United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Omaha, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-86
Issued: May 18, 2009

Case Submitted on the Record

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

JURISDICTION
On October 15, 2008 appellant filed a timely appeal from an August 8, 2008 merit
decision of the Office of Workers’ Compensation Programs, which affirmed the termination of
her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits for her accepted lumbar condition benefits effective June 14, 2007; and
(2) whether appellant established that she had any continuing disability or residuals of accepted
lumbar condition after May 4, 2007.
FACTUAL HISTORY
This is the second appeal to the Board. In a February 25, 2008 decision, the Board set
aside Office decisions dated February 9 and June 28, 2007 denying appellant’s claim for an

occupational disease and remanded the case for further development.1 The Board found that the
medical evidence was sufficient to require further development and instructed the Office to refer
appellant to an appropriate medical specialist to determine whether she developed carpal tunnel
syndrome of the left wrist or tendinitis of the left elbow as a result of performing her
employment duties. The facts and the circumstances of the case as set forth in the Board’s prior
decision are incorporated herein by reference.
The record reveals that, on September 13, 2006, appellant filed an occupational disease
claim for a low back injury due to lifting luggage and standing in her job.2 She submitted reports
from Dr. Peter M. Cimino, a Board-certified orthopedic surgeon, dated August 28 to
October 10, 2006. Dr. Cimino noted that appellant did not relate her injury to a specific incident
but from performing various physical activities at the employing establishment. He diagnosed
lumbar spondylosis and left leg radiculopathy and recommended steroid injections. Dr. Cimino
opined that appellant’s preexisting low back condition was accelerated by her work activities. A
September 11, 2006 magnetic resonance imaging (MRI) scan of the lumbar spine showed diffuse
annular disc bulge with severe loss of disc height at L5-S1 and central disc protrusion with mild
to moderate narrowing at L4-5.
Appellant submitted reports dated December 5, 2006 and February 9, 2007, from
Dr. Bradley S. Bowdino, a Board-certified neurologist. She reported repetitively lifting luggage
while screening passengers at work and attributed her back injury to the work environment.
Dr. Bowdino recommended physical therapy.
Dr. Stephen Hosman, a Board-certified
anesthesiologist, provided treatment from November 13, 2006 to February 13, 2007. He
diagnosed bilateral lumbar radiculopathy and L4-5, L5-S1 protruding discs and recommended
epidural steroid injections.
On April 10, 2007 the Office referred appellant to Dr. Anil K. Agarwal, a Board-certified
orthopedic surgeon, for a second opinion. In a May 7, 2007 report, Dr. Agarwal noted
examining appellant on May 4, 2007 and reviewed her work history. Low back examination
revealed negative scoliosis, lordosis and kyphosis, normal gait, decreased range of motion with
pain, normal reflexes and strength, no sensory deficit and positive straight left test. Examination
of the thoracic spine showed negative scoliosis and kyphosis with normal range of motion.
Examination of the cervical spine revealed negative scoliosis, lordosis and kyphosis, normal gait,
normal range of motion, normal cervical compression and Spurling test, normal reflexes and
strength and no sensory deficit. Dr. Agarwal diagnosed possible mild lumbar strain, healing, that
was work related. He also diagnosed preexisting severe foraminal narrowing, mild to moderate
central canal narrowing and chronic lumbar strain. Dr. Agarwal opined that appellant possibly
had a temporary exacerbation of preexisting moderate to severe foraminal stenosis and mild to
moderate central canal narrowing. He reviewed Dr. Cimino’s August 28, 2006 report of lower
back pain with radiation of pain to the left leg, which was present for some time but which had
worsened over within the prior two weeks. Dr. Agarwal indicated that for more than six months
1

Docket No. 07-1878 (issued February 25, 2008).

2

The current appeal to appellant’s claim for a low back condition. The record reveals that appellant filed a
separate claim for a traumatic injury sustained on November 30, 2005, file number xxxxxx259, that was accepted by
the Office for right superior labrum tear. This claim was consolidated with the current one before the Board.

2

appellant did not perform any heavy work and was assigned light duty. He opined that appellant
sustained a temporary aggravation of her preexisting lower lumbar spine condition. Dr. Agarwal
noted a history of no particular incident or repetitive strain to appellant’s back before her claim
of lower back pain and opined that she had a preexisting problem. He prepared a work capacity
evaluation and noted that appellant reached maximum medical improvement and could return to
work full time subject to restrictions.
In a supplemental report dated May 22, 2007, Dr. Agarwal responded to the Office’s
request for further information. He opined that appellant had an exacerbation of her preexisting
back condition. Dr. Agarwal diagnosed preexisting but asymptomatic severe foraminal
narrowing of the lumbar spine with mild to moderate central canal narrowing and chronic lumbar
strain. He opined that appellant most likely sustained a mild lumbar strain at work and had
preexisting problems which were asymptomatic. Dr. Agarwal advised that appellant reached
maximum medical improvement and returned to preinjury status and sustained no permanent
impairment due to her work injury.
On May 30, 2007 the Office accepted appellant’s claim for temporary aggravation of
spinal stenosis of the lumbar region. It noted that Dr. Agarwal had determined that the
temporary aggravation had ceased and appellant returned to her preinjury status with no
permanent impairment.
By decision dated June 14, 2007, the Office terminated appellant’s compensation benefits
effective May 4, 2007 for the accepted temporary aggravation of lumbar spinal stenosis on the
grounds that the weight of the medical evidence as represented by Dr. Agarwal established that
she had no continuing disability or residuals of her accepted employment injury.
Appellant requested a telephonic hearing, which was held on March 5, 2008. She
submitted reports from Dr. Bowdino dated November 8, 2006 to June 30, 2007. Dr. Bowdino
treated her for back pain and radiating leg pain with an onset of symptoms occurring in
February 2006. He diagnosed degenerative disc disease with disc space collapse and modic
changes at L5-S1. Dr. Bowdino recommended conservative treatment beginning with epidural
steroid injections. On June 1, 2007 he noted that conservative treatment had failed and
recommended an L5-S1 transformational lumbar interbody fusion. On July 16, 2007
Dr. Bowdino performed spinal fusion surgery with a posterior pedicle screw instrumentation,
placement of capstone interbody cage and morcellization of autograft for arthrodesis.3 He
diagnosed severe degenerative disc disease at L5-S1 with leftward herniation at L5-S1.
In reports dated February 13, 2007 to February 25, 2008, Dr. Hosman treated appellant
for low back pain radiating into the hips and legs and administered multiple epidural steroid
injections. An April 3, 2007 lumbar spine MRI scan showed unchanged small central protrusion
at L4-5 and diffuse disc bulge at L5-S1, mild to moderate L4-5 central canal narrowing,
moderate to severe bilateral neural foraminal narrowing at L5-S1 and interspinous ligament
degenerative changes at L4-5 and L5-S1. An October 9, 2007 lumbar spine MRI scan revealed
small broad-based central disc protrusion at L4-5, no underlying stenosis, postoperative changes
at L5-S1 with associated granulation tissue around the thecal sac predominately along the left S1
3

This surgery was not authorized by the Office as related to appellant’s accepted work injury.

3

nerve root sheath. In a undated statement, appellant disputed Dr. Agarwal’s finding that she had
returned to preinjury status and asserted that she still had pain and a worsening lumbar condition
for which she underwent surgery in July 2007. She submitted articles describing a herniated
disc.
In a decision dated May 28, 2008, the hearing representative affirmed the June 14, 2007
decision.
On June 24, 2008 appellant requested reconsideration and asserted that she had no back
problem before her work injury. She submitted reports from Dr. Bowdino dated February 9 and
July 16, 2007 and an x-ray of the lumbar spine dated October 8, 2007, all previously of record.
An August 13, 2007 x-ray of the lumbar spine showed posterior changes and disc space fusion at
L5-S1 with anatomic alignment. A May 13, 2008 lumbar spine computerized tomography (CT)
scan revealed spinal instrumentation at L5-S1 with anterior cage fusion of the disc space and
posterior screw and plate fusion with no obvious hardware complication. A May 30, 2008
lumbar spine CT scan noted findings consistent with L4-5 disc herniation, posterior spinal
stenosis, minimal disc bulge at L3-4 and previous L5-S1 posterior stabilization
hemilaminectomy and fusion.
In a decision dated August 8, 2008, the Office denied modification of the May 28, 2008
Office decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 It may not terminate compensation without establishing
that the disability has ceased or that it is no longer related to the employment. The burden of
proof on the Office includes the necessity of furnishing rationalized medical opinion evidence
which is based on a proper factual and medical history.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for temporary aggravation of spinal stenosis of the
lumbar region that had resolved. It based its finding on the reports of Dr. Agarwal, a second
opinion physician.
In a May 7, 2007 report, Dr. Agarwal provided an extensive review of appellant’s
medical history, reported examination findings and diagnosed possible mild lumbar strain,
healing, that was work related. He also diagnosed preexisting severe foraminal narrowing of the
lumbar spine, mild to moderate central canal narrowing and chronic lumbar strain. Dr. Agarwal
opined that appellant had a temporary exacerbation of preexisting moderate to severe foraminal
stenosis and mild to moderate central canal narrowing. He reviewed Dr. Cimino’s August 28,
4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); J.M., 58 ECAB ___ (Docket No. 06-661, issued
April 25, 2007).

4

2006 report, which revealed that appellant’s lower back pain and radiculopathy were present for
some time but had recently worsened. Dr. Agarwal also noted that appellant had been working a
light-duty job for more than six months. He explained that appellant had no ongoing trauma but
had sustained a temporary aggravation of her preexisting lower lumbar spine condition.
Dr. Agarwal noted that appellant experienced no particular incident or repetitive strain to her
back before her claim of lower back pain and opined that this was a preexisting problem. He
prepared a work capacity evaluation and noted that appellant reached maximum medical
improvement and could return to work full time subject to restrictions. In a supplemental report
dated May 22, 2007, Dr. Agarwal diagnosed preexisting but asymptomatic severe foraminal
narrowing of the lumbar spine with mild to moderate central canal narrowing and chronic lumbar
strain. He opined that appellant most likely sustained a mild lumbar strain at work and had
preexisting problems which had been asymptomatic and which were exacerbated. Dr. Agarwal
further opined that appellant reached maximum medical improvement and returned to preinjury
status and sustained no permanent impairment due to her work injury. He did not indicate that
she had any ongoing symptoms or condition attributable to her employment.
Appellant submitted reports from Dr. Bowdino, dated November 8, 2006 to July 16,
2007, who treated her for back pain and leg pain and diagnosed degenerative disc disease with
disc space collapse and modic changes at L5-S1. On July 16, 2007 Dr. Bowdino performed an
L5-S1 transformational lumbar interbody fusion. Other reports from Dr. Hosman dated
November 13, 2006 to February 25, 2008, noted appellant’s continued conservative treatment for
low back pain radiating into the hips and legs. He diagnosed low back, bilateral lumbar
radiculopathy and L4-5, L5-S1 protruding discs and recommended epidural steroid injections.
However, Drs. Bowdino and Hosman did not adequately explain the reasons why any continuing
low back condition, disability or restrictions were causally related to the accepted employment
injury.6 Additionally, their reports did not include a rationalized opinion regarding the causal
relationship between appellant’s current low back condition and her accepted conditions.7
The Board finds that the opinion of Dr. Agarwal represents the weight of the evidence
and establishes that appellant’s work-related conditions have resolved. Dr. Agarwal found that
appellant did not have residuals from the condition of temporary aggravation of spinal stenosis of
the lumbar region, that she returned to preinjury status and could return to her regular duty with
restrictions due to her preexisting conditions. There is no contemporaneous medical evidence of
equal weight supporting appellant’s claim for continuing disability and medical residuals.

6

See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

5

For these reasons, the Office met its burden of proof in terminating appellant’s benefits
for the accepted temporary aggravation of spinal stenosis of the lumbar region.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.8 To establish a causal relationship between the condition, as well as any
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual background, supporting such a causal relationship.
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. 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.9
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals of
her resolved temporary aggravation of spinal stenosis of the lumbar region causally related to her
accepted employment conditions on or after June 14, 2007.
On reconsideration, appellant submitted February 9 and July 16, 2007 reports from
Dr. Bowdino that were previously of record and did not otherwise support a continuing
work-related condition after benefits were terminated. Other reports submitted included x-rays
of the lumbar spine dated August 13 and October 8, 2007, two CT scans of the lumbar spine
dated May 13 and 30, 2008. However, these diagnostic reports do not provide an opinion as to
whether appellant had continuing work-related residuals or disability after June 14, 2007
causally related to her accepted low back condition. Therefore, they are insufficient to establish
appellant’s claim.
None of the medical reports submitted by appellant on reconsideration included a
physician’s rationalized opinion regarding the causal relationship between her current condition
and her accepted work-related conditions.

8

See I.J. 59 ECAB ___ (Docket No. 07-2362); Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia DavisBanks, 44 ECAB 389 (1993); Joseph M. Campbell, 34 ECAB 1389 (1983).
9

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

6

CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
June 14, 2007. The Board further finds that appellant failed to establish that she had any
continuing work-related condition or disability after June 14, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 8 and May 28, 2008 are affirmed.
Issued: May 18, 2009
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1917
Issued: March 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 30, 2008 appellant filed an appeal from a May 16, 2008 decision of the Office of
Workers’ Compensation Programs that suspended his compensation benefits. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether the Office properly suspended appellant’s wage-loss compensation
effective May 11, 2008.
FACTUAL HISTORY
On March 14, 1990 appellant, then a 62-year-old electrician, sustained an employmentrelated cervical strain, left wrist strain and secondary cephalalgia when he was pinned to a wall
while pulling a cable. He stopped work on March 16, 1990 and did not return. Appellant retired
on disability on February 21, 1991 and elected to receive Office compensation benefits,
retroactive to December 13, 1990.

On March 5, 2008 the Office forwarded appellant’s income and employment disclosures
form (EN1032). The accompanying instructions advised him to completely answer all questions
and return the form within 30 days of the date of the letter. Appellant was advised that if he
failed to comply, his benefits would be suspended in accordance with 20 C.F.R. § 10.528 of
Office regulations.1 By letter dated April 10, 2008, the Office informed appellant that it had not
received the required form and again advised him that his wage-loss compensation would be
suspended if he failed to provide the requested information.
By decision dated May 16, 2008, the Office suspended appellant’s wage-loss
compensation, effective May 11, 2008, because he failed to submit the requested EN1032 form.
Appellant was advised that his compensation benefits would be restored retroactively to the date
of suspension when he submitted the requested information.
LEGAL PRECEDENT
Section 10.528 of Office regulations provides that each employee who is receiving
compensation benefits shall complete an affidavit as to any work or activity indicating an ability
to work, which the employee has performed for the prior 15 months and that if the employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss under sections 8105 or 8106 of the Federal Employees’
Compensation Act2 is suspended until the Office receives the requested report. At that time, the
Office will reinstate compensation retroactive to the date of suspension if the employee remains
entitled to compensation.3
ANALYSIS
By letter dated March 5, 2008, the Office forwarded appellant an EN1032 form and
advised him that he had 30 days in which to submit the completed form or his wage-loss
compensation could be suspended. On April 10, 2008 appellant was again provided this
information. The letters were mailed to his address of record.4 The Board finds that by its
March 5 and April 10, 2008 correspondence, the Office properly advised appellant of the
consequences for failing to timely submit the requested EN1032 form that had been provided by
the Office. As appellant did not forward the required information or respond in any way, the
Office properly suspended his wage-loss compensation effective May 11, 2008.5

1

Appellant was also asked to submit an authorization form to obtain earnings information from the Social
Security Administration.
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.528; see Lucille A. Pettaway, 55 ECAB 228 (2004).

4

Appellant had changed to this address in January 2002 and used this address when filing his appeal with the
Board.
5

Supra note 3.

2

CONCLUSION
The Board finds that the Office properly suspended appellant’s wage-loss compensation
effective May 11, 2008.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH FLORIDA/SOUTH GEORGIA
VETERANS HEALTH SYSTEM,
Gainesville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)
)

Docket No. 19-0935
Issued: September 29, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 29, 2019 appellant filed a timely appeal from October 26, 2018 and February 25,
2019 merit decisions and a November 20, 2018 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP).1 The Clerk of the Appellate Boards assigned Docket
No. 19-0935.
On November 17, 2017 appellant, then a 42-year-old nurse, filed an occupational disease
claim (CA-2) alleging that she developed complex regional pain syndrome (CRPS) of the left
shoulder due to factors of her federal employment, including repetitive typing, pulling, pushing,
and lifting. She indicated that on August 25, 2016 she experienced acute left upper extremity pain
with discoloration of the left hand, was later admitted to the hospital for testing, and was diagnosed
with CRPS.

1

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated July 21, 2020, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for
Oral Argument, Docket No. 18-0558 (issued July 21, 2020).

OWCP had previously accepted appellant’s claim for a cervical and lumbar sprain under
OWCP File No. xxxxxx705, sustained on January 31, 2011 when she was struck by a door on her
left scapula, which she claims has also contributed to the development of CRPS. Appellant also
had prior claims for a March 27, 2009 left shoulder injury under OWCP File No. xxxxxx299. She
alleged that those injuries also contributed to the development of CRPS.
In support of her claim, appellant provided a June 28, 2017 report by Dr. Carolina Mejia
Otero, a Board-certified internist and rheumatologist, who noted appellant’s history of multiple
occupational left shoulder injuries and diagnosed possible CRPS of the left upper extremity. She
also submitted a series of reports from Dr. Jorge L. Baez, a physiatrist, dated from February 14,
2011 to August 21, 2013, diagnosing cervical spine conditions and left shoulder tendinitis.
By decision dated January 22, 2018, OWCP denied the claim, finding that the evidence of
record has not established the alleged employment factors. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On January 30, 2018 appellant requested reconsideration. She clarified that the sudden
recrudescence of CRPS in her left upper extremity on August 25, 2016 occurred without an
identifiable injury.
By decision dated May 16, 2018, OWCP modified the January 22, 2018 decision to accept
the alleged factors of federal employment, as well as a diagnosed medical condition. However, it
denied the claim finding that causal relationship was not established.
On May 23, 2018 appellant requested reconsideration. She provided an April 30, 2018
report by Dr. John C. Charnas, Board-certified in occupational medicine, who noted her history of
CRPS subsequent to occupational left upper extremity injuries in 2007, 2009, and 2011.
Dr. Charnas reported appellant’s account of a severe increase of CRPS symptoms that day after a
patient leaned on her left shoulder. Appellant also submitted a May 1, 2018 report by Dr. Otero,
who opined that appellant met the diagnostic criteria for CRPS of the left upper extremity based
on objective clinical signs and a history of the 2007 occupational injury.
By decision dated October 26, 2018, OWCP denied modification of its prior decision.
On November 1, 2018 appellant requested reconsideration, contending that the claimed
CRPS was caused by repeated employment injuries to the left shoulder as claimed under OWCP
File No. xxxxxx299 and OWCP File No. xxxxxx705.
By decision dated November 20, 2018, OWCP denied appellant’s request for
reconsideration.
On November 28, 2018 appellant requested reconsideration.
She submitted a
November 27, 2018 report by Dr. Otero, who opined that appellant’s April 2006, March 2009, and
January 2011 occupational injuries led to CRPS of the left upper extremity.
By decision dated February 25, 2019, OWCP denied modification.

2

The Board has duly considered the matter and finds that the case is not in posture for
decision.
OWCP’s procedures provide that cases should be combined where correct adjudication
depends on cross-referencing between files and where two or more injuries occur to the same part
of the body.2 Under OWCP File No. xxxxxx705, OWCP accepted a January 31, 2011 employment
incident in which a door struck appellant’s left scapula, resulting in accepted cervical and lumbar
strains. Appellant alleged that the accepted January 31, 2011 incident and March 27, 2009 left
shoulder injury claimed under OWCP File No. xxxxxx299 resulted in CRPS of the left upper
extremity. Additionally, OWCP found in its February 25, 2019 decision under the present claim
that adjudication of appellant’s claim required a review of contemporaneous medical records
addressing appellant’s prior left upper extremity injuries. On that basis, for a full and fair
adjudication, the claims in OWCP File Nos. xxxxxx707, xxxxxx299, and xxxxxx705 should be
combined.
Under its procedures, OWCP has determined that cases should be combined where a new
injury case is reported for an employee who previously filed an injury claim for the same part of
the body and where correct adjudication depends on cross-referencing between files.3 This will
allow OWCP to consider all relevant claim files in developing this occupational disease claim.4
Accordingly, the Board will remand the case to OWCP to combine the case records for
OWCP File Nos. xxxxxx707, xxxxxx299, and xxxxxx705 along with any other claim files OWCP
determines should be combined. Following this and such development as deemed necessary,
OWCP shall issue a de novo merit decision on appellant’s claim.

2

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

Id. at Chapter 2.400.8(c)(1); D.F., Docket No. 20-0354 (issued August 4, 2020); C.C., Docket No. 14-1576 (issued
March 9, 2015).
4

Id.

3

IT IS HEREBY ORDERED THAT the January 7, 2019, November 20, and October 18,
2018 decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded to OWCP for further proceedings consistent with this order of the Board.
Issued: September 29, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0253
Issued: March 24, 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 December 10, 2020 appellant filed a timely appeal from a November 16, 2020 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $5,022.00 for the period May 26, 2019 through February 29, 2020 for which he was
without fault, because of an underwithholding of optional life insurance (OLI) premiums from his
FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2016 appellant, then a 62-year-old underground mine safety and health
inspector, filed a traumatic injury claim (Form CA-1) alleging that on October 13, 2016 he injured
his neck when he slipped and fell onto a mine floor while in the performance of duty. OWCP
accepted the claim for strain of muscle(s) and tendon(s) of the right shoulder rotator cuff (tear) and
later expanded the acceptance of the claim to include aggravation of radiculopathy and spinal
stenosis of the cervical region. It paid appellant wage-loss compensation on the supplemental
rolls, effective November 17, 2016, and then on the periodic rolls effective September 17, 2017.
In a September 27, 2017 letter, OWCP outlined appellant’s entitlement to compensation
benefits. It advised him that it was making deductions for health insurance benefits, basic life
insurance (BLI), and OLI premiums (in the amount of $421.20) from his compensation payments
every 28 days.
On February 25, 2020 the Office of Personnel Management (OPM) informed OWCP that
as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI
coverage. The final base salary on which FEGLI was based was $92,316.00. OPM requested
OWCP to deduct for code X0 basic Option A for 75 percent reduction and Option B times five
with no reduction. It noted that appellant’s PRBLI reduction commenced on October 14, 2017.
OPM forwarded an Option B election form that appellant signed on February 14, 2020 freezing all
of his Option B (additional) life insurance at the value as of age 65, to continue for life.
In a preliminary overpayment determination dated April 9, 2020, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $10,819.00 because OLI
and PRBLI premiums after he reached age 65 had not been properly deducted from his FECA
compensation for the period October 14, 2017 through February 29, 2020. It provided an
overpayment calculation. OWCP further advised appellant of its preliminary determination that
he was not at fault in the creation of the overpayment and requested that he complete an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, it notified him that within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In a memorandum of telephone call (Form CA-110) dated April 30, 2020, appellant
informed OWCP that OPM had advised him that he had paid BLI and OLI premiums up to age
65. However, deductions should have continued to have been made as of 2019 when he turned 65
years old and not in 2017 as indicated in OPM’s February 25, 2020 letter.
In a May 11, 2020 amended overpayment referral, OWCP noted that its compensation
history records showed that appellant had paid OLI premiums up to May 25, 2019 and that
deductions for OLI and PRBLI premiums began on March 1, 2020. It further noted that the
overpayment occurred from May 26, 2019 to February 29, 2020, 10 periodic roll cycles. As
appellant’s premium for OLI after age 65 was $502.20 every 28-day cycle, the total overpayment
was $5,022.00.

2

OWCP, in a corrected preliminary overpayment determination also dated May 11, 2020,
informed appellant that he had received an overpayment of compensation in the amount of
$5,022.00 because OLI premiums had not been properly deducted after he turned 65 years old on
May 12, 2019 from his FECA compensation for the period May 26, 2019 through
February 29, 2020. It provided an overpayment calculation. OWCP again found that appellant
was not at fault in the creation of the overpayment and requested that he complete an overpayment
action request form containing appeal rights and a Form OWCP-20 and submit supporting
documentation including copies of tax returns, bank account statements, bills and cancelled
checks, pay slips, and other records which supported the income and expenses listed. It again
notified him that he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. OWCP advised that, under 20 C.F.R. § 10.438, failure to
submit the requested information within 30 days would result in a denial of waiver of recovery of
the overpayment. However, no financial information was submitted by appellant.
On June 8, 2020 appellant requested a telephonic prerecoupment hearing, which was held
on August 31, 2020. He contested the fact and amount of the overpayment and requested waiver
of recovery of the overpayment. Appellant asserted that he was subject to double jeopardy as
OWCP had vacated the initial preliminary overpayment determination, admitted error, but had
thereafter issued a new preliminary overpayment determination. He also indicated that he had
alerted OWCP that premiums were not being withheld properly from his FECA compensation.
By decision dated November 16, 2020, an OWCP hearing representative finalized the
May 11, 2020 preliminary overpayment determination that appellant had received an overpayment
of compensation in the amount of $5,022.00 for the period May 26, 2019 through February 29,
2020, for which he was without fault, because OWCP had failed to deduct OLI premiums after he
reached age 65 from his compensation payments. He found that issuance of a corrected decision,
reducing the amount of the overpayment, did not constitute double jeopardy. The hearing
representative noted the rates of FEGLI premiums effective January 1, 2016. For option B (per
$1,000 of insurance), the bi-weekly premium for age band 65-69 was .54. Based on his rounded
final salary of $93,000.00 and 5x multiple election, appellant was insured for $465,000.00. The
hearing representative further calculated that twice the bi-weekly rate of .54 was 1.08 and
multiplied by 465 equaled a 28-day premium of $502.20. He denied waiver of recovery of the
overpayment as no financial evidence had been submitted in response to the May 11, 2020
preliminary overpayment determination, as requested. Because OWCP did not have the necessary
financial information to determine an equitable monthly repayment amount, the hearing
representative ordered recovery of the overpayment in full within 30 days. Appellant was directed
to contact OWCP if he wished to enter into a monthly repayment agreement.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options. 2 The coverage for BLI is effective unless
waived,3 and premiums for basic and optional life coverage are withheld from the employee’s
2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).

3

pay.4 Upon retirement or upon separation from the employing establishment or being placed on
the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI
coverage in which case the schedule of deductions made will be used to withhold premiums from
his or her annuity or compensation payments.5 BLI coverage shall be continued without cost to
an employee who retired or began receiving compensation on or before December 31, 1989;6
however, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing n o life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium). 8 When an underwithholding of life insurance premiums occurs, the entire
amount is deemed an overpayment of compensation because OWCP must pay the full premium to
OPM upon discovery of the error.9
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty. 10 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled. 11

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

7

Id. at § 8706(b)(3)(B). See J.H., Docket No. 20-0281 (issued May 18, 2021); B.B., Docket No. 17-1733 (issued
March 26, 2018).
8

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April 15, 2019); James J.
Conway, Docket No. 04-2047 (issued May 20, 2005).
9

5 U.S.C. § 8707(d); see also B.B., supra note 7.

10

Id. at § 8102(a).

11

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of OLI premiums from his FECA compensation.
OPM notified OWCP that on February 14, 2020 appellant had elected to freeze all of his
Option B additional life insurance at the value as of age 65. OWCP found that appellant had paid
OLI premiums up to May 25, 2019 when he reached the age of 65 on May 12, 2019 and that
deductions for these premiums began on March 1, 2020, but that it did not deduct the proper
amounts of OLI premiums from appellant’s wage-loss compensation benefits for the period
May 26, 2019 through February 29, 2020. It calculated the amount of the resulting overpayment
as $5,022.00. The record contains compensation payment records, as well as an overpayment
worksheet explaining the overpayment calculation and how the overpayment occurred. While in
compensationer status, appellant remained responsible for all insurance benefits, including the
premiums for OLI at whatever option he or she had selected. 12 Moreover, as noted, when an
underwithholding of life insurance premiums occurs, the entire amount is deemed an overpayment
of compensation because OWCP must pay the full premium to OPM upon discovery of the error. 13
The Board thus finds that OWCP properly determined the fact and amount of the
overpayment. As OWCP failed to properly deduct OLI premiums for the period May 26, 2019
through February 29, 2020, appellant received an overpayment of $5,022.00 during this period. 14
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 15
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 16 Additionally, recovery of an
12

5 C.F.R. § 870.504(b); S.P., Docket No. 17-1888 (issued July 18, 2018).

13

5 U.S.C. § 8102.

14

See J.H., supra note 7; I.J., supra note 8; D.H., Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No.
19-0451 (issued August 7, 2019).
15

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
16

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) (September 2020).

5

overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 18 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment. 20 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. 21 Appellant, however, has the responsibility to provide the appropriate
financial information and documentation to OWCP.22
In its preliminary overpayment determination dated May 11, 2020, OWCP explained the
importance of providing the completed Form OWCP-20 and financial information, including
copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support income and expenses. It advised appellant that it would deny waiver of recovery if he
failed to furnish the requested financial information within 30 days. Appellant, however, did not
respond. As such, OWCP did not have the necessary financial information to determine if recovery
of the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.23

17

Id. at § 10.437(a)(b).

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

20

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

21

20 C.F.R. § 10.436.

22

Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M., Docket No. 17-1802 (issued
August 20, 2018).
23

J.H., supra note 7; D.H., supra note 14.

6

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied
waiver of recovery of the overpayment. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of life insurance premiums. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 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

24

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Morgantown,
WV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-820
Issued: October 14, 2011

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from a January 21, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his emotional condition claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
On appeal, counsel contends that OWCP’s January 21, 2011 decision is “contrary to fact
and law.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 19, 2010 appellant, then a 38-year-old coal mine health and safety inspector,
filed a traumatic injury claim (Form CA-1) claiming that he sustained post-traumatic stress
disorder on April 5, 2010 when he was informed of an explosion at the Upper Big Branch coal
mine in West Virginia. He had just returned to his duty station after inspecting a different coal
mine. In associated statements, appellant described the onset of dizziness and a feeling of
pressure in his head when he saw a television report of the explosion while at work. Coworkers
discussed the report in his presence. Appellant later learned that 29 miners were killed in the
blast.
In a May 20, 2010 statement, appellant’s supervisor described him as an exemplary and
conscientious employee. After the April 5, 2010 incident, appellant worked on April 16, 2010 in
an above-ground office, performed underground mine inspections on April 19 and 20, 2010, and
performed surface work on April 22, 2010. He then stopped work and had not yet returned to
duty.
In a May 28, 2010 letter, OWCP requested that appellant submit additional information
regarding whether seeing coverage of the explosion on April 5, 2010 occurred in the
performance of duty. Appellant responded by June 22, 2010 statement, noting that his attending
physician diagnosed post-traumatic stress disorder and prescribed anti-anxiety medications. He
noted a history of inner ear disturbance with dizziness in 2008. Appellant submitted work diaries
from 2009 mine inspections and a job description listing the duties of a coal mine inspector.
Appellant also submitted medical evidence. January 30, 2008 acute care reports describe
the onset of dizziness possibly due to hypertension. April 5, 2010 vestibular testing was
negative. In an April 10, 2010 report, Dr. Ronald Wilkinson, an attending Board-certified
otolaryngologist, diagnosed vestibular neuritis. On May 10, 2010 Dr. Joseph Annibali, an
attending Board-certified psychiatrist, diagnosed post-traumatic stress disorder due to the
April 5, 2010 incident. In a May 28, 2010 report, Dr. Glenn Paul Carress, an attending licensed
clinical psychologist, diagnosed post-traumatic stress disorder due to the April 5, 2010 incident.
He found appellant totally disabled for work from April 8, 2010 onward.
By decision dated July 8, 2010, OWCP denied appellant’s claim on the grounds that he
failed to establish any compensable employment factors. It accepted the April 5, 2010 incident
as factual but found that it did not occur in the performance of duty. Appellant did not submit
evidence that he inspected the Upper Big Branch mine, that he was at or near the mine at the
time of the explosion, or that he had close relatives at the mine. As appellant had no
occupational or personal connection to Upper Big Branch, OWCP found that his reaction to the
April 5, 2010 explosion was self-generated and noncompensable.
In a July 19, 2010 letter, appellant requested a telephonic hearing, held
November 4, 2010. At the hearing, he noted that he worked as a mine inspector for four years
and as a coal miner before that. Appellant had never been to the Upper Big Branch mine and had
no assigned duties regarding the mine. On April 5, 2010 while sitting in his office filling out
forms after returning from a mine inspection, he heard news of the explosion on television.
Appellant became stressed and dizzy. The following day, he sought medical treatment and was
diagnosed with hypertension. Appellant noted that one of his assigned duties as a coal mine
2

inspector was checking for gas buildup that can lead to mine explosions. He stated that he did
not have any family members involved with the Upper Big Branch explosion.
Following the hearing, appellant submitted June 30 and August 25, 2010 reports from
Dr. Carey McMonagle, an attending Board-certified internist, diagnosing post-traumatic stress
disorder due to the April 5, 2010 incident. Dr. McMonagle found appellant permanently
disabled from working in a mine. In an October 1, 2010 report, Dr. Neal L. Presant, a Boardcertified family practitioner, opined that the post-traumatic stress disorder stemmed from the
April 5, 2010 incident and permanently disabled appellant from working as a mine inspector.
In a January 21, 2010 decision, OWCP’s hearing representative affirmed the July 8, 2010
decision.
LEGAL PRECEDENT
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 an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.2
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.3 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.4
ANALYSIS
Appellant alleged that he sustained post-traumatic stress disorder as a result of an
incident which OWCP found to be noncompensable. Therefore, the Board must review whether
the alleged incident is a covered employment factor under FECA.

2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
3

See Norma L. Blank, 43 ECAB 384 (1992).

4

Id.

3

Appellant claimed that he sustained post-traumatic stress disorder on April 5, 2010 when
he saw television news coverage of the Upper Big Branch mine explosion while he was on duty.
He also heard coworkers discussing the explosion. However, appellant had no official duties
connected to Upper Big Branch. At the hearing, he stated that he had never been to the mine and
performed no work connected to the mine. As appellant did not establish that the Upper Big
Branch mine explosion was in any way connected to his regularly or specially assigned duties, he
did not establish a compensable employment factor under Cutler.5 His reaction to the tragedy
did not arise from his employment and is considered self-generated.6
The Board has found that an employee’s physical presence at a disaster site while in the
performance of duty can be a compensable employment factor. In C.F.,7 the employee was on
duty in a courthouse adjacent to the Murrah Federal Building in Oklahoma City at the time of the
April 19, 1995 bombing. OWCP accepted the claim for an emotional condition resulting from
being present at the explosion while in the performance of duty. In Sedi L. Graham,8 the Board
found it compensable that the employee witnessed the September 11, 2001 attack on the
Pentagon while she was in the performance of duty. In A.B.,9 the Board found a compensable
employment factor where the employee witnessed a plane crashing into the World Trade Center
while she was in the performance of duty on September 11, 2011. However, the present case is
distinguishable from this line of cases as appellant was not physically present at or near the
Upper Big Branch mine at the time of the April 5, 2010 explosion. Therefore, appellant did not
establish a compensable employment factor in this regard.
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty as he failed to establish any compensable factors of
employment. As appellant has not established any compensable work factors, the medical record
need not be addressed.10
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.

5

Lillian Cutler, supra note 3.

6

See David S. Lee, 56 ECAB 602 (2005) (where the Board held that the employee’s perceptions that he was
threatened, in the absence of evidence proving that he was in any danger, was a self-generated reaction not arising in
the performance of duty); Tina L. Elliot, Docket No. 05-1191 (issued October 5, 2005) (where the Board held that
the employee’s fear of anthrax exposure, in the absence of any evidence she was exposed to anthrax in the
performance of her postal duties, was self-generated and noncompensable).
7

C.F., Docket No. 06-1233 (issued November 6, 2006).

8

57 ECAB 494 (2006).

9

A.B., Docket No. 06-2107 (issued January 26, 2007). Cf. Gisele Harris, Docket No. 04-884 (issued January 6,
2005) (where the Board found that an employee witnessing the collapse of the World Trade Center while
commuting home from work was not compensable as the employee was not in the performance of duty at the time
of the incident).
10

Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

4

On appeal, counsel contends that OWCP’s January 21, 2011 decision is “contrary to fact
and law.” As stated, the April 5, 2010 incident did not occur in the performance of duty. As
appellant did not establish any compensable factors of employment, OWCP properly denied his
emotional condition claim.
CONCLUSION
The Board finds that appellant did not establish that he sustained an emotional condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 21, 2011 is affirmed.
Issued: October 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0918
Issued: January 5, 2018

Case Submitted on the Record

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

JURISDICTION
On March 20, 2017 appellant filed a timely appeal from a November 16, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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 the claim.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for
cervical spine surgery.

1
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated August 28, 2017, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying
Request for Oral Argument, Docket No. 17-0918 (issued August 28, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 8, 2014 appellant, then a 62-year-old mail handler technician, filed an
occupational disease claim (Form CA-2) alleging that repetitive job duties at work for over 30
years caused multiple disorders. OWCP accepted other affections of the shoulder region, not
elsewhere classified, right, and brachial neuritis or radiculitis not otherwise specified, right.
An April 8, 2014 magnetic resonance imaging (MRI) scan of the cervical spine
demonstrated disc protrusions at C3-4, C4-5, C5-6, and C6-7, moderate foraminal stenosis at C56, and degenerative facet joint hypertrophy at C3-4 , C4-5, and C5-6. An April 1, 2015 cervical
spine MRI scan showed no significant change from the April 8, 2014 study.
In reports dated April 2, 2015, Dr. Jeffrey Fritz, a Board-certified anesthesiologist, noted
appellant’s 18-month history of shoulder and neck pain. He reviewed cervical and right shoulder
MRI scans and found decreased neck and right shoulder range of motion on physical
examination. Dr. Fritz noted the accepted conditions, advised that appellant had a worsening
neck injury, and provided physical restrictions.
On April 7, 2015 Dr. John C. Milani, a Board-certified orthopedic surgeon, noted that
appellant had worked at the employing establishment since 1983. He described complaints of
neck pain and reviewed the April 1, 2015 cervical spine MRI scan. Following physical
examination, Dr. Milani diagnosed cervical radiculopathy.
He recommended anterior
decompression at C4-5 and C5-6.
On April 13, 2015 Dr. Jack E. Zigler, Board-certified in orthopedic surgery, noted
appellant’s complaint of radiating neck pain. On examination he found abnormal pinprick and
light touch at C6 and C7 dermatomes. Dr. Zigler noted that appellant’s MRI scan demonstrated
multilevel spondylosis with disc and lesions causing central foraminal compression at C5-6 and
C6-7. He recommended an anterior cervical discectomy and fusion (ACDF) procedure at C5-6,
and an arthroplasty at C6-7. Dr. Zigler requested authorization for the recommended procedure.
OWCP paid appellant wage-loss compensation for the period April 6 through 29, 2015
because the employing establishment had no work available within his restrictions.
OWCP requested that its medical adviser review the request for surgery authorization. In
a May 14, 2015 report, Dr. Michael M. Katz, a Board-certified orthopedist and OWCP medical
adviser, reviewed the medical record including MRI scans.
He noted the different
recommendations by Dr. Milani and Dr. Zigler and recommended that appellant undergo a
second opinion evaluation by a neurosurgeon with expertise in surgery of the spine.
Dr. Fritz saw appellant in follow-up on May 13, 2015.
He recommended
electrodiagnostic testing, consisting of an electromyogram (EMG) and nerve conduction velocity
(NCV) study.
OWCP referred appellant to Dr. Marvin E. Van Hal, a Board-certified orthopedic
surgeon, for a second opinion evaluation.

2

In a May 27, 2015 report, Dr. Alan Scott Hamilton, a Board-certified physiatrist,
described appellant’s employment history and job duties and his complaint of neck pain. He
noted the accepted conditions and described physical examination findings. Dr. Hamilton
performed an EMG/NCV study which demonstrated evidence of mild-to-moderate right-sided
sensorimotor ulnar neuropathy at the elbow. He noted that the study did not demonstrate overt
findings of radiculopathy, although appellant presented multiple signs and symptoms clinically
that were consistent with cervical radiculopathy, as demonstrated on his MRI scans.
Cervical spine x-rays on August 6, 2015 demonstrated degenerative changes at C5-6 with
degenerative facet joint hypertrophy at C3-4, C4-5, and C5-6. A right shoulder x-ray that day
was normal.
A functional capacity evaluation (FCE) on August 10, 2015, ordered by Dr. Van Hal,
demonstrated symptoms that involved the neck region radiating into the right upper extremity
with a decrease in range of motion of the neck and right upper extremity. Lifting more than five
pounds caused neck and shoulder pain.
By report dated August 11, 2015, Dr. Van Hal noted that he examined appellant on
August 6, 2015. He described a 32-year employment history and appellant’s complaint of neck
discomfort with repetitive use. Dr. Van Hal noted his review of the statement of accepted facts
and medical record. Examination revealed a positive right shoulder impingement sign, painful
neck range of motion, positive Tinel’s and Phalen’s signs on the right, and dysesthesia at C5.
Dr. Van Hal reviewed the August 6, 2015 x-rays and April 8, 2014 cervical MRI scan. He
diagnosed cervical sprain/strain and right shoulder strain with repetitive use type activity, and
multilevel degenerative disc disorder of the cervical spine that was unrelated to work activity.
Dr. Van Hal advised that he did not concur with the surgery recommendations of Dr. Milani and
Dr. Zigler, and did not agree that any surgery was warranted as there was no correlation between
the proposed surgery and appellant’s symptoms. In an addendum dated August 19, 2015,
Dr. Van Hal noted his review of the August 10, 2015 FCE.
In a report dated August 12, 2015, Dr. Venkat Sethuraman, a Board-certified orthopedic
surgeon, noted appellant’s complaint of radiating neck pain. Following his review of the April 1,
2015 cervical spine MRI scan and physical examination, the physician diagnosed cervical
spondylosis with myelopathy and radiculopathy, spondylopathy, traumatic, and cervical
herniated nucleus pulposus. Dr. Sethuraman recommended an ACDF procedure from C5 to C7.
Surgical authorization was requested.
On August 24, 2015 OWCP referred appellant to Dr. Sofia M. Weigel, a Board-certified
physiatrist.3 Dr. Weigel performed an EMG/NCV study on September 14, 2015. She advised
that there was no evidence of diffuse or entrapment peripheral neuropathy, carpal tunnel
syndrome, ulnar neuropathy, or radiculopathy on the examination. On September 29, 2015
3

In a September 25, 2015 decision OWCP denied appellant’s claim for compensation for the period July 29 to 31,
2015 because he submitted no evidence to support this claim. Appellant had submitted a Form CA-7, claim for
compensation, on August 7, 2015. On August 18, 2015 OWCP informed him of the evidence needed to establish
disability. In a November 5, 2015 decision, OWCP denied appellant’s August 24, 2015 claim for compensation for
the period August 10 to 12, 2015. Appellant appealed these decisions to the Board.

3

Dr. Van Hal noted reviewing Dr. Weigel’s report. Dr. Van Hal opined that, based on the
EMG/NCV study, he was unable to support that appellant had a radiculopathy that would
warrant any operative intervention.
In a September 30, 2015 treatment note, Dr. Sethuraman reiterated his recommendation
that appellant have cervical spine surgery. He requested authorization.
Dr. Fritz saw appellant in follow-up on October 7, 2015 and January 27, 2016. He noted
that Dr. Milani, Dr. Zigler, and Dr. Sethuraman all recommended surgery, and urged that it be
authorized. On the January 27, 2016 report Dr. Fritz indicated that appellant’s injuries were
affecting his activities of daily living, noting that if he sat for an extended period, his head got
heavy.
OWCP determined that a conflict in medical evidence had been created between the
opinions of appellant’s attending surgeons and Dr. Van Hal regarding the need for surgery. On
April 1, 2016 it referred appellant to Dr. Dale R. Allen, a Board-certified orthopedic surgeon, for
an impartial medical evaluation.
In an April 29, 2016 report, Dr. Allen noted a history that on October 1, 2013 appellant
had a neck spasm while at work and had neck problems which he attributed to constantly lifting
and pulling over his shoulder for many years. He related that appellant was presently working
full-time, modified duty. Dr. Allen described his review of the medical record, including MRI
scans and EMG studies. Physical examination demonstrated neck pain with range of motion, no
radicular pain, and some numbness in the C5 area from the back of the thumb into the forearm
on the radial side. Sensory function was otherwise intact, and motor function was 5/5. Dr. Allen
diagnosed preexisting chronic multilevel facet hypertrophy and degenerative disc disease of the
cervical spine from C3-4 to C6-7. He indicated that he agreed with appellant’s attending
physician’s assessment of cervical radiculopathy as it was objectively documented on his
examination. Dr. Allen noted that, as appellant had been able to retain full-time modified
employment, he did not think appellant was a candidate for cervical surgery because he was
stable. He recommended follow-up with Dr. Fritz for pain management. Dr. Allen also
concluded that the recommended surgery was not employment related as it was for appellant’s
preexisting degenerative disc disease of the cervical spine.
By decision dated November 16, 2016, OWCP denied authorization for the proposed
ACDF at C5-6 with arthroplasty at C6-7. It noted that Dr. Allen, the impartial medical specialist,
had indicated that the requested surgery was for a preexisting condition that was not employment
related.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.4
4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4

While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of establishing that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.5
In interpreting section 8193 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.6 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 deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.7 To be entitled to
reimbursement of medical expenses, a claimant has the burden of establishing that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition. Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.8 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the surgery is for a condition causally related to an employment injury and
that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.9
Section 8123(a) 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.10 The implementing regulation
provides that, if a conflict exists between the medical opinion of the employee’s physician and
the medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP
shall appoint a third physician to make an examination. 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.11 When 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.12

5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

See D.K., 59 ECAB 141 (2007).

7

Minnie B. Lewis, 53 ECAB 606 (2002).

8

M.B., 58 ECAB 588 (2007).

9

R.C., 58 ECAB 238 (2006).

10

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

11

20 C.F.R. § 10.321.

12

V.G., 59 ECAB 635 (2008).

5

ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying authorization for
cervical spine surgery. OWCP accepted appellant’s occupational disease claim for other
affections of the shoulder region, not elsewhere classified, right, and brachial neuritis or
radiculitis not otherwise specified, right. On April 7, 2015 Dr. Milani recommended surgical
anterior decompression at C4-5 and C5-6. On April 13, 2015 Dr. Zigler recommended an ACDF
procedure at C5-6 and an arthroplasty at C6-7. Dr. Van Hal, an OWCP referral physician,
opined that appellant’s multilevel degenerative disc disease was not related to work activity. He
advised that the recommended surgery was not warranted, based on appellant’s symptoms and a
negative EMG study. Consequently, OWCP referred appellant to Dr. Allen, to resolve the
conflict.
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Allen, the impartial medical specialist, who examined appellant, reviewed the medical
evidence, and found that the surgical procedure was not recommended for the accepted
conditions, but for preexisting degenerative disc disease of the cervical spine. In his
comprehensive report dated April 29, 2016, Dr. Allen noted his review of the SOAF and medical
record and appellant’s complaints of radiating neck pain. Dr. Allen diagnosed chronic multilevel facet hypertrophy and preexisting degenerative disc disease of cervical spine from C3-4 to
C6-7. He indicated that he agreed with appellant’s attending physician’s assessment of cervical
radiculopathy as it was objectively documented on his examination. Dr. Allen advised that,
since appellant had been able to retain full-time modified employment and was stable, he was not
a candidate for surgery, further noting that it was recommended for preexisting cervical
degenerative disc disease that was not employment related. He recommended follow-up with
Dr. Fritz for pain management.
In situations where the case is referred to an impartial medical specialist for the purpose
of resolving a medical conflict, the opinion of such specialist, if sufficiently well rationalized and
based upon a proper factual background, must be given special weight.13 The Board finds that
Dr. Allen provided a well-rationalized opinion based on a complete background, his review of
the SOAF, the medical record, and his examination findings. Dr. Allen’s opinion that the
requested cervical spine procedure was not medically warranted for the accepted condition is
entitled to special weight and represents the weight of the evidence.14
The only limitation on OWCP’s authority in approving or disapproving service under
FECA is one of reasonableness.15 In the instant case, appellant requested surgery. OWCP
obtained an impartial medical examination by Dr. Allen who clearly opined that the requested
surgery was not warranted for the accepted conditions. OWCP, therefore, had sufficient
evidence upon which it made its decision to deny surgery and did not abuse its discretion.

13

Patricia J. Glenn, 53 ECAB 159 (2001).

14

P.F., Docket No. 16-0693 (issued October 24, 2016).

15

Supra note 6.

6

CONCLUSION
The Board finds that OWCP did not abuse its discretion when it denied appellant
authorization for cervical spine surgery.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1165
Issued: September 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 11, 2008 appellant filed a timely appeal from June 18 and July 25, 2007
decisions of the Office of Workers’ Compensation Programs, denying her claim for bilateral
carpal tunnel syndrome. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained bilateral carpal tunnel syndrome in the
performance of duty; and (2) whether the Office abused its discretion in denying her request for
reconsideration.
FACTUAL HISTORY
On April 10, 2007 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim alleging that she sustained bilateral carpal tunnel syndrome causally related to
factors of her employment. She did not provide a description of her work duties. Appellant
stopped work on that date.

A March 1, 2007 nerve conduction study and electromyography report indicated that
appellant had been experiencing bilateral hand tingling and shooting pain for the past several
months. Test results and the results of a physical examination were provided. However, no
diagnosis or opinion on the cause of her condition was listed.
On April 19, 2007 the Office requested additional evidence including a detailed
description of the employment activities which contributed to her bilateral carpal tunnel
syndrome and a comprehensive medical report containing a description of her symptoms, the
results of examinations and tests and medical rationale explaining how her bilateral carpal tunnel
syndrome was causally related to specific factors of her employment. There was no response
from appellant.
By decision dated June 18, 2007, the Office denied appellant’s claim on the grounds that
the factual and medical evidence was insufficient to establish that her bilateral carpal tunnel
syndrome was causally related to factors of her employment.
On July 17, 2007 appellant requested reconsideration. She did not submit any additional
evidence or argument.
By decision dated July 25, 2007, the Office denied modification of its June 18, 2007
decision.1
LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
evidence.2 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 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.3
1

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

Michael S. Mina, 57 ECAB 379 (2006).

3

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

2

An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between her claimed injury and her
employment.4 To establish a causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by appellant as causing her
condition and, taking these factors into consideration, as well as findings upon physical
examination of appellant and her medical history, state whether the employment factors caused
or aggravated appellant’s diagnosed conditions and present medical rationale in support of his or
her opinion.5
ANALYSIS -- ISSUE 1
The only medical evidence submitted by appellant was a March 1, 2007 nerve conduction
study and electromyography report indicating that she had been experiencing bilateral hand
tingling and shooting pain for the past several months. The report contained test results and
findings on physical examination. However, no diagnosis was provided and no rationalized
explanation was given by a physician as to how appellant’s condition was causally related to her
employment. There is no medical evidence of record with a description of appellant’s job duties,
a specific diagnosis and medical rationale establishing that the diagnosed condition is causally
related to factors of her employment. Therefore, appellant failed to meet her burden of proof to
establish that her bilateral carpal tunnel syndrome was caused or aggravated by her job.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act6 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation.
The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by setting forth arguments that either: (1) shows that the Office erroneously
applied or interpreted a specific point of law; or (2) advances a relevant legal argument not
previously considered by the Office; or (3) constitutes relevant and new pertinent evidence not
previously considered by the Office.7 When an application for review of the merits of a claim
4

Donald W. Long, 41 ECAB 142 (1989).

5

Id.

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

3

does not meet at least one of these requirements, the Office will deny the application for review
without reviewing the merits of the claim.8
ANALYSIS -- ISSUE 2
Appellant submitted no additional evidence or argument in support of her request for
reconsideration, nor did she show that the Office erroneously applied or interpreted a specific
point of law.
The Board finds that appellant did not submit arguments or evidence showing that the
Office erroneously applied or interpreted a specific point of law, advancing a relevant legal
argument not previously considered or constituting relevant and new pertinent evidence not
considered previously by the Office. Therefore, the Office properly denied her request for
reconsideration.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that her
bilateral carpal tunnel syndrome was causally related to factors of her employment. The Board
further finds that the Office did not abuse its discretion in denying her request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 25 and June 18, 2007 are affirmed.
Issued: September 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
8

20 C.F.R. § 10.608(b).

4