United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SALISBURY VETERANS ADMINISTRATION
MEDICAL CENTER, Salisbury, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-924
Issued: December 1, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant, through her attorney, filed a timely appeal of the
January 15, 2009 merit decision of the Office of Workers’ Compensation Programs denying her
claim for leave buyback. Pursuant to 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 is entitled to leave buyback for disability from March 12
to 27, 2008 due to her January 8, 2008 employment injuries.
FACTUAL HISTORY
On January 8, 2008 appellant, then a 42-year-old medical technician struck her head and
strained her back when she slipped and fell on water on the floor at work. In a February 15,
2008 medical report, Dr. Trevor R. Allison, an attending family practitioner, released appellant
to light-duty work on February 18, 2008. In a February 20, 2008 report, Dr. Harrison A.
Latimer, a Board-certified orthopedic surgeon, released appellant to light-duty work on that date.

In a March 12, 2008 report, he released appellant to regular work duties with no restrictions on
that date. In a March 26, 2008 report, Dr. John M. Lesher, a Board-certified physiatrist, stated
that appellant could return to her regular work duties with no restrictions on that date.
On May 16, 2008 appellant filed a claim (Form CA-7) to buy back leave for the period
February 27 to March 27, 2008. In a time analysis form (CA-7a) and leave buyback worksheet
(Form CA-7b), she claimed 168.75 hours of leave buyback for the stated period.
In a February 22, 2008 report, Dr. Allison stated that appellant sustained neck pain and
strain. Appellant could return to work on March 10, 2008. In a March 3, 2008 report,
Dr. Allison found that appellant sustained shoulder pain/strain. Appellant was totally disabled
from March 7 to 14, 2008. In a March 20, 2008 report, Dr. Allison stated that appellant suffered
from back pain. Appellant could return to work on March 26, 2008.
By letter dated May 27, 2008, the Office accepted appellant’s claim for back and neck
sprains. It also requested that she submit medical evidence from her attending physician
explaining why she was unable to work in light of evidence which established that she was
released to light-duty work on February 18, 2008 and later released to full-duty work on
March 12, 2008. Appellant was allowed 30 days to submit such evidence. She did not respond.
By decision dated July 30, 2008, the Office denied appellant’s claim to buy back leave
for the period March 12 to 27, 2008. It modified the period covered by her May 21, 2008 CA-7
form because the evidence established that she was released to light-duty work on February 18,
2008 and subsequently released to regular work duties with no restrictions on March 12, 2008.
The Office found that appellant failed to submit medical evidence establishing that she was
totally disabled from March 12 to 27, 2008 due to the accepted January 8, 2008 employmentrelated injuries.1
In an August 4, 2008 letter, appellant, through counsel, requested a telephonic hearing
before an Office hearing representative. In an undated disability certificate, Dr. Allison stated
that appellant was not working due to her employment-related neck and back injuries. Appellant
was out of work while under his care from March 12 to 27, 2008.
By decision dated January 15, 2009, an Office hearing representative affirmed the
July 30, 2008 decision, finding that the medical evidence was insufficient to establish that
appellant was totally disabled from March 12 to 27, 2008 causally related to the accepted
employment-related injuries.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,2 appellant has the burden of proving
by the preponderance of the reliable, probative and substantial evidence that she was disabled for

1

In the July 30, 2008 decision, the Office instructed appellant to resubmit a CA-7 form with the “corrected
figures” for the period February 27 to March 11, 2008.
2

5 U.S.C. §§ 8101-8193.

2

work as the result of an employment injury.3 Monetary compensation benefits are payable to an
employee who has sustained wage loss due to disability for employment resulting from the
employment injury.4 Whether a particular employment injury causes disability for employment
and the duration of that disability are medical issues which must be proved by a preponderance
of reliable, probative and substantial medical evidence.5
Section 10.425 of the Office’s implementing regulations provide as follows:
“The employee may claim compensation for periods of annual and sick leave
which are restorable in accordance with the rules of the employing establishment.
Forms CA-7 and CA-7b are used for this purpose.”6
In situations where compensation is claimed for periods when leave was used, the Office
has the authority and responsibility to determine whether the employee was disabled during the
period, for which compensation is claimed.7 It determines whether the medical evidence
establishes that an employee is disabled by an employment-related condition during the period
claimed for leave buyback, after which the employing establishment will determine whether it
will allow the employee to buy back the leave used.8
ANALYSIS
In this case, the Office denied appellant’s CA-7 and CA-7b claims for leave buyback for
the period March 12 to 27, 2008 on the grounds that the evidence failed to establish that she
sustained any disability causally related to her accepted January 8, 2008 employment-related
back and neck sprains.
Dr. Allison’s February 22, 2008 report stated that appellant sustained neck pain and
strain. He released her to work on March 10, 2008. However, Dr. Allison did not address
whether appellant was totally disabled from March 12 to 27, 2008 due to her accepted
employment-related injuries. The Board finds that his report is insufficient to establish
appellant’s claim.
Dr. Allison’s March 3, 2008 report found that appellant sustained shoulder pain/strain.
He opined that she was totally disabled from March 7 to 14, 2008. Dr. Allison’s March 20, 2008
report stated that appellant suffered from back pain. He released her to work on March 26, 2008.
3

David H. Goss, 32 ECAB 24 (1980).

4

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

5

Edward H. Horten, 41 ECAB 301 (1989).

6

20 C.F.R. § 10.425.

7

Laurie S. Swanson, 53 ECAB 517 (2002); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Computing Compensation, Chapter 2.901.19 (July 2000), which indicates that the Office is responsible for
reviewing the medical evidence to determine if it establishes entitlement to compensation for periods during which
leave buyback is claimed.
8

Laurie S. Swanson, supra note 7.

3

However, Dr. Allison did not address whether appellant’s disability was causally related to the
accepted January 8, 2008 employment injuries.9 The Board finds that his reports are insufficient
to establish appellant’s claim.
Similarly, Dr. Allison’s undated disability certificate is insufficient to establish
appellant’s claim. He stated that she was out of work from March 12 to 27, 2008 while under his
care for her employment-related neck and back injuries. Dr. Allison did not address whether
appellant’s disability was due to the accepted employment-related injuries.10
Appellant has failed to submit rationalized medical evidence establishing that her
disability from March 12 to 27, 2008 resulted from the residuals of her accepted January 8, 2008
employment-related back and neck sprains. The Board finds, therefore, that the Office properly
denied her claim for leave buyback for the claimed period.
CONCLUSION
The Board finds that appellant has failed to establish entitlement to leave buyback for
total disability from March 12 to 27, 2008 due to her January 8, 2008 employment injuries.

9

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2009 and July 30, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 1, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1185
Issued: March 4, 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 July 29, 2021 appellant filed a timely appeal from an April 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2021, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2021 decision, OWCP received additional evidence. 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.

FACTUAL HISTORY
On March 9, 2021 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she suffered a “traumatic injury” on February 18, 2021 when she was
robbed at gun point by two male suspects while in the performance of duty. On the reverse side
of the claim form the employing establishment acknowledged that she was injured in the
performance of duty and that its knowledge of the facts of her injury was consistent with her
statements. Appellant stopped work on February 19, 2021.
A February 18, 2021 police report noted that appellant was robbed at gun point by two
male suspects who fled the scene.
In a development letter dated March 12, 2021, OWCP informed appellant that it had
received no medical evidence in support of her traumatic injury claim. It advised her of the type
of factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP also requested a narrative medical report from appellant’s treating physician,
which contains a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to submit the necessary evidence. Appellant did not submit a response.
By decision dated April 15, 2021, OWCP denied appellant’s traumatic injury claim,
finding that she had not established the factual component of her claim, as she had not provided
evidence or a statement explaining how she was injured as a result of the alleged employment
incident. It noted that she had not responded to the March 12, 2021 development letter. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on the employee’s
statements in determining whether a prima facie case has been established. 10 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2021, as alleged.
In her Form CA-1, appellant indicated that she was robbed at gunpoint on February 18,
2021 by two male suspects, which was confirmed by a police report of even date. However, she
did not provide an explanation as to how she was injured or what body part was injured as a result
of the alleged employment incident. In a development letter dated March 12, 2021, OWCP
requested that appellant submit clarifying information describing how and when her claimed injury
occurred and provided a questionnaire for her completion. However, appellant did not complete
and return the March 12, 2021 development questionnaire. Therefore, she has failed to present a
clear factual statement in the record describing the specific alleged employment-related incident
alleged to have caused or contributed to her claimed medical condition.12 As she has not responded
to the request for factual information to describe the employment incident and circumstances

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

See D.C., Docket No. 18-0082 (issued July 12, 2018).

3

surrounding her alleged injury, the Board finds that appellant has not established that a traumatic
injury occurred in the performance of duty on February 18, 2021, as alleged.13
The Board further finds that, because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged. 14 Thus, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.

13

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Long Beach, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1144
Issued: August 9, 2019

Case Submitted on the Record

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

JURISDICTION
On May 15, 2018 appellant filed a timely appeal from a March 13, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 5, 2015, as he no longer had residuals
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 13, 2018 decision, OWCP received additional evidence. 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.

or disability due to his accepted bilateral lower leg osteoarthrosis; and (2) whether appellant has
met his burden of proof to establish continuing disability or residuals on or after
November 5, 2015.
FACTUAL HISTORY
On March 26, 2012 appellant, then a 56-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he experienced bilateral knee pain as a result of his federal
employment duties including delivering mail on uneven surfaces and repeatedly tweaking his
knees. He explained that he worked as a mail handler for 19 years and did a lot of pushing and
pulling of heavy objects. Appellant related that he also worked special delivery and as a collector
for six years and had to get in and out of his truck and lift heavy tools approximately 85 times a
day. He first became aware of his condition and realized that it resulted from factors of his federal
employment on January 12, 2012. Appellant had not worked since February 11, 2011 due to a
previously accepted claim. OWCP assigned the current claim OWCP File No. xxxxxx297.3
Appellant underwent magnetic resonance imaging (MRI) scans of his bilateral knees on
January 24, 2012. MRI scans showed no meniscal tears or chondral defects of the left knee. The
right knee MRI scan showed findings indicative of a localized osteochondral injury.
On July 2, 2012 OWCP accepted appellant’s claim for bilateral lower leg osteoarthrosis.
Appellant was released to work modified duty on January 12, 2012.
Under a separate claim, OWCP File No. xxxxxx384, OWCP referred appellant, along with
a statement of accepted facts and a copy of the record, to Dr. G.B. Ha’Eri, a Board-certified
orthopedic surgeon serving as a second opinion examiner, to determine his work restrictions for
vocational rehabilitation purposes and whether he sustained a bilateral knee degenerative joint
disease as a result of his employment.
In a July 20, 2012 report, Dr. Ha’Eri noted that appellant’s claim was accepted for cervical
radiculopathy and bilateral epicondylitis. He reviewed appellant’s history of injury regarding his
cervical and upper extremity conditions and provided physical examination findings. Dr. Ha’Eri
indicated that examination of appellant’s bilateral knees showed mild crepitus with no deformity,
swelling, or effusion. He noted that appellant could work part time with restrictions up to four
hours. With regard to appellant’s alleged bilateral knee injury, Dr. Ha’Eri opined that he did not
agree that appellant suffered a work-related bilateral knee degenerative joint disease. He explained
that the left knee MRI scan was normal and the right knee showed chondromalacia over the medial
femoral condyle, which was of a degenerative nature and not connected to a work injury.
Appellant was also treated by Dr. Edward Mittleman, a family practitioner, who related in
reports dated July 26 and September 21, 2012 that appellant complained of bilateral knee pain.
3

Under OWCP File No. xxxxxx384, appellant has an accepted occupational disease claim for cervical
radiculopathy, bilateral later epicondylitis, and bilateral medial epicondylitis, which arose on or about May 1, 2009.
He also has an accepted traumatic injury claim for back muscle spasm, which arose on July 14, 2009. OWCP assigned
the latter claim OWCP File No. xxxxxx559. It combined the two above-noted claims with the current claim, and
designated OWCP File No. xxxxxx384 as the master file.

2

Physical examination of his bilateral knees showed medial joint line tenderness and minimal
crepitance bilaterally. Lachman and anterior and posterior drawer tests were negative bilaterally.
Dr. Mittleman diagnosed bilateral knee degenerative joint disease and left knee tendinitis.
In a February 26, 2013 report, Dr. Charles Herring, a Board-certified orthopedic surgeon,
noted that appellant still complained of significant right knee pain. Upon physical examination of
appellant’s knees, he observed medial and lateral joint line tenderness. Dr. Herring diagnosed
right knee medial femoral condyle osteochondral defect, left knee tendinitis, and bilateral knee
degenerative joint disease. He requested authorization for right knee surgery.
On October 5, 2013 appellant returned to part-time modified duty, working five hours per
day.
A December 5, 2013 left knee MRI scan showed very mild chondromalacia patella,
minimal subtle signal abnormality within the medial femoral condyle which may represent sequela
of prior subchondral injury, and findings likely representing a subtle tiny oblique tear through the
posterior horn of the medial meniscus. A right knee MRI scan report showed findings that likely
represented a subtle oblique tear of the posterior horn of the medial meniscus and minimal focal
osteochondral signal abnormality within the medial femoral condyle.
OWCP found that, a conflict in medical evidence existed between Dr. Mittleman,
appellant’s treating physician who opined that appellant had a right knee osteochondral injury and
required surgery, and Dr. Ha’Eri, who opined that appellant did not suffer an employment-related
right knee injury. It referred appellant to Dr. Daniel Kaplan, a Board-certified orthopedic surgeon,
for an impartial medical examination in order to resolve the conflict.
In a March 5, 2014 report, Dr. Kaplan indicated that he reviewed appellant’s records and
noted that appellant sustained injuries to his knees and cervical spine at work. Upon physical
examination of his right knee, he observed mild medial joint line tenderness with no crepitance or
effusion. Range of motion was 0 to 130 degrees. Examination of appellant’s left knee revealed
no effusion and range of motion of 0 to 135 degrees actively and passively. Dr. Kaplan discussed
appellant’s medical records. He diagnosed right knee mild degenerative joint disease. Dr. Kaplan
reported that, based on appellant’s history, he did not feel that this should be considered an
employment-related injury. He opined that appellant had a mild degenerative change in the knee
which was not unexpected given his age. Dr. Kaplan noted that appellant did not need surgery.
He related that appellant had no disability or work restrictions due to his right knee, but his other
injuries may affect his capacity to return to his regular work.
On June 18, 2014 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because his work-related injury had resolved. It found that the special weight of
the medical evidence rested with Dr. Kaplan’s March 5, 2014 report, in which he found that
appellant had not sustained a work-related right knee condition. OWCP afforded appellant 30
days to submit additional evidence or argument, in writing, if he disagreed with the proposed
termination.
OWCP received a June 12, 2014 report by Dr. Mittleman who noted his disagreement with
Dr. Kaplan’s March 5, 2014 report. Dr. Mittleman indicated that appellant’s claim had been

3

accepted for osteoarthritis of the bilateral leg and related that appellant continued to be
symptomatic secondary to this progressive condition. He compared appellant’s January 2012
bilateral knee MRI scans and his more recent MRI scans and opined that they showed a
“progression of the pathology in both of [appellant’s] knees, which is consistent with permanent
aggravation of bilateral knee pathology.” Dr. Mittleman described appellant’s employment duties
and explained that these types of activities produced pathology in the knees. He continued to treat
appellant and provide medical reports dated September 24, 2014 to July 23, 2015.
OWCP finalized the termination of appellant’s wage-loss compensation and medical
benefits, effective November 5, 2015, by decision of that same date. It found that the special
weight of medical evidence rested with Dr. Kaplan, the impartial medical examiner (IME), who
had determined in a March 5, 2014 report that appellant did not have residuals or disability due to
a work-related right knee injury.
On May 19, 2016 appellant requested reconsideration.
In a letter dated May 11, 2016, Dr. Mittleman noted his disagreement with OWCP’s
termination decision. He indicated that Dr. Kaplan had not addressed appellant’s medial meniscus
oblique tear as documented in the December 5, 2013 MRI scan. Dr. Mittleman further contended
that appellant’s degenerative joint knee condition was related to his employment and referenced
several medical studies which revealed that work conditions produced his knee pathology. He
opined that, given appellant’s repetitive activities as a letter carrier/mail handler, and the
significant stresses and strains on his knee joints over time, it was more proper to consider that
these work activities were the source of his degenerative knee disease and documented medial
meniscus tear. Dr. Mittleman requested that the acceptance of appellant’s claim be expanded to
include bilateral medial meniscus tear.
By decision dated August 10, 2016, OWCP denied modification of the November 5, 2015
termination decision. It found that Dr. Mittleman’s May 11, 2016 letter was insufficient to
overcome the special weight of the medical evidence accorded Dr. Kaplan as the IME.
On October 18, 2016 appellant requested reconsideration.
In an October 7, 2016 letter, Dr. Mittleman again noted his disagreement with OWCP’s
decision to terminate appellant’s wage-loss compensation and medical benefits. He explained that
it was medically documented that a partial or total tear of the medial meniscus can occur when
shearing forces are put to the knee, such as when a person quickly twists the knee.
By decision dated October 19, 2017, OWCP denied modification of the August 10, 2016
decision. It found that the additional medical evidence submitted was insufficient to overcome the
special weight of Dr. Kaplan’s March 5, 2014 impartial medical report.
On January 12, 2018 appellant requested reconsideration.
In a January 10, 2018 letter, Dr. Basimah Khulusi, Board-certified in physical medicine
and rehabilitation, contended that Dr. Kaplan’s opinion had no probative value. She referenced
ECAB decisions James Washington, Jr., 42 ECAB 182 (1990) and Robert O. Tondee, 37 ECAB
325 (1994), which held that a medical expert or physician should not address legal issues in a case
4

and should only address the medical questions certified. Dr. Khulusi then claimed that Dr. Kaplan
had made “an error of law” when he opined that appellant’s degenerative joint disease of the right
knee was not employment related since appellant’s claim was already accepted for bilateral
osteoarthritis. She requested that OWCP obtain another impartial medical opinion.
By decision dated March 13, 2018, OWCP denied modification of the October 19, 2017
decision. It found that Dr. Khulusi’s new January 10, 2018 report did not contain examination
findings or medical rationale to establish that appellant still suffered residuals or disability of his
accepted bilateral knee condition.
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.4 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.5 Its burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.7 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.8
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.9 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.10
When there exists 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

4

L.C., Docket No. 18-1759 (issued June 26, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB
541 (1986).
6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7
T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
8

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

9

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
10

20 C.F.R. § 10.321.

5

such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.11
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 5, 2015.
In a March 5, 2014 report, Dr. Kaplan, the IME selected to resolve a conflict in medical
opinion evidence, noted that appellant sustained injuries to his knees at work. Upon physical
examination of appellant’s right knee, he observed mild medial joint line tenderness with no
crepitance or effusion. Range of motion was 0 to 130 degrees. Dr. Kaplan indicated that he
reviewed appellant’s history and discussed his medical records. He diagnosed right knee mild
degenerative joint disease. Dr. Kaplan opined that appellant’s right knee condition was not an
employment-related injury. He explained that appellant had a mild degenerative change in the
knee which was not unexpected given his age. Dr. Kaplan concluded that appellant had no
disability or work restrictions due to his right knee. Based on this report, OWCP terminated
appellant’s wage-loss compensation and medical benefits, effective November 5, 2015.
The Board finds that OWCP had requested that Dr. Kaplan resolve a conflict in medical
opinion evidence regarding whether appellant had an employment-related right knee
osteochondral injury and required surgery. OWCP did not request that Dr. Kaplan opine as to
whether appellant’s accepted bilateral osteoarthritis condition had resolved. Accordingly, in his
March 5, 2014 report, Dr. Kaplan diagnosed degenerative joint disease of the right knee and
opined that appellant’s right knee condition was not causally related to his employment. He
explained that appellant’s condition was degenerative and not unexpected due to appellant’s age.
Dr. Kaplan did not address whether appellant’s accepted bilateral lower leg osteoarthrosis had
resolved.
The Board finds that Dr. Kaplan failed to properly address whether appellant’s accepted
bilateral lower leg osteoarthrosis had ceased, and thus, cannot form the basis for the termination
of appellant’s wage-loss compensation and medical benefits.12 It is well established that medical
reports must be based on a complete and accurate factual and medical background and that medical
opinions based on an incomplete or inaccurate history are of limited probative value.13 Although
Dr. Kaplan acknowledged that appellant had an employment-related bilateral knee injury, he did
not provide an opinion on whether appellant’s accepted injury had ceased. He did not even
acknowledge that appellant’s claim had been accepted for bilateral lower leg osteoarthrosis.
Instead, Dr. Kaplan merely determined that appellant’s right knee degenerative condition was not
related to his employment. As such, this report is of limited probative medical value.

11

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

12

See M.R., Docket No. 17-0634 (issued July 24, 2018).

13

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

6

The Board therefore finds that OWCP has not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective November 5, 2015, based on
the report of Dr. Kaplan, the IME.14
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective November 5, 2015.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 9, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14

Due to the disposition of issue 1, issue 2 is moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, TIMES PLAZA
STATION, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1294
Issued: July 23, 2012

Case Submitted on the Record

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

JURISDICTION
On May 2, 2011 appellant, through her attorney, filed a timely appeal from a March 8,
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 this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation and medical
benefits effective August 18, 2010.
On appeal appellant contends that OWCP’s decision was contrary to fact and law.
FACTUAL HISTORY
On March 12, 2009 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim alleging that on that date she injured her left knee when, after delivering mail, her left foot
1

5 U.S.C. § 8101 et seq.

hit a concrete saddle. On May 21, 2009 OWCP accepted her claim for sprain of unspecified
sites, left knee and leg, and paid wage-loss and medical benefits.
In a June 10, 2009 medical report, Dr. Apostolos P. Tambakis, a Board-certified
orthopedic surgeon, diagnosed appellant with derangement of her left knee and synovitis of her
right knee. He opined that appellant had a marked disability causally related to the accident of
March 12, 2009 and placed her on anti-inflammatory medication. In monthly progress reports
from July 8 through December 15, 2009, Dr. Tambakis continued to indicate that appellant had
marked disability due to the employment-related injury to her left knee. He noted that he was
treating appellant for derangement of the left knee and synovitis in the right knee.
By letter dated February 17, 2010, OWCP referred appellant to Dr. Robert J. Orlandi, a
Board-certified orthopedic surgeon, for a second opinion. In a report dated March 10, 2010,
Dr. Orlandi diagnosed appellant with lumbar strain resolved with a normal examination of each
hip (noncausal hip symptoms) and left knee strain resolved. He opined that appellant could
return to work without restriction and does not require physical therapy or a magnetic resonance
imaging (MRI) scan. Dr. Orlandi noted that there was no musculoskeletal disability and that
appellant had no lumbar spasm. He stated that appellant had no neurologic deficit to either lower
extremity and no swelling of her left knee or patellar abnormality. Dr. Orlandi noted that the left
knee injury was causally related to the accident of record but stated that there should have been
no consequential low back injury as the left knee MRI scan was entirely normal. He indicated
that appellant needed no further treatment.
On July 16, 2010 OWCP issued a notice of proposed termination of appellant’s medical
and wage-loss benefits, finding that the medical evidence established that she no longer had any
residuals or disability due to her employment injury. The termination of benefits became
effective on August 18, 2010.
By letter dated August 25, 2010, appellant requested a telephonic hearing. At the hearing
held on December 6, 2010, she testified that she was hired by the employing establishment in
November 2007 and eventually became a part-time flexible worker. Appellant testified that,
after she delivered mail, her left foot hit the concrete saddle and that she heard and felt her left
knee clack. She testified that she went back to work on July 20, 2010 for four hours a day.
Appellant noted that, when she saw Dr. Orlandi, the second opinion physician, he did not really
do an examination and did not even have her take her pants off so that he could look at the knee.
She noted that she was treated by Dr. Tambakis and that her present “knee doctor” is
Dr. David S. Menche, a Board-certified orthopedic surgeon. Appellant testified that she is not
working because of her left knee injury.
In an October 14, 2009 report, Dr. Menche indicated that appellant was seen for
persistent complaints regarding her left knee. He noted that she had positive medial joint line
tenderness, negative lateral joint line tenderness and mild patella facet joint line tenderness.
Dr. Menche noted that he gave appellant an injection and advised her regarding arthroscopic
procedures. In a December 1, 2010 report, he indicated that appellant had persistent complaints
regarding her left knee, that he gave her another injection and that he advised her regarding
arthroscopic intervention. Dr. Menche noted that she was aware of the guarded prognosis in
view of the pathology seen and the chronicity of her symptoms.

2

By decision dated March 8, 2011, OWCP affirmed the decision terminating wage-loss
compensation and medical benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 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.3 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require medical treatment.5
ANALYSIS
OWCP accepted appellant’s claim for sprain of unspecified sites, left knee and leg. It
terminated her compensation and medical benefits effective August 18, 2010 because it found
that she no longer had any residuals from this accepted employment condition. In making this
determination, OWCP found that the weight of the medical evidence was represented by the
opinion of Dr. Orlandi, the second opinion physician.
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective August 18, 2010. In order to determine the extent and degree of any employmentrelated disability, OWCP referred appellant to Dr. Orlandi for a second opinion examination.
Dr. Orlandi opined that appellant’s strain of her left knee had resolved and that she could return
to work without restriction and needed no further treatment. He noted that appellant had no
musculoskeletal disability and no lumbar spasm. Dr. Orlandi further noted that there was no
swelling in appellant’s left knee and no patellar abnormality. As he properly explained the basis
for his opinion that there was no continuing disability due to the accepted employment injuries
and that these conditions had resolved, OWCP properly gave the weight of the medical evidence
to his opinion and terminated appellant’s benefits.
Dr. Tambakis, appellant’s treating orthopedic surgeon, stated that appellant continued to
have marked disability in her knees causally related to the employment-related injury. However,
Dr. Tambakis referred to derangement of the left knee and synovitis of her right knee, both
2

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

3

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988); see I.R., Docket No. 09-1229 (issued
February 24, 2010).
4

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
5

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003); B.K., Docket No. 08-2002 (issued
June 16, 2009).

3

conditions which had never been accepted. Appellant’s claim has only been accepted for sprain
of the left knee and leg. Dr. Tambakis’ opinion does not establish that appellant continues to
have disability causally related to her accept condition.
The opinions of Dr. Menche do not address the issue of causal relationship between
appellant’s left knee pain and the accepted left knee and leg sprains. They do not provide a firm
diagnosis and do not address continued employment-related disability.
Accordingly, OWCP properly found that the weight of the medical evidence, as
represented by Dr. Orlandi, established that the accepted work injury had resolved and properly
terminated appellant’s medical and compensation benefits.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective August 18, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 8, 2011 is affirmed.
Issued: July 23, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF AGRICULTURE,
ANIMAL & PLANT HEALTH INSPECTION
SERVICE, Newnan, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1181
Issued: January 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 4, 2015 appellant filed a timely appeal from February 3 and March 19, 2015
merit decisions and an April 16, 2015 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish additional
medical conditions due to her July 25, 2014 employment injury; (2) whether appellant met her
1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its
discretion the Board, by an October 9, 2015 order, denied appellant’s request for an oral argument before the Board,
noting that her arguments on appeal could be adequately addressed in a Board decision based on a review of the case
record as submitted. Order Denying Request for Oral Argument, Docket No. 15-1181 (issued October 9, 2015).

burden of proof to establish disability due to her employment injury on December 12 and 23,
2014; and (3) whether OWCP properly denied appellant’s request for a hearing as untimely filed.
FACTUAL HISTORY
On July 25, 2014 appellant, then a 39-year-old animal caretaker, filed a traumatic injury
claim (Form CA-1) alleging that while at work on July 25, 2014 she sustained a lower back
injury when she tried to hold back a dog she was walking from lunging at another dog
approaching from the opposite direction. OWCP accepted her claim for a lumbar sprain.
Appellant received wage-loss compensation on the daily rolls beginning September 15, 2014 for
periods she was off work.3
A November 5, 2014 magnetic resonance imaging (MRI) scan report of appellant’s
lumbar spine contained findings describing a moderate disc bulge at L4-5 with a mild degree of
spinal stenosis and mild disc bulges at L3-4 and L5-S1. The impression portion of the report
indicated “[d]egenerative changes as described” and “[m]ild spinal stenosis at L4-5.”
On November 12, 2014 OWCP received a request, signed by Dr. Michael A. McHenry,
an attending Board-certified orthopedic surgeon, for authorization of facet joint injections at L45 and L5-S1 to treat lumbosacral spondylosis without myelopathy and displacement of cervical
intervertebral without myelopathy.
In a December 11, 2014 letter, OWCP advised appellant that she had not submitted
medical evidence supporting authorization of facet joint injections at L4-5 and L5-S1. It noted
that the July 25, 2014 employment injury had not been accepted for lumbosacral spondylosis
without myelopathy or displacement of cervical intervertebral without myelopathy, and that the
medical evidence did not explain how the requested treatment was necessitated by the accepted
lumbar sprain. OWCP requested that appellant submit medical evidence supporting her request
for treatment authorization within 30 days of the date of its December 11, 2014 letter.
In a December 12, 2014 report, Dr. McHenry described his administration on that date of
facet joint injections at L4-5 and L5-S1. He noted that a recent MRI scan demonstrated disc
bulges at L3-4, L4-5, and L5-S1 and facet arthroscopy, and indicated that appellant complained
of a recent flare-up of low back pain. Dr. McHenry diagnosed lumbosacral spondylosis without
myelopathy.4 In a December 12, 2014 note, he indicated, “Please excuse [appellant] from work
today. She is able to return on December 13, 2014.”
On December 17, 2014 OWCP received a claim for compensation (Form CA-7) in which
appellant claimed wage-loss compensation due to time lost from work to obtain medical care on
December 12, 2014. Appellant claimed eight hours of leave without pay (LWOP) for that date.
By letter dated December 23, 2014, OWCP requested that appellant submit medical
evidence supporting her claim for eight hours of LWOP on December 12, 2014. It noted that her
3

Appellant stopped work on July 25, 2014 and later returned to light-duty work for the employing establishment.

4

Dr. McHenry noted, “She has evidence of a lumbar strain from a work event on August 1, 2014.”

2

claim had only been accepted for a lumbar sprain and provided her 30 days to submit the
requested evidence.
Appellant submitted a December 23, 2014 report in which Dr. McHenry described his
administration on that date of facet joint injections at L3, L4, and L5. Dr. McHenry again
discussed the findings of a recent MRI scan, noted that appellant complained of a recent flare-up
of low back pain, and diagnosed lumbosacral spondylosis without myelopathy. In a
December 23, 2014 note, he indicated, “Please excuse [appellant] from work today
(December 23, 2014) as she was seen in our office.”
On January 5, 2015 OWCP received a Form CA-7 in which appellant claimed wage-loss
compensation due to time lost from work to obtain medical care on December 23, 2014.
Appellant claimed eight hours of LWOP for that date.
By letter dated January 13, 2015, OWCP again requested supporting evidence for wageloss compensation for eight hours of LWOP on December 23, 2014.
In a February 3, 2015 decision, OWCP denied appellant’s claim for eight hours of wageloss compensation on December 12, 2014 for medical treatment received on that date. It found
that the medical evidence of record failed to establish that she received treatment for her
accepted July 25, 2014 lumbar sprain on that date.
Appellant submitted a January 23, 2015 report in which Dr. Douglas B. Kasow, an
attending osteopath and Board-certified orthopedic surgeon, reported the findings of his physical
examination on that date. Dr. Kasow diagnosed lumbar sprain, low back pain, lumbosacral
spondylosis without myelopathy, and spinal stenosis of lumbar region. He recommended
decompression surgery to address appellant’s spinal stenosis and degenerative disc disease at L5S1.
In a February 2, 2015 letter, Dr. McHenry referenced appellant’s July 25, 2014 injury and
noted that at the initial visit on August 4, 2014 she was evaluated and treated “using the workrelated condition as lumbar sprain 846.0.” He indicated that she was sent to physical therapy for
core strengthening, stretching, and gait training and a lumbar spine MRI scan was completed on
November 5, 2014. Dr. McHenry noted, “After reading the MRI [scan] results, it was apparent
that [appellant] had sustained more than a lumber strain which was originally her diagnosis. I
would like this case to be expanded to include code 721.3 lumbosacral spondylosis without
myelopathy.”
OWCP received a request for oral hearing on March 16, 2015, which was in connection
with OWCP’s February 3, 2015 decision.
In a March 19, 2015 decision, OWCP found that appellant had failed to establish
additional medical conditions due to her July 25, 2014 employment injury. It explained that the
medical evidence of record did not contain a rationalized medical opinion establishing that she
sustained a medical condition other than the accepted lumbar sprain due to the July 25, 2014
employment incident. The evidence did not provide sufficient rationale to accept additional
diagnosed conditions, including lumbosacral spondylosis without myelopathy, as related to the
original July 25, 2014 employment incident.
3

In another March 19, 2015 decision, OWCP denied appellant’s claim for eight hours of
wage-loss compensation on December 23, 2014 for medical treatment received on that date. It
found that the medical evidence of record did not contain an opinion showing that she received
treatment for her accepted July 25, 2014 lumbar sprain on that date.
In an April 16, 2015 decision, OWCP denied appellant’s request for a hearing with an
OWCP hearing representative. It found that her request was untimely as it was not filed within
30 days of the issuance of its February 3, 2015 merit decision. OWCP indicated that appellant’s
request for a hearing in connection with the February 3, 2015 decision was postmarked
March 12, 2015. It noted that, in its discretion, it had carefully considered her request and had
determined that the issue of the case could equally well be addressed by requesting
reconsideration and submitting additional medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.6 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 1
OWCP accepted that on July 25, 2014 appellant sustained a lumbar sprain when she tried
to hold back a dog she was walking from lunging at another dog. She later claimed that she
sustained a more serious medical condition on July 25, 2014 than the accepted lumbar sprain,
specifically she claimed that she sustained lumbosacral spondylosis without myelopathy. The
Board finds that appellant did not meet her burden of proof to establish additional medical
conditions due to her July 25, 2014 employment injury.

5

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

6

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

7

Leslie C. Moore, 52 ECAB 132 (2000).

8

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

4

In a February 2, 2015 letter, Dr. McHenry, an attending Board-certified orthopedic
surgeon, referenced appellant’s July 25, 2014 employment injury and noted that, at the initial
visit on August 4, 2014, appellant was evaluated and treated “using the work-related condition as
lumbar sprain 846.0.” He indicated that she underwent a lumbar spine MRI scan on
November 5, 2014 and noted, “After reading the MRI [scan] results, it was apparent that she had
sustained more than a lumbar strain which was originally her diagnosis. I would like this case to
be expanded to include code 721.3 lumbosacral spondylosis without myelopathy.”
The submission of this letter does not establish appellant’s claim for additional medical
conditions due to her July 25, 2014 employment injury. Dr. McHenry did not provide any
medical rationale in support of his conclusion that she sustained lumbosacral spondylosis without
myelopathy due to the July 25, 2014 employment injury. The Board has held that a medical
report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale.9 Dr. McHenry did not
describe the July 25, 2014 employment incident in any detail or explain how it could have been
competent to cause the condition of lumbosacral spondylosis without myelopathy. Such medical
rationale is particularly necessary because the November 2014 MRI scan showed degenerative
changes in the discs of appellant’s lumbar spine. There is no medical evidence of record
showing that these degenerative changes were related to employment factors. Dr. McHenry
produced other reports containing diagnosed conditions such as lumbosacral spondylosis without
myelopathy and displacement of cervical intervertebral without myelopathy, but these reports do
not contain a rationalized medical opinion relating these conditions to the July 25, 2014
employment injury.
In a January 23, 2015 report, Dr. Kasow, an attending osteopath and Board-certified
orthopedic surgeon, reported physical examination findings and diagnosed lumbar sprain, low
back pain, lumbosacral spondylosis without myelopathy, and spinal stenosis of lumbar region.
He recommended decompression surgery to address appellant’s spinal stenosis and degenerative
disc disease at L5-S1. This report is also of limited probative value regarding appellant’s claim
for additional medical conditions due to the July 25, 2014 employment injury because Dr. Kasow
failed to provide any opinion on the cause of these conditions. The Board has held that medical
evidence which does not offer a clear opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.10
On appeal, appellant asserts that the medical evidence of record showed she sustained a
more serious injury on July 25, 2014 than a lumbar sprain. The Board finds that she has not met
her burden of proof to establish any additional medical conditions in her claim.
LEGAL PRECEDENT -- ISSUE 2
For each period of disability claimed, the employee has the burden of proving that she
was disabled for work as a result of the accepted employment injury.11 As used in FECA, the
9

C.M., Docket No. 14-88 (issued April 18, 2014).

10

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

11

Fereidoon Kharabi, 52 ECAB 291 (2001).

5

term disability means incapacity, because of an employment injury, to earn the wages that the
employee was receiving at the time of injury. Disability is thus, not synonymous with physical
impairment, which may or may not result in an incapacity to earn wages.12 Whether a particular
injury caused an employee disability from employment is a medical issue, which must be
resolved by competent medical evidence.13
With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care, for injuries.14 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition.15 However, OWCP’s
obligation to pay for medical expenses and expenses incidental to obtaining medical care, such
as loss of wages, extends only to expenses incurred for treatment of the effects of any
employment-related condition. Appellant has the burden of proof, which includes the necessity
to submit supporting rationalized medical evidence.16
OWCP’s procedures provide that wages lost for compensable medical examination or
treatment may be reimbursed. It notes that a claimant who has returned to work following an
accepted injury or illness may need to undergo examination or treatment and such employee may
be paid compensation for wage loss while obtaining medical services and for a reasonable time
spent traveling to and from the medical provider’s location.17 As a rule, no more than four hours
of compensation or continuation of pay should be allowed for routine medical appointments.
Longer periods of time may be allowed when required by the nature of the medical procedure
and/or the need to travel a substantial distance to obtain the medical care.18
ANALYSIS -- ISSUE 2
On December 17, 2014 OWCP received a claim for compensation (Form CA-7) in which
appellant claimed wage-loss compensation due to time lost from work to obtain medical care on
December 12, 2014. Appellant claimed eight hours of LWOP for that date. On January 5, 2015
OWCP received a Form CA-7 in which she claimed wage-loss compensation due to time lost
from work to obtain medical care on December 23, 2014. Appellant claimed eight hours of
LWOP for that date.

12

See Cheryl L. Decavitch, 50 ECAB 397 (1999).

13

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

14

5 U.S.C. § 8103(a).

15

Vincent E. Washington, 40 ECAB 1242 (1989).

16

Dorothy J. Bell, 47 ECAB 624 (1996).

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19
(February 2013). See also Daniel Hollars, 51 ECAB 355 (2000).
18

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).

6

The Board finds that appellant failed to establish that she obtained medical care on those
dates for her accepted July 25, 2014 employment injury, a lumbar sprain.
In a December 12, 2014 report, Dr. McHenry described his administration on that date of
facet joint injections at L4-5 and L5-S1. He noted that a recent MRI scan demonstrated disc
bulges at L3-4, L4-5, and L5-S1 and facet arthroscopy, and indicated that appellant complained
of a recent flare-up of low back pain. Dr. McHenry diagnosed lumbosacral spondylosis without
myelopathy.19 In a December 23, 2014 report, he described his administration on that date of
facet joint injections at L3, L4, and L5. Dr. McHenry again discussed the findings of a recent
MRI scan, noted that appellant complained of a recent flare-up of low back pain, and diagnosed
lumbosacral spondylosis without myelopathy.20
The submission of these reports does not establish appellant’s claim for wage-loss
compensation for December 12 and 23, 2014. Dr. McHenry indicated that he was providing
treatment, including facet joint injections between L3 and S1, for the condition of lumbosacral
spondylosis without myelopathy. However, for the reasons explained above, it has not been
accepted that appellant sustained lumbosacral spondylosis without myelopathy, or any condition
other than lumbar sprain, on July 25, 2014. Dr. McHenry did not provide a rationalized medical
opinion that his medical treatment on December 12 and 23, 2014 was for the accepted condition
of lumbar sprain.21 Because appellant did not demonstrate treatment for an accepted
employment condition on December 12 and 23, 2014, she has not met her burden of proof to
establish wage-loss compensation on those dates.22
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 3
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP representative, provides in pertinent part: “Before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his or her
claim before a representative of the Secretary.”23 As section 8124(b)(1) is unequivocal in setting
19

In a December 12, 2014 note, Dr. McHenry indicated, “Please excuse [appellant] from work today. She is able
to return on December 13, 2014.”
20

In a December 23, 2014 note, Dr. McHenry indicated, “Please excuse [appellant] from work today
(December 23, 2014) as she was seen in our office.”
21

Dr. McHenry noted in both reports, “She has evidence of a lumbar strain from a work event on
August 1, 2014.” In addition to the fact that he misidentified appellant’s date of injury, Dr. McHenry did not
provide an opinion that his medical treatment on December 12 and 23, 2014 was for the accepted condition of
lumbar sprain.
22

See supra notes 11 through 18.

23

5 U.S.C. § 8124(b)(1).

7

forth the time limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter
of right unless the request is made within the requisite 30 days.24 The date of filing is fixed by
postmark or other carrier’s date marking.25
The Board has held that OWCP, in its broad discretionary authority in the administration of
FECA, has the power to hold hearings in certain circumstances where no legal provision was made
for such hearings and that OWCP must exercise this discretionary authority in deciding whether to
grant a hearing.26 Specifically, the Board has held that OWCP has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to FECA which provided the right to a hearing,27 when the request is made after the
30-day period for requesting a hearing,28 and when the request is for a second hearing on the same
issue.29
ANALYSIS -- ISSUE 3
In the present case, appellant’s hearing request was postmarked March 12, 2015 and
therefore was made more than 30 days after the date of issuance of OWCP’s prior decision dated
February 3, 2015 and, thus, she was not entitled to a hearing as a matter of right.30 Hence, OWCP
was correct in finding in its April 16, 2015 decision that she was not entitled to a hearing as a
matter of right because her hearing request was not made within 30 days of OWCP’s February 3,
2015 decision.
While OWCP also has the discretionary power to grant a hearing when a claimant is not
entitled to a hearing as a matter of right, OWCP, in its April 16, 2015 decision, properly exercised
its discretion by indicating that it had carefully considered appellant’s request and had determined
that the issue of the case could equally well be addressed by requesting reconsideration and
submitting additional medical evidence. The Board has held that as the only limitation on
OWCP’s authority is reasonableness, abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deduction from established facts.31 In the present case, the evidence of
record does not indicate that OWCP committed any act in connection with its denial of appellant’s
hearing request which could be found to be an abuse of discretion.
24

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

25

See 20 C.F.R. § 10.616(a).

26

Henry Moreno, 39 ECAB 475, 482 (1988).

27

Rudolph Bermann, 26 ECAB 354, 360 (1975).

28

Herbert C. Holley, 33 ECAB 140, 142 (1981).

29

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

30

In its February 3, 2015 decision, OWCP denied appellant’s claim for wage-loss compensation for
December 12, 2014.
31

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

8

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish additional
medical conditions due to her July 25, 2014 employment injury or to establish disability due to
her employment injury on December 12 and 23, 2014. The Board further finds that OWCP
properly denied her request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 16, March 19, and February 3, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1172
Issued: November 14, 2017

Case Submitted on the Record

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

JURISDICTION
On May 8, 2017 appellant filed a timely appeal from an April 4, 2017 merit decision and
an April 26, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has established an emotional condition in the
performance of his federal employment, and (2) whether OWCP properly denied appellant’s
request for reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted evidence on appeal. The Board’s jurisdiction is limited to reviewing the evidence that was
before OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the
Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has been before the Board on a prior appeal.3 The facts of the case as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 12, 2015 appellant, then a 42-year-old mail handler, filed a traumatic injury
claim (Form CA-1). He alleged that on March 27, 2012 he sustained an emotional condition as a
result of being improperly placed on absent without leave (AWOL) status for March 27, 2012.
On the claim form appellant indicated that his father had died on March 27, 2012. He also
reported that he was subject to workplace harassment and bullying.
Appellant submitted a calendar for January to May 2012, showing various dates as
“AWOL,” including March 27, 2012. In an undated statement received on February 18, 2015, he
asserted that he should have been placed on Family and Medical Leave Act (FMLA) leave for
March 27, 2012, as he had a chronic low back condition and was seen by a physician on
March 25 and 27, 2012.4 He also reported that March 27, 2012 was a scheduled vacation day,
and that his father’s death should have been considered as an emergency circumstance.
The employing establishment submitted a letter dated March 24, 2012 to appellant from
his supervisor. The supervisor indicated that appellant had requested leave, but did not have
enough work hours to qualify for FMLA. According to him, appellant would be placed in
AWOL status until appropriate documentation was submitted to justify an absence. The letter
reported that appellant had not complied with employing establishment regulations regarding
absences, and therefore was charged with AWOL. To change the leave status to sick leave or
other approved leave, it was necessary that appellant provide medical documentation.
The record contains an “investigative interview” form from appellant’s supervisor,
requesting an explanation regarding specific dates of absence from January 6 to May 12, 2012,
including March 27, 2012. In a “notice of removal” dated June 4, 2012, the employing
establishment alleged that appellant had violated a “last chance” agreement dated October 18,
2010 to maintain a satisfactory attendance record.5 Appellant submitted a decision dated
August 26, 2012 from the California Unemployment Insurance Appeals Board. In an undated
note, appellant argued that the decision showed that he did call the employing establishment on
March 27, 2012 to explain his absence. The decision itself found that appellant had no
documentary record or corroboration for calling the employing establishment from March 20 to
April 14, 2012. Appellant also submitted a portion of a Merit Systems Protection Board (MSPB)
decision, which found that the employing establishment’s removal against appellant was
sustained.

3

Docket No. 16-0711 (issued June 27, 2016).

4

The record contains a report dated March 25, 2012 from Dr. Anjum Sameena, a Board-certified family
practitioner, which indicated that appellant was seen for back pain.
5

A grievance form filed with respect to the notice of removal reports that appellant was removed from the
employing establishment on July 15, 2012.

2

An arbitrator’s decision dated June 17, 2013 denied a grievance filed regarding
appellant’s removal, and found that appellant had violated a last chance agreement. As to
March 27, 2012, the arbitrator found that appellant had subsequently been approved for funeral
leave due to the death of his father.
By undated e-mail correspondence received on January 13, 2015, appellant’s supervisor
reported that appellant had a history of attendance issues. He indicated that he was not informed
that appellant’s father had passed away, and any unapproved leave during that period was due to
attendance irregularities.
By decision dated April 27, 2015, OWCP denied the claim for compensation. It found
appellant had not established a compensable work factor.
On May 6, 2015 appellant requested a review of the written record by an OWCP hearing
representative. He argued that he believed the evidence showed error by the employing
establishment in placing him on AWOL. Appellant submitted Board decisions that did not
involve claims for emotional conditions.
By decision dated September 11, 2015, the hearing representative affirmed the April 27,
2015 decision which denied appellant’s claim. She found appellant had not established a
compensable work factor with respect to administrative error on March 27, 2012, or regarding an
allegation of harassment and bullying.
On February 17, 2016 appellant filed an appeal with the Board. The Board affirmed the
September 11, 2015 OWCP decision.6 The Board found appellant had not established a
compensable work factor with respect to administrative error on March 27, 2012, or any
allegation of harassment.
On July 20, 2016 appellant requested reconsideration. He submitted a copy of the
September 11, 2015 OWCP decision, with handwritten notes asserting that he did not file a
traumatic injury claim. Appellant submitted a copy of an April 27, 2015 OWCP decision, which
found appellant had filed an occupational disease claim.7 In addition, he resubmitted the
decision from the California Unemployment Insurance Appeals Board, denying the claim for
benefits.
In an undated statement, appellant wrote that he was never asked about harassment or
bullying by OWCP. He wrote that he did not submit evidence on harassment and bullying
because the claim was being developed for his allegation regarding AWOL status on
March 27, 2012. Appellant submitted additional medical evidence regarding treatment for
conditions that included his back.

6

Supra note 3.

7

As the Board noted in the prior appeal, appellant filed a Form CA-1 traumatic injury claim on January 12, 2015.
Appellant has also filed occupational disease or illness claims (Form CA-2) with respect to an emotional condition.
With respect to the January 12, 2015 claim, OWCP has addressed the allegation of administrative error on
March 27, 2012, and an allegation of harassment and bullying.

3

In another undated statement, appellant wrote that he was alleging that the employing
establishment erred with respect to investigative interviews on May 15, 2012, regarding the
March 27, 2012 administrative action. He asserted that he did call in on March 27, 2012, and
again asserted that he was improperly placed in AWOL status. Appellant reiterated his belief
that he had established a compensable work factor.
As to additional documents, appellant submitted an April 21, 2015 letter from the Office
of Personnel Management (OPM) indicating his claim for disability retirement was approved.
He wrote on the letter that if he was approved for disability retirement he should also be
approved for workers compensation.
By decision dated April 4, 2017, OWCP reviewed the merits and denied modification. It
found the evidence did not establish a compensable work factor and was insufficient to warrant
modification of the prior decision.
On April 11, 2017 appellant requested reconsideration. He wrote on a copy of the
April 4, 2017 decision that he was alleging there was no “big difference between a no call
AWOL” and other AWOL status and it was not clear whether he was on AWOL status due to no
call or denied leave.
By decision dated April 26, 2017, OWCP denied appellant’s request for reconsideration
of the merits of the claim pursuant to 5 U.S.C. § 8128(a). It found the evidence was insufficient
to warrant a merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
Appellant has the burden of proof to establish by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.8 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.9 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.10
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it, but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
8

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

9

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

10

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

4

emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.11
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.12 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively, or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to establish an emotional condition in the
performance of his federal employment.
The Board notes that appellant has not asserted that his regular or specially assigned work
duties caused his alleged emotional condition. In the present case, appellant alleges
administrative error when the employing establishment placed him on AWOL for
March 27, 2012. The record indicates that the employing establishment did subsequently
approve leave based on his father’s death.
Appellant’s primary allegation is the he sustained an emotional condition as a result of
actions by the employing establishment on March 27, 2012. He had alleged that it was error by
the employing establishment to initially place him on AWOL for March 27, 2012. A reaction to
an administrative or personnel matter is generally not covered as it is not related to the
performance of regular or specially assigned duties.14 Nevertheless, if the evidence demonstrates
that the employing establishment erred, acted abusively, or unreasonably in the administration of
a personnel matter, any physical or emotional condition arising in reaction to such error or abuse
may be covered.15 The evidence that was before OWCP at the time of the September 11, 2015
OWCP decision, discussed by the Board in its prior decision, failed to establish error or abuse by
the employing establishment. The Board indicated that evidence showed appellant was placed
on AWOL status until he submitted proper documentation as to the absence from work. After
appellant submitted documentation regarding his father’s death, he was granted leave. No
evidence of error or abuse was presented.
Appellant has not submitted any additional evidence establishing a compensable work
factor in this regard. He has submitted numerous statements, often on copies of decisions or
other documents, reiterating his allegation of error, but no probative evidence establishes any
error by the employing establishment on March 27, 2012. While appellant asserts that he did call
11

Lillian Cutler, 28 ECAB 125 (1976).

12

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

13

Margreate Lublin, 44 ECAB 945, 956 (1993).

14

Supra note 12.

15

Supra note 13.

5

in to the employing establishment, there was no contemporaneous evidence presented that he had
notified the employing establishment of the reason for his absence on March 27, 2012.
The submission of evidence regarding an OPM decision on disability retirement does not
establish an employment injury under FECA.16 Appellant also referred to investigative
interviews on May 15, 2012. No evidence of error was submitted regarding any interviews in
connection with appellant’s absence on March 27, 2012.
With respect to any allegation of harassment or bullying, appellant submitted no
probative evidence. He wrote that OWCP had not requested evidence, but it is appellant’s
burden of proof to submit evidence necessary to establish any claim of harassment or bullying.17
Appellant did not establish a compensable work factor regarding an allegation of harassment or
bullying.
The Board finds that appellant has not established a compensable work factor. Since
appellant has not established a compensable work factor, the claim is not established and the
Board will not address the medical evidence.18
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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,19
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.”20
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.21

16

See S.S., Docket No. 15-0780 (issued September 3, 2015); Daniel Deparini, 44 ECAB 657 (1993).

17

E.H., Docket No. 13-0559 (issued August 21, 2013).

18

See Margaret S. Krzycki, 43 ECAB 496 (1992).

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
19

20

20 C.F.R. § 10.606(b)(3).

21

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

6

ANALYSIS -- ISSUE 2
The Board also finds that OWCP did not abuse its discretion by denying appellant’s
request for reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration appellant alleged that there was “no big difference between a no call
AWOL status and other AWOL status.” As discussed above, the underlying issue is whether
there was administrative error in initially placing him on AWOL status for March 27, 2012. This
is a legal issue.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, or advance a relevant legal argument not previously considered by OWCP. He made a
general statement, expressing his own opinion, as to AWOL status without discussing a point of
law or advancing a relevant legal argument regarding a compensable work factor in this case.
The Board also finds that appellant did not submit any evidence with his request for
reconsideration. Therefore he did not submit any relevant and pertinent new evidence which
would require a merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advanced a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered by OWCP. Pursuant to
20 C.F.R. § 10.608(b), OWCP properly declined to review the merits of the claim.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of his federal employment. The Board further finds that OWCP properly denied his
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 26 and 4, 2017 are affirmed.
Issued: November 14, 2017
Washington, DC

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

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

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

8