on examination. Dr. Khim
diagnosed back pain of unspecified etiology. OWCP found a conflict between Dr. Khim and
appellant’s attending physicians regarding the nature and extent of any disability resulting from
the accepted lumbar myalgia. To resolve the conflict, OWCP appointed Dr. Stephen F. Weiss, a
Board-certified orthopedic surgeon, as impartial medical examiner. In an October 18, 2006
report, Dr. Weiss reviewed the medical record and statement of accepted facts provided for his
review. He noted positive Waddell’s signs and pain behaviors but found no objective
2

Docket No. 10-429 (issued October 26, 2010).

3

September 27, 2003 and August 15, 2006 lumbar magnetic resonance imaging (MRI) scans were negative.

4

Under File No. xxxxxx517, appellant filed an occupational disease claim on October 1, 2003 for a lumbar
condition caused by prolonged standing and repetitive lifting and carrying. OWCP denied this claim by decision
dated January 7, 2004. On March 17, 2011 OWCP doubled appellant’s claims under File No. xxxxxx517 and
xxxxxx197 under File No. xxxxxx197 as both claims concerned the same part of the body and contained largely the
same evidence.
5

On December 10, 2005 appellant claimed a schedule award. In a January 20, 2006 letter, OWCP advised her
that it could not develop her schedule award claim until she had attained maximum medical improvement.
6

Appellant also underwent chiropractic manipulation from November 2004 to April 2005.

2

abnormalities on examination. Dr. Weiss opined that appellant could return to full duty without
restrictions.
By notice dated October 31, 2006, OWCP advised appellant that it proposed to terminate
her wage loss and medical compensation benefits as the medical evidence demonstrated that the
accepted condition ceased without residuals. Appellant responded in a November 13, 2006
letter, contending that Dr. Khim and Dr. Weiss were biased. She submitted pain clinic reports
dated from October 2004 to August 2006, August 14, 2006 imaging studies showing sclerotic
margins at S1, and a November 15, 2006 report from Dr. Dierschke diagnosed
musculoligamentous back pain related to lifting and driving at work beginning in August 2002.
By decision dated December 13, 2006, OWCP terminated appellant’s wage loss and
medical compensation effective that day on the grounds that the accepted myalgia had ceased
without residuals. It found that the additional evidence submitted was insufficiently rationalized
to outweigh Dr. Weiss’ opinion.
In a December 20, 2006 letter, appellant requested reconsideration. She submitted a
November 22, 2006 report from Dr. Dierschke opining that delivering mail at work caused
appellant’s low back pain.
By decision dated January 26, 2007, OWCP denied modification on the grounds that
Dr. Dierschke’s report was insufficiently rationalized to outweigh Dr. Weiss’ opinion.
By decision dated September 13, 2007, OWCP denied appellant’s claim for total
disability compensation for the period August 1, 2005 to August 25, 2006 on the grounds that
causal relationship was not established.7
In December 10, 2007 and January 22, 2008 letters, appellant requested reconsideration.
She submitted new medical evidence. In a June 27, 2007 report, Dr. Ralph B. Nelson, an
attending osteopathic physician, found restricted lumbar motion and diminished lower extremity
strength bilaterally. He opined that appellant was severely limited by lumbar pain and side
effects from prescription narcotics.8
In a November 12, 2007 report, Dr. Dierschke opined that lifting trays of mail and
driving at work “more likely than not” caused appellant’s musculoligamentous back pain as she
had no symptoms prior to beginning the mounted route.
By decision dated March 3, 2008, OWCP denied modification on the grounds that the
new medical evidence did not establish a causal relationship between work factors and
appellant’s lumbar symptoms on and after December 13, 2006.

7

OWCP stated that appellant remained entitled to medical benefits. In a January 14, 2008 letter, it advised
appellant that the statement in the September 13, 2007 decision that her medical benefits continued was incorrect.
OWCP terminated appellant’s medical benefits by the December 13, 2006 decision.
8

A December 20, 2007 lumbar MRI scan showed possible mild desiccation at L3-4 of doubtful clinical
significance.

3

In January 69 and March 18, 2009 letters received on March 23, 2009, appellant
requested reconsideration. She submitted a DVD of medical records. As the DVD was not
readable, OWCP requested that appellant submit printouts of the evidence. Appellant submitted
a new DVD on May 20, 2009 but did not provide the requested printouts.
By decision dated June 10, 2009, OWCP denied reconsideration on the grounds that
appellant’s request was not timely filed and failed to present clear evidence of error. It found
that the imaging studies on the DVD were irrelevant as they did not address causal relationship.10
As noted, appellant appealed to the Board on December 4, 2009. By order issued
October 26, 2010, the Board set aside OWCP’s June 10, 2009 decision and remanded the case to
OWCP for reconstruction of the record, including obtaining a complete copy of the evidence
appearing on the DVD and incorporating these documents into the case record.
On remand of the case, OWCP advised appellant in a January 6, 2011 letter to submit
printed copies of the evidence on the DVD. It added a March 26, 2009 MRI scan report
submitted under File No. xxxxxx517 to the present case record. The scan showed a small rightsided foraminal disc protrusion at L4-5 with no apparent nerve root impingement. Appellant did
not submit additional evidence prior to March 17, 2011.
By decision dated March 17, 2011, OWCP denied modification of its March 3, 2008
merit decision11 affirming the denial of compensation and medical benefits on and after
December 13, 2006 on the grounds that the medical evidence did not support an ongoing workrelated condition. It found that the March 26, 2009 lumbar MRI scan report did not explain how
or why appellant’s condition on and after December 13, 2006 was related to the accepted lumbar
myalgia.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.12 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the

9

The form is dated “January 6, 2008.” However, the fax stamp shows that it was transmitted on January 6, 2009.

10

After appellant filed her first appeal with the Board on December 4, 2009, OWCP issued a December 10, 2009
decision denying a November 3, 2009 request for reconsideration on the issue of whether appellant had a continuing
work-related disability on and after December 31, 2006. (RD 12/10/09) This decision, however, is null and void as
the Board and OWCP may not simultaneously have jurisdiction over the same issue. See Terry L. Smith, 51 ECAB
182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings,
41 ECAB 880 (1990).
11

OWCP’s March 17, 2011 decision referenced several decisions under both claims and stated that appellant’s
claim continued to be denied. However, the majority of the rationale set forth in the decision indicates that OWCP
intended to affirm its prior termination of appellant’s compensation.
12

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

employment.13 OWCP’s burden includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.14
To terminate authorization for medical treatment, OWCP must establish that the claimant
no longer has residuals of an employment-related condition which require further medical
treatment.15
Section 8123 of FECA provides 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, who shall make an examination.16 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist 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.17
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained lumbar myalgia in the performance of duty.
Appellant claimed but did not receive wage-loss compensation for the period August 1, 2005 to
August 25, 2006 due to insufficient medical evidence establishing total disability for work.
Dr. Dierschke, an attending Board-certified physiatrist, and Dr. Gutting, an attending
Board-certified neurosurgeon, treated appellant for back pain. Both physicians attributed
appellant’s lumbar pain to driving a delivery route and lifting at work. Dr. Van Dorp, an
attending Board-certified physiatrist, held appellant off work through April 2006 due to lumbar
pain. OWCP obtained a second opinion from Dr. Khim, a Board-certified orthopedic surgeon,
who found no objective abnormalities on examination.
OWCP then found a conflict of medical opinion between Dr. Khim and appellant’s
physicians. Dr. Weiss, a Board-certified orthopedic surgeon, was selected as impartial medical
examiner. He found no objective abnormality of the spine on examination, but noted positive
Waddell’s signs and pain behaviors. Dr. Weiss opined that in the absence of objective findings,
appellant had no work limitations and could resume full duty. Based on his report as the weight
of the medical evidence, OWCP issued a December 13, 2006 decision terminating appellant’s
wage-loss compensation and medical benefits effective that day.
The Board finds that Dr. Weiss’ opinion as impartial medical examiner is sufficient to
represent the weight of the medical evidence. It is based on the complete factual and medical
13

Id.

14

Raymond W. Behrens, 50 ECAB 221 (1999).

15

Pamela K. Guesford, 53 ECAB 726 (2002).

16

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

17

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

5

history as well as a thorough clinical examination.18 Also, there was no reasoned medical
evidence submitted indicating that appellant could not perform the date-of-injury position as of
December 13, 2006. Therefore, OWCP’s December 13, 2006 decision was proper under the law
and facts of this case.
On appeal, counsel asserts that OWCP’s March 17, 2011 decision is “contrary to fact and
law.” As stated above, OWCP properly terminated appellant’s compensation effective
December 13, 2006 as the medical evidence demonstrated that the accepted lumbar myalgia
ceased without residuals.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
After OWCP has met its burden of proof in terminating compensation benefits, the
burden shifts to the claimant to establish a medical condition causally related to his or her
accepted injuries.19 In order to prevail, the claimant must establish by the weight of reliable,
probative and substantial evidence that he or she had an employment-related disability that
continued after termination of compensation benefits.20 For conditions not accepted by OWCP
as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation.21
ANALYSIS -- ISSUE 2
Following OWCP’s December 13, 2006 decision terminating her wage-loss
compensation and medical benefits, appellant requested reconsideration on December 20, 2006
and December 10, 2007, denied by merit decisions issued January 26, 2007 and March 3, 2008
respectively. Appellant again requested reconsideration on January 6, 2009 and submitted a
DVD of medical evidence. OWCP denied reconsideration by June 10, 2009 decision based on
evidence from the DVD, but did not include this evidence in the record. Pursuant to the first
appeal, the Board remanded the case to OWCP to obtain printouts of the evidence on the DVD.
In support of her requests for reconsideration, appellant submitted November 22, 2006
and November 12, 2007 reports from Dr. Dierschke opining that lifting mail and driving a
delivery route caused appellant’s low back pain. She also provided a June 27, 2007 report from
Dr. Nelson, an attending osteopathic physician, stating that appellant was limited by back pain
and prescription side effects. However, Dr. Dierschke and Dr. Nelson did not explain the

18

James R. Taylor, 56 ECAB 537 (2005); Jacqueline Brasch (Ronald Brasch), id.

19

Manuel Gill, 52 ECAB 282 (2001); Talmadge Miller, 47 ECAB 673 (1996).

20

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101 (1992).

21

Alice J. Tysinger, 51 ECAB 638 (2000).

6

pathophysiologic relationship between appellant’s back pain and the accepted lumbar myalgia.22
Neither physician explained how work factors prior to appellant stopping work in August 27,
2005 would cause an ongoing condition on and after December 13, 2006.23 Also, pain is
considered to be a symptom and not a compensable diagnosis.24 Therefore, these reports are
insufficiently rationalized to outweigh Dr. Weiss’ opinion or create a new conflict of medical
opinion.25
Appellant did not respond to OWCP’s request for printouts of the DVD evidence.
However, OWCP considered a March 26, 2009 lumbar MRI scan report of record in a related
claim, showing a small disc protrusion at L4-5. As this report does not contain any rationale
relating the disc protrusion to the accepted condition, it is insufficient to meet appellant’s burden
of proof.26
The Board finds that appellant submitted insufficient rationalized medical evidence to
establish a causal relationship between her condition on and after December 13, 2006 and the
accepted injuries. Therefore, she failed to meet her burden of proof.
On appeal, counsel asserts that OWCP’s March 17, 2011 decision is “contrary to fact and
law.” As stated above, appellant did not provide sufficient medical evidence to establish that her
condition on and after December 13, 2006 was causally related to the accepted lumbar myalgia.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective December 13, 2006. The Board further finds that
appellant has not established that her condition on and after December 13, 2006 was causally
related to accepted lumbar myalgia.

22

Mary E. Marshall, 56 ECAB 420 (2005).

23

Alice J. Tysinger, supra note 21.

24

See Robert Broome, 55 ECAB 339 (2004).

25

Virginia Davis Banks, supra note 20.

26

Alice J. Tysinger, supra note 21.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 17, 2011 is affirmed.
Issued: February 6, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-314
Issued: July 5, 2012

Case Submitted on the Record

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

JURISDICTION
On November 18, 2011 appellant filed a timely appeal from a November 14, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
effective April 10, 2011 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On August 2, 2006 appellant, then a 63-year-old rural carrier, was injured in a motor
vehicle accident while in the performance of duty. OWCP accepted his traumatic injury claim
for left rib and left shoulder contusions and a torn left rotator cuff. Appellant was placed on
1

5 U.S.C. § 8101 et seq.

modified assignment effective August 7, 2006. He stopped work on April 10, 2009 and
underwent left shoulder arthroscopy on April 23, 2009.2 Appellant was paid wage-loss
compensation and medical benefits.
In a May 14, 2009 statement, appellant claimed that he fell on his right side
approximately one hour before his April 23, 2009 surgery. He sustained injuries to the right
fourth digit, ulna, shoulder and knee.3 Dr. Eric S. Stem, the Board-certified orthopedic surgeon
who performed the arthroscopy, detailed this incident in an April 28, 2009 report. On
examination, he observed right forearm abrasion and distal tenderness as well as proximal
interphalangeal joint tenderness of the right ring finger. X-rays exhibited nondisplaced distal
ulnar shaft fracture. Dr. Stem diagnosed status post left shoulder arthroscopy, right hand
contusion, nondisplaced right ulnar shaft fracture and possible ring finger dislocation. After
reviewing x-rays of appellant’s right knee, he diagnosed degenerative joint disease with possible
torn medial meniscus in a May 29, 2009 report.4
Dr. Seth P. Kupferman, a Board-certified orthopedic surgeon, related in an August 19,
2009 report that appellant sustained right hand and arm symptoms as a result of a fall on
April 23, 2009. On examination, he observed left anterior shoulder tenderness. Dr. Kupferman
diagnosed status post left shoulder arthroscopy and healed right ulnar shaft fracture. He
prohibited use of the left upper extremity on the job for two months. In an October 21, 2009
follow-up report, regarding the left shoulder, Dr. Kupferman advised appellant to avoid lifting
items weighing more than 30 pounds and any repetitive overhead activity involving the left
upper extremity.5
By decision dated December 10, 2009, OWCP denied appellant’s consequential injury
claim, finding the medical evidence insufficient to establish that his right upper extremity
condition stemmed from an accepted condition.6
OWCP referred appellant for a second opinion examination to Dr. James F. Bethea, a
Board-certified orthopedic surgeon. Questions posed to Dr. Bethea included whether disabling
work-related residuals continued and, if so, what were his work restrictions. In an October 20,
2010 report, Dr. Bethea noted that appellant complained of left shoulder pain related to an
August 2, 2006 motor vehicle collision. He listed left shoulder examination findings, including
limited left shoulder range of motion (ROM). X-rays showed two metal anchors in the proximal
2

OWCP authorized the surgery in a March 19, 2009 letter and later accepted a recurrence of disability by
decision dated June 29, 2009. Appellant did not return to work following the procedure.
3

Appellant reiterated his allegation in an August 22, 2009 statement.

4

Dr. Stem’s remaining reports for the period May 8 to July 14, 2009 documented gradual healing of appellant’s
left shoulder incisions and right ulnar fracture.
5

In an April 7, 2010 work capacity form, Dr. Kupferman checked the “no” box indicating that appellant was
incapable of performing his former job duties. A subsequent June 22, 2011 note advised that appellant was still
subject to these restrictions.
6

Pertinent information in the foregoing paragraphs was incorporated into the September 22, 2010 statement of
accepted facts.

2

humerus consistent with rotator cuff surgery. After reviewing the September 22, 2010 statement
of accepted facts and the medical file, Dr. Bethea opined that appellant experienced residuals of
his accepted left upper extremity injuries that rendered him incapable of performing his former
job duties, namely lifting.7 He imposed the following permanent work restrictions: pushing,
pulling and lifting items weighing up to 20 pounds for two hours each and no climbing, reaching
above the shoulder or operating a motor vehicle. OWCP informed the employing establishment
in a December 7, 2010 letter that Dr. Bethea’s opinion constituted the weight of the medical
evidence.
On December 14, 2010 the employing establishment offered appellant the full-time
position of laborer/custodian at its processing and distribution center in Charleston, South
Carolina, effective December 20, 2010. Duties included sweeping and mopping for two hours,
cleaning sinks and toilets for an hour, emptying trash receptacles for two hours and vacuuming
for 2.5 hours. The position required standing and walking for 7.5 hours, intermittent pushing,
pulling and lifting of items weighing up to 20 pounds between one and two hours and occasional
bending, twisting and kneeling between one and two hours. Appellant declined the job offer on
December 25, 2010 on the grounds that he was physically and mentally incapable of performing
custodial work due to bilateral upper extremity symptoms and depression.
On January 26, 2011 OWCP asked its OWCP medical adviser to review the job offer and
Dr. Bethea’s October 20, 2010 report to determine if appellant could medically perform the
offered position. On that date, the medical adviser responded that appellant was capable of
performing the duties outlined in the employing establishment’s December 14, 2010 job offer.
In a January 28, 2011 letter, OWCP informed appellant that the laborer/custodian
position offered by the employing establishment was suitable in light of his physical capabilities.
It noted that the medical evidence of record established that he was partially disabled. It gave
appellant 30 days to accept the position without penalty or provide an explanation justifying his
refusal.
Appellant’s counsel contended in a February 28, 2011 letter that the December 14, 2010
job offer was not suitable because the employing establisshment did not guarantee a set number
of hours. In particular, he pointed out that the offer letter described the position as “subject to
revision based on changes in [appellant’s] physical restrictions and/or the availability of adequate
work.” Alternatively, counsel argued that Dr. Bethea’s October 20, 2010 report failed to
consider appellant’s nonaccepted conditions.
In a March 11, 2011 letter, OWCP informed appellant that his reasons for refusing the
laborer/custodian position were invalid and afforded him 15 days to accept the job offer. In
March 15 and 17, 2011 letters, appellant’s counsel reasserted his argument that the offered job
was not suitable.
By decision dated March 31, 2011, OWCP terminated appellant’s wage-loss
compensation effective April 10, 2011 on the grounds that he refused an offer of suitable work.
7

Dr. Bethea also determined that appellant had a seven-percent impairment of the left upper extremity. See
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

3

On April 7, 2011 counsel requested a telephonic oral hearing and reiterated that the
offered job was not suitable. On July 11, 2011 he changed his hearing request to a request for a
review of the written record. Counsel asserted that the job offer was contradictory and that the
medical evidence did not establish that appellant could work. In a July 28, 2011 letter, the
employing establishment maintained that its December 14, 2010 job offer satisfied OWCP’s
procedural requirements.
On November 14, 2011 OWCP’s hearing representative affirmed the March 31, 2011
decision. The hearing representative found that the duties of the offered job was physically
suitable based on the opinions of Dr. Bethea, Dr. Kupferman and OWCP’s medical adviser.
LEGAL PRECEDENT
OWCP may terminate compensation for any partially-disabled employee who refuses or
neglects to work after suitable work is offered to, procured by, or secured for him or her.8 To
meet its burden to justify termination, OWCP must show that the work offered was suitable, the
employee was informed of the consequences of refusing to accept such employment, and the
employee was afforded a reasonable period to accept or reject the position or submit evidence or
reasons why the position was not suitable and could not be accepted.9
The threshold issue is whether the position offered by the employing establishment is
suitable.10 Whether an employee has the physical ability to perform the duties of the modified
position is primarily a medical question that must be resolved by the medical evidence. In
assessing suitability, all preexisting and subsequently-acquired conditions must be considered.11
ANALYSIS
OWCP referred appellant to Dr. Bethea for a second opinion examination to determine
the extent of his disability. In an October 20, 2010 report, following a physical evaluation and a
review of the September 22, 2010 statement of accepted facts and medical file, Dr. Bethea
concluded that appellant continued to experience residuals of his accepted left upper extremity
condition that rendered him partially disabled. He limited pushing, pulling and lifting activities
to items weighing up to 20 pounds for two hours each and proscribed climbing, reaching above
the shoulder and driving. Thereafter, on December 14, 2010 the employing establishment
presented a written offer of modified employment as a full-time labor/custodian that satisfied
OWCP’s procedural requirements.12
8

5 U.S.C. § 8106(c)(2). The Board has recognized that section 8106(c) of FECA serves as a penalty provision as
it may bar an employee’s entitlement to future compensation and, for this reason, will be narrowly construed.
Stephen A. Pasquale, 57 ECAB 396, 402 (2006).
9

M.M., 59 ECAB 680, 683 (2008). See also 20 C.F.R. § 10.515 et seq.

10

Martha A. McConnell, 50 ECAB 129 (1998).

11

Gayle Harris, 52 ECAB 319, 321 (2001).

12

J.N., Docket No. 09-1621 (issued July 14, 2010). See also Federal (FECA) Procedure Manual, Part 2 -Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.4 (July 1997).

4

The Board finds that OWCP improperly terminated appellant’s wage-loss compensation.
As noted, OWCP must consider all preexisting and subsequently-acquired conditions, regardless
of etiology, in evaluating the suitability of an offered position.13 The case record contains
medical evidence from Drs. Stem and Kupferman for the period April 28 to August 19, 2009 that
was received by OWCP in advance of the second opinion referral. The reports establish that
appellant sustained preexisting degenerative right knee joint disease and a right-hand contusion,
ring finger dislocation and nondisplaced ulnar shaft fracture. Dr. Bethea, however, did not
consider these injuries in his October 20, 2010 report. In assessing the suitability of the
labor/custodian position, OWCP failed to sufficiently consider whether appellant could meet the
physical demands of the job in light of all of his medical conditions. Although the hearing
representative indicated that appellant’s ability to perform the duties of the offered position was
supported by the opinions of Drs. Bethea, Kupferman and OWCP’s medical adviser, the record
indicates that each of the physicians listed restrictions based on appellant’s left shoulder
condition. The physicians did not consider any of the nonaccepted conditions in defining
appellant’s work restrictions. Because it did not establish that the assignment offered by the
employing establishment was suitable, OWCP did not meet its burden of proof.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation.

13

See J.S., Docket No. 06-253 (issued November 24, 2006); Edward J. Stabell, 49 ECAB 566 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2011 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: July 5, 2012
Washington, DC

Richard J. Daschbach, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
Issued: March 1, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 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 March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

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Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

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