United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket No. 08-1043
Issued: April 8, 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, 2008 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated January 25, 2008 which terminated 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.
ISSUE
The issue is whether the Office met its burden of proof to justify termination of
appellant’s compensation benefits effective February 16, 2008.
FACTUAL HISTORY
Appellant has had several prior appeals to the Board. Her September 14, 2000
compensation claim was accepted for bilateral carpal tunnel syndrome. In an August 2, 2002
decision, the Board reversed an Office decision that suspended appellant’s compensation benefits

for failure to participate in vocational rehabilitation.1 In a December 4, 2003 decision, regarding
appellant’s claim for an emotional condition, the Board remanded the case for further
development of the medical evidence.2 In an August 13, 2004 decision, the Board found that the
Office did not meet its burden of proof to terminate compensation benefits.3 In an April 13,
2005 decision, the Board reversed an Office decision and found that the medical evidence
established that appellant sustained depression which was contributed to by an accepted work
factor.4 In an April 3, 1996 decision, the Board affirmed a June 27, 2005 Office decision and
found that the evidence did not support expanding the emotional condition claim.5 In a July 11,
2006 decision, the Board affirmed an Office decision denying appellant’s claim that she
developed bilateral cubital tunnel syndrome, shoulder, foot, leg, neck or lower back conditions in
the performance of duty.6 On May 19, 2006 the Office terminated appellant’s compensation for
her accepted bilateral carpal tunnel syndrome and emotional condition. In a June 14, 2007
decision, the Board found that the Office did not meet its burden of proof to terminate
compensation benefits.7 The facts of the case are set forth in the Board’s prior decisions and are
incorporated herein by reference.
Appellant submitted a letter to the Office dated June 30, 2007 and requested the status of
her compensation as no action had yet been taken since the Board’s June 14, 2007 decision
reversing the Office’s decision terminating her compensation. She submitted a report from
Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon, dated August 13, 2007, who treated
appellant for recurrent bilateral hand numbness and tingling. Dr. Ogunro noted that appellant
had symptoms since 2002 and presented with right middle finger pain. He noted findings of
positive Phalen’s test bilaterally, positive Tinel’s sign left more so than on the right, mild
subluxation over the cubital on the left and normal range of motion on the left and right.
Dr. Ogunro noted that nerve conduction velocity tests dated November 18, 2006 was normal. He
diagnosed bilateral carpal tunnel syndrome with early trigger on the right middle and little finger.
Dr. Ogunro noted the splints were helping. He stated that he was surprised appellant was not
working as he released her to regular duty as a claims examiner with intermittent breaks from
keying. Dr. Ogunro noted that this was discussed with appellant at length.
In a letter to Dr. Ogunro dated September 14, 2007, the Office noted receipt of his
August 13, 2007 report and requested clarification as to whether appellant could return to regular
duty as a claims examiner. It attached a CA-17 form that sets forth a listing of the intermittent
physical requirements for appellant’s claims examiner position and provided that the position
included keyboarding intermittently for six hours per day. The Office noted that Dr. Ogunro’s
1

Docket No. 02-0127 (issued August 2, 2002).

2

Docket No. 03-1447 (issued December 4, 2003).

3

Docket No. 03-1592 (issued August 13, 2004).

4

Docket No. 04-1197 (issued April 13, 2005).

5

Docket No. 05-1623 (issued April 3, 2006).

6

Docket 05-1722 (issued July 11, 2006).

7

Docket No. 06-1309 & 06-1153 (issued June 14, 2007).

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report indicated that appellant could return to regular duty as a claims examiner with intermittent
breaks. In an undated form received October 1, 2007, Dr. Ogunro noted with a checkmark “yes”
that appellant could return to regular duty as a claims examiner. In accompanying September 26,
2007 CA-17 form, he indicated that appellant could perform full time the duties listed on the
form, which included keying for up to six hours daily.
Appellant submitted a work capacity evaluation from Dr. Ogunro dated August 13, 2007
who diagnosed carpal tunnel syndrome. Dr. Ogunro noted that appellant could work eight hours
per day but was not capable of performing her usual job and noted “no keying for more than four
hours intermittent only.” He noted maximum medical improvement had not been reached. In a
duty status report dated September 26, 2007, Dr. Ogunro diagnosed carpal tunnel syndrome and
noted that appellant could return to work full time. He noted restrictions on lifting/carrying
limited to five pounds for one hour per day intermittently, sitting limited to six hours per day
intermittently, standing and walking limited to two hours per day intermittently, no climbing or
kneeling, bending and stooping limited to one hour per day intermittently, twisting,
pulling/pushing and simple grasping limited to two hours per day intermittently, fine
manipulation including keyboarding limited to six hours per day intermittently and reaching
above the shoulder limited to two hours per day intermittently.
On November 20, 2007 the Office proposed to terminate appellant’s wage-loss
compensation benefits on the grounds that Dr. Ogunro’s reports established that appellant could
return to full-time work regular duty as a claims examiner with intermittent breaks from keying
and the CA-17 provided keyboarding is necessary up to six hours per day intermittently.
Appellant submitted a November 29, 2007 statement asserting that she could not perform
the job duties of a claims examiner because it required keyboarding. She attached documents
previously of record from Dr. Ogunro supporting that she could not key for more than four hours
intermittently. Appellant submitted a report from Dr. Ogunro dated November 29, 2007 who
treated her for follow-up evaluation for recurrent bilateral hand numbness and tingling.
Dr. Ogunro noted that appellant reported that she did not resume work because she was not
offered work within her restrictions. He clarified that appellant could work eight hours per day
but she should not key in excess of four hours per day with intermittent breaks. Dr. Ogunro
noted evaluation of the right and left hand revealed negative Tinel’s sign, positive Phalen’s sign,
and sensation to light touch was diminished in the median distribution. Range of motion was
normal in both wrists while triggering of right middle and little fingers had subsided.
In a letter to Dr. Ogunro dated December 20, 2007, the Office noted receipt of his
September 26 and November 29, 2007 reports and requested clarification as to whether appellant
was capable of performing the full functions of the claims examiner position and noted attaching
a list of the physical requirements.8 In a response received on January 22, 2008, Dr. Ogunro
noted with a checkmark “yes” that appellant could return to regular duty as a claims examiner
with intermittent breaks.
Appellant submitted a September 26, 2007 duty status report from Dr. Ogunro,
previously of record.
8

This document was not attached to the correspondence in the file before the Board.

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In an electronic mail from the claims examiner to the employing establishment dated
January 24, 2008, the claims examiner noted appellant’s physician confirmed appellant was
capable of fine manipulation intermittently up to six hours per day which includes keyboarding
with intermittent breaks. The claims examiner requested that the employing establishment
confirm that the position of claims examiner provides intermittent breaks from keyboarding. In
electronic mail correspondence dated January 25, 2008, the employing establishment responded
noting that the claims examiner position allows several breaks from keyboarding, including
breaks from the independent action of using the telephone, signing documents and placing them
in envelopes, reading documents, meeting with walk-in claimants and making copies. The
employing establishment indicated that the claims examiner independently manages their own
workday activities which provides an opportunity to take independent breaks from keyboarding
at their workstation in addition to a 15-minute break in the morning and afternoon and a 30minute lunch break.
In a January 25, 2008 decision, the Office terminated appellant’s wage-loss benefits
effective February 16, 2008 finding that the weight of the medical evidence, as represented by
Dr. Ogunro, established that appellant had no continuing disability and could return to work full
time with restrictions. It noted that Dr. Ogunro provided evidence that appellant could work full
time, regular duty as a claims examiner with intermittent breaks from keyboarding. The decision
did not affect medical benefits.9
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.10 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.11
ANALYSIS
The Board finds that the Office improperly terminated appellant’s wage-loss
compensation based on the opinion of Dr. Ogunro. The Office found that his report established
that appellant was able to return to her regular duties. The record indicates that appellant’s
regular duties as a claims examiner require up to six hours of intermittent keyboarding. The
Office, in proposing to terminate appellant’s compensation, relied on Dr. Ogunro’s narrative
report of August 13, 2007 in which he released appellant to regular duty with intermittent breaks,
and a form report received October 1, 2007 where he generally noted with a checkmark “yes”
that appellant could return to regular duty as a claims examiner; however, in neither report did he
specifically note the amount of keyboarding appellant could perform. The Office also referenced
Dr. Ogunro’s duty status report dated September 26, 2007 providing restrictions on fine
9

The decision did not address appellant’s accepted emotional condition.

10

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

11

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

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manipulation including keyboarding limited to six hours per day intermittently. The Board notes
that Dr. Ogunro also issued an August 13, 2007 work capacity evaluation noting that appellant
could only keyboard for four hours daily, intermittently.
Subsequent to the November 20, 2007 notice of proposed termination, appellant
submitted a November 29, 2007 report from Dr. Ogunro who clarified that appellant could work
eight hours per day but restricted her from keying in excess of four hours per day with
intermittent breaks. Thus, this report clearly indicates that the keying requirement of a claims
examiner position exceeded the restriction set forth by Dr. Ogunro. The Office sought further
clarification on December 20, 2007, when it asked Dr. Ogunro whether appellant was capable of
performing the full functions of the claims examiner position and noted attaching a list of the
physical requirements. However, the attachment noting physical requirements is not of record.
In a response received on January 22, 2008, Dr. Ogunro noted with a checkmark “yes” that
appellant could return to regular duty as a claims examiner with intermittent breaks. The Board
finds that the evidence is insufficient to establish that appellant is capable of performing the
regular duties of her claims examiner position. The medical evidence is unclear whether
appellant can keyboard for only four hours a day or six hours a day intermittently. Dr. Ogunro
has provided differing responses. His most recent report in which he specifically addresses
keyboarding is his November 29, 2007 report which restricts keyboarding to four hours daily.
Dr. Ogunro’s report received on January 22, 2008, while indicating that appellant can perform
regular duties with intermittent breaks, does not specifically address the extent to which she may
use a keyboard and a list of duties, which the Office noted forwarding to the physician, is not of
record. Thus, the report received on January 22, 2008 does not clarify the discrepancy regarding
keyboarding and is insufficient to establish that appellant can return to her regular duties.
Consequently, the Office did not meet its burden of proof in establishing that appellant
could return to her regular duties prior to terminating wage-loss benefits.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof to terminate wage-loss
benefits effective February 16, 2008.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2008 is reversed.
Issued: April 8, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF THE ARMY, BLUEGRASS
ARMY DEPOT, Richmond, KY, Employer
__________________________________________

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

Docket No. 19-1512
Issued: January 7, 2020

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 July 8, 2019 appellant filed a timely appeal from a May 28, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 28, 2019 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On August 29, 2018 appellant, then a 62-year-old toxic materials handler, filed an
occupational disease claim (Form CA-2) alleging that he sustained a throat injury, with
accompanying chronic cough, airway obstruction, and voice hoarseness, due to factors of his
federal employment, including exposure to harmful chemical agents. He indicated that he first
became aware of his claimed injury and first realized its relation to factors of his federal
employment on October 30, 2017. Appellant did not stop work.
In a September 5, 2018 development letter, OWCP requested that appellant submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the claimed factors of his federal employment caused or aggravated a
medical condition. It provided a questionnaire for his completion, which posed a series of
questions regarding the claimed factors of federal employment. OWCP afforded appellant 30 days
to respond. On September 5, 2018 it also requested additional information from the employing
establishment. It was also afforded 30 days to respond.
In response, appellant submitted a September 19, 2018 statement in which he indicated
that, in late 2017, he handled bags containing munitions which had leaked mustard gas. He
reported that on one occasion he was directly exposed to mustard gas from leaking munitions for
approximately 10 minutes. Appellant described his symptoms, including nausea, coughing, and
vomiting, which he experienced beginning six to eight hours after this exposure.
Appellant also submitted a December 15, 2017 surgery report from Dr. Alan Graham, a
Board-certified general surgeon, who indicated that he performed an esophagogastroduodenoscopy with biopsy of the esophagus on that date. Dr. Graham diagnosed hiatal
hernia (one centimeter) with distal esophagitis and mild gastritis.4 The findings of a December 21,
2017 computerized tomography (CT) scan of appellant’s chest contained an impression of right
upper lobe nodule (six millimeters) as well as ground glass opacity in the posterior left lower lobe,
with the notation, “This may be inflammatory, but neoplasm is not excluded.”
In an August 30, 2018 report, Dr. Gregory Osetinsky, a Board-certified otolaryngologist,
indicated that he had evaluated appellant for throat hoarseness and noted that a spirometry test
came back with normal results. He diagnosed chronic cough, deviated nasal septum, allergic
rhinitis, and laryngopharyngeal reflux, and he indicated that no pathology was present which
would cause limitations.
In an undated statement, received on October 10, 2018, the field operations division chief
for the employing establishment indicated that during a 13-week period in 2017 appellant’s
position required him to handle hazardous waste. He noted that it was known that some bags that
4

An unsigned December 15, 2017 report shows negative biopsy results for helicobacter pylori infection.

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appellant handled contained leaking munitions that set off an alarm, indicating the presence of
mustard gas contamination. The exposure occurred during a preparatory handling stage when
appellant was not wearing full protective gear. The employing establishment submitted a position
description of the toxic materials handler job held by appellant.
By decision dated October 18, 2018, OWCP accepted that appellant had established
employment factors in the form of exposure to mustard gas leaking from munitions. However, it
denied his claim finding that he had not met the requirements to establish that he sustained “an
injury and/or medical condition causally related to the accepted work event(s).”
On November 5, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing, held on March 11,
2019, appellant provided further details regarding his exposure to mustard gas in the workplace.
Appellant submitted November 2, 2017 reports from Dr. Fernando E. Ordaz, a Boardcertified internist, who indicated that appellant, who had long-standing psoriatic arthritis,
presented expressing a concern about potential exposure to mustard gas at work on
October 30, 2017.5 Appellant advised that he had long-standing itching and scratching at the upper
back, nape of the neck, top of the buttocks, and left anterior thigh, and he reported that he began
experiencing nausea and loss of appetite on November 1, 2017. Dr. Ordaz indicated that his
physical examination revealed finger deviation of the right hand consistent with arthritis, but that
there were no new rashes or vesicles. He advised that appellant had not exhibited symptoms
consistent with mustard gas exposure, such as eye/lacrimal symptoms, mouth/perioral lesions,
hand or forearm symptoms, new lesions on the feet or shins, new rashes upon head-to-toe skin
assessment, or respiratory distress. Dr. Ordaz noted that, from a clinical standpoint, appellant had
nausea and perhaps gastroenteritis. He indicated, “Overall clinical presentation may be more
consistent with a transient viral gastric illness than mustard gas exposure.”
In a November 8, 2017 addendum to his November 2, 2017 reports, Dr. Ordaz indicated
that he had reviewed appellant’s laboratory results and advised appellant that he could find no
clear evidence of mustard gas exposure. He explained that these results “all came back inconsistent
with mustard toxicity.”
By decision dated May 28, 2019, the hearing representative affirmed OWCP’s October 18,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
5

Dr. Ordaz noted that appellant reported that an exposure occurred when he opened and placed his hand in a bag
containing artillery shells, which leaked mustard gas, when he was either inside a work shed or in the open air outside
of the work shed.
6

Supra note 2.

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time limitation period of FECA, 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.7 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.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.9
Causal relationship is a medical question that requires rationalized medical evidence to
resolve the issue.10 A physician’s opinion on whether there is a causal relationship between the
diagnosed condition and the implicated employment factor(s) must be based on a complete factual
and medical background.11 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and appellant’s specific employment
factor(s).12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
Appellant submitted November 2, 2017 reports from Dr. Ordaz who indicated that, upon
physical examination, appellant had not exhibited symptoms consistent with mustard gas exposure.
Dr. Ordaz noted, from a clinical standpoint, that appellant had nausea and perhaps gastroenteritis
and indicated, “Overall clinical presentation may be more consistent with a transient viral gastric
illness than mustard gas exposure.” In a November 8, 2017 addendum to his November 2, 2017
reports, he noted that appellant’s laboratory results “all came back inconsistent with mustard
toxicity” and that he could find no clear evidence of a medical condition related to mustard gas
exposure.

7

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
8

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

9
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
10

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018).

12

Id.; Victor J. Woodhams, supra note 9.

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The Board finds that these reports are of no probative value with respect to appellant’s
occupational injury claim because they provide no indication that the established employment
factors, i.e., exposure to mustard gas leaking from munitions, contributed to the diagnosed
conditions. In fact, Dr. Ordaz advised that no evidence was found that appellant had a condition
related to mustard gas exposure. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on the
issue of causal relationship.13 Therefore, these reports are insufficient to establish appellant’s
claim.14
Appellant also submitted a December 15, 2017 surgery report for an esophagogastroduodenoscopy with biopsy of the esophagus, which contained diagnoses of hiatal hernia with distal
esophagitis and mild gastritis. A December 21, 2017 report of a CT scan of the chest contained
an impression of right upper lobe nodule and ground glass opacity in the posterior left lower lobe.
In an August 30, 2018 report, Dr. Osetinsky diagnosed chronic cough, deviated nasal septum,
allergic rhinitis, and laryngopharyngeal reflux. However, these reports do not contain an opinion
on the cause of the observed conditions and; therefore, they have no probative value regarding
appellant’s claim for employment-related medical conditions. As noted above, medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.15 Therefore, these reports are insufficient to
establish appellant’s claim.16
As the medical evidence of record does not contain a rationalized opinion establishing causal
relationship between appellant’s diagnosed conditions and the accepted factors of his federal
employment, the Board finds that appellant has not met his burden of proof to establish his claim.
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 his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

Id.

15

See supra note 13.

16

Id.

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ORDER
IT IS HEREBY ORDERED THAT the May 28, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 7, 2020
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

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
K.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-890
Issued: November 6, 2008

Oral Argument September 10, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 5, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated November 23, 2007, which denied her request
for reconsideration. Because more than one year has elapsed between the September 12, 2006
merit decision and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 18, 2005 appellant, then a 45-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that on May 16, 2005 at 2:00 p.m., she was struck in the back
by Richard Lozito, a coworker.1 She stopped work on May 17, 2005.
In a June 3, 2005 statement, appellant described verbal abuse by Mr. Lozito towards her
while he was teaching a class, culminating in his punching her in the back after participants
moved to the CBI lab. She alleged: “immediately after being punched in the back by Richard
Lozito, who vacated the premises too rapidly for me to speak to him about his actions, I spoke
with Jon Smith, Department Head of WCG, (Washington Consulting Group). I informed
Mr. Smith of Mr. Lozito’s misconduct and my injury sustained in the ‘CBI’ Lab. This incident
occurred near the end of my shift. In increasing pain, I drove home and have not been able to
drive since per doctor’s orders.”2
The employing establishment controverted the claim. In a May 17, 2005 statement, Mark
Palazzo, appellant’s federal manager, indicated that he contacted appellant at home to see why
she was not at work. He alleged that he spoke to an individual named Clay King, who advised
him that appellant’s “ongoing back problem was [exacerbated] by an occurrence yesterday in
which [Mr.] Lozito poked a finger in [appellant’s] lower back.” Mr. Palazzo alleged that this
was odd given he had seen appellant the previous morning walking slowly and “gingerly.” He
alleged that appellant never reported the incident at the time of the purported occurrence.
Mr. Palazzo noted that an investigation was conducted as to appellant’s allegations of an assault
by her coworker. Numerous statements were obtained from participants in the classroom and
laboratory activities. Mr. Lozito noted that the class ended at 1:40 p.m. and denied that he
addressed anyone in a “demeaning or abusive manner, nor did [he] physically accost anyone in
any way, shape or form.” Other classroom participants described Mr. Lozito as standing some
12 feet away from appellant while in the classroom and a businesslike atmosphere and vocal tone
as to the matters discussed. None of the witnesses supported that he made gestures or abusive
statements as alleged by appellant or that they observed him striking her after they moved to the
laboratory.
By decision dated July 7, 2005, the Office denied appellant’s claim on the grounds that
she did not establish an injury as alleged. It found the evidence did not establish the May 16,
2005 incident at the time, place and in the manner alleged. The Office noted that there were
witness statements that did not corroborate her allegations.
By letter dated July 21, 2005, appellant requested a hearing, which was held on
May 17, 2005. She alleged that she did not provide any witness statements, contending that
there were no witnesses to the assault. At the hearing, appellant testified that she never lied
about the incident. She described Mr. Lozito as a 360-pound man who was 6’ 4. Appellant
noted a prior spinal cord injury and stated that her back could not take a 360-pound man
punching her in the back. She alleged that Mr. Lozito had verbally abused her, punched her in
1

The record reflects that appellant had a preexisting spinal injury.

2

The record reflects that Mr. Smith is not a federal civilian manager.

2

the back and walked out. Thereafter, appellant went to Mr. Smith, who was her contract
supervisor, and told him of the assault on the date of the incident. She explained that the incident
occurred at the end of her shift and she notified Mr. Smith that Mr. Lozito had just punched her
in the back. Appellant also alleged that he had verbally abused her at the time. She alleged that
Mr. Smith asked her if he could do anything and she told him that she was going to try and make
it home. Appellant subsequently retired on disability.
By decision dated September 12, 2006, the Office hearing representative affirmed the
July 7, 2005 decision. She found that the evidence regarding the incident was inconsistent.
Appellant stated that she advised her “supervisor of the work incident immediately after the
incident.” However, the manager stated that an investigation was conducted into the allegations
and appellant “did not report the incident to anyone, including her immediate supervisor, at the
time of its occurrence or even on the day it occurred.” The hearing representative found that
appellant did not report the incident to her supervisor for two days.
The Office subsequently received a copy of appellant’s traumatic injury claim form and
the June 3, 2005 statement from her, which indicated that immediately after being punched in the
back, she spoke with her supervisor, Mr. Smith, and informed him of Mr. Lozito’s misconduct
and her injury.
In a letter dated August 31, 2007, appellant requested reconsideration. She contended
that there were several inconsistencies in the Office hearing representative’s September 12, 2006
decision. Appellant noted that the Office hearing representative erred when she found that
appellant did not report the incident to anyone, including her immediate supervisor, on the day it
occurred. She referred to her June 3, 2005 statement that she had immediately notified
Mr. Smith, her contract supervisor and the head of the WCG. Appellant noted that she had
subsequently learned that Mr. Smith had never been interviewed by the employing
establishment. The Office hearing representative had referred to Mr. Palazzo as her supervisor;
however, appellant advised that Mr. Palazzo spoke to a friend the day after the incident and was
advised that appellant did not return to work because Mr. Lozito had “poked a finger” into her
back and injured her. Appellant alleged that the decision was incorrect, as it suggested that the
employing establishment had no knowledge of her injury on that day. She also questioned the
sincerity of Mr. Lozito’s statement in which he indicated that he left the class at 1:40 p.m.
Appellant alleged that there was no shift that ended at 2:00 p.m., and that there were several
witnesses who indicated that they were in class later than 2:00 p.m.
By decision dated November 23, 2007, the Office denied appellant’s request for
reconsideration without further merit review on the grounds that it neither raised substantial legal
questions nor included new and relevant evidence. It determined that, because her letter neither
raised substantive legal questions nor included new and relevant evidence, it was insufficient to
warrant review of its prior decision.

3

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence which:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
In a July 7, 2005 decision, the Office denied appellant’s claim on the grounds that the
evidence was insufficient to establish that the May 16, 2005 incident occurred as alleged. On
September 12, 2006 an Office hearing representative affirmed the July 7, 2005 decision finding
that appellant did not establish that the alleged incident occurred at the time, place and in the
manner alleged. Appellant disagreed with the denial of her claim and requested reconsideration
on August 31, 2007.
On reconsideration appellant contended that there were several inconsistencies in the
decision of the Office hearing representative. She does not, however, contend that the Office
erroneously applied or interpreted a specific point of law nor does she advance a new legal
argument not previously considered. Consequently, appellant is not entitled to a review of the
merits of her claim based on the first and second requirements under section 10.606(b)(2).
Rather, she takes issue with the hearing representative’s findings of fact and questioned the
sincerity of the statement obtained from Mr. Lozito. Appellant contends that the Office hearing
representative confused the identity of Mr. Palazzo, the federal manager, with that of Mr. Smith,
the contact manager for WCG, and with whom she spoke following the May 16, 2005 incident.
She noted that she did not speak with Mr. Palazzo immediately after the incident but did speak to
Mr. Smith. However, appellant’s argument is not relevant to the basis on which her claim was
denied. As noted, the employing establishment conducted an investigation into the matter and
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608(b).

4

obtained statements from Mr. Lozito and from the other participants in the classroom and lab
activities. The various statements obtained did not support appellant’s allegations that she was
verbally abused or struck by Mr. Lozito as alleged. The fact that she may have spoken with
Mr. Smith immediately after the alleged incident, as noted in her June 3, 2005 statement, is not
relevant to the denial of her claim, which was premised on the information from those in
attendance at the class and lab. Although appellant questioned the sincerity of the statement
provided by Mr. Lozito, his denial of her specific allegations was generally supported by the
statements of the other classroom and lab participants. In order to obtain a further merit review
of the case, she must provide new and relevant evidence that has not been considered by the
Office. Although appellant questioned Mr. Lozito’s statement, she did not provide any
additional evidence to support her contention that his statement was untrue. Indeed, she had
previously questioned, without success, the veracity of his statement during the hearing. Without
any evidence, appellant’s contention is insufficient to warrant further merit review.
Appellant also submitted duplicate copies of a previously submitted statement and forms.
The submission of evidence which repeats or duplicates evidence already in the case record does
not constitute a basis for reopening a case for merit review.6 The Board finds that appellant’s
arguments on reconsideration do not warrant a merit review of her claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further merit
review of her claim.

6

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald, 50
ECAB 185 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 23, 2007 is affirmed.
Issued: November 6, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0424
Issued: February 26, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 30, 2021 appellant filed an appeal from a July 30, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0424.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the July 30, 2020 decision was January 26, 2021. As appellant
did not file an appeal with the Board until January 30, 2021, more than 180 days after the July 30,
2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0424 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0424 is dismissed.
Issued: February 26, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, Halsey, NE, Employer
__________________________________________

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

Docket No. 15-1809
Issued: January 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 1, 2015 appellant filed a timely appeal from a July 17, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on May 26, 2015.
FACTUAL HISTORY
On May 28, 2015 appellant, then a 21-year-old biological technician, filed an
occupational disease claim (Form CA-2) alleging that at approximately 9:30 a.m. on May 26,

1

5 U.S.C. § 8101 et seq.

2015 she was exposed to a pest repellent being sprayed in an adjacent field, field five, and while
she was weeding in field six with five coworkers. She did not stop work.
In letters dated June 8, 2015, OWCP informed appellant of the evidence needed to
support her claim and asked the employing establishment to describe her work duties and
exposure.
The five coworkers who were weeding in field six on May 26, 2015 provided statements.
Each indicated that they were told spraying would be done in the adjacent field and if they
smelled anything to leave. Each maintained that they did not smell anything and that the wind
was blowing away from them. Jason Coffman, a coworker, advised that on May 26, 2015 he
sprayed field five with Spotrete,2 beginning at approximately 9:45 a.m.
Richard Gilbert, nursery manager and appellant’s supervisor, provided a statement on
June 16, 2015. He advised that appellant was weeding in field six with five other nursery
employees at the time of the claimed exposure, which occurred for approximately 30 minutes
and only once. Mr. Gilbert maintained that all standard operating procedures were followed, and
noted that appellant did not report to the coworkers that she smelled anything and did not leave
the field. He did note that it was possible that she was exposed to the fungicide.
In a June 17, 2015 statement, appellant related that on May 26, 2015 as soon as she
smelled the spraying from the adjacent field, she instantly got a headache and started to feel
dizzy, and that, after lunch her eyes were itchy, that she felt nauseated, and the headache
continued. She indicated that she worked the entire day, and awoke with a headache the next
day, with sneezing, a scratchy throat, eye irritation, and occasional dizziness. When appellant
went to work, she reported her symptoms to her supervisor. She began working in the office that
day and did no outside work. Appellant related that on May 28, 2015 she felt fine until she
reported to work, when a headache began, that she was nauseated after lunch, and had continued
dizziness. She reported that on May 29, 2015 she again awakened with a headache, sneezing,
and a scratchy throat, and that she and her supervisor went to see the doctor that day. Appellant
maintained that all her symptoms were caused by exposure to Spotrete for approximately 30
minutes on May 26, 2015 and that she continued to have headaches, sneezing, and a scratchy
throat. She attached a diary of events and symptoms dated May 26 to June 1, 2015, when she
stated that she was much better with no symptoms.
In a May 29, 2015 report, Dr. Shawn S. Lawrence, a Board-certified family physician,
noted appellant’s report that she was exposed to a fungicide at work on May 26, 2015 when an
adjoining field was sprayed. She described appellant’s symptoms of immediate headache,
dizziness, and slight nausea after eating. Dr. Lawrence noted a history of migraine headaches
and significant allergies. Following physical examination, she diagnosed allergic rhinitis,
chemical exposure, and migraine headache. Dr. Lawrence reported that appellant looked “ok”
that day and opined that her symptoms were from untreated allergies and migraine headache.
She prescribed symptomatic treatment. On June 22, 2015 Katrina White, a physician assistant
and associate of Dr. Lawrence, advised that appellant could return to work on May 29, 2015.
2

Spotrete is a turf fungicide animal repellant.

2

By decision dated July 17, 2015, OWCP found that the claimed exposure was
established, but denied the claim because the medical evidence was insufficient to establish that
a medical condition was causally related to the work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact 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 period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations define a traumatic injury as a condition of the body caused by a
specific event or incident or series of events or incidents within a single workday or shift.4 To
determine whether an employee sustained a traumatic injury in the performance of duty, OWCP
must determine whether “fact of injury” is established. First, an employee has the burden of
demonstrating the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative, and substantial evidence. Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish a causal
relationship between the employment incident and the alleged disability and/or condition for
which compensation is claimed. An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.5
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”6 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 diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

Supra note 3.

6

20 C.F.R. § 10.5(ee).

7

Roy L. Humphrey, 57 ECAB 238 (2005).

3

Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 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 employee.9 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board initially notes that, although appellant filed an occupational disease claim, this
case is for a traumatic injury. As noted above, OWCP regulations define a traumatic injury as a
condition of the body caused by a specific event or incident or series of events or incidents
within a single workday or shift.11 The exposure in the instant case occurred during a 30-minute
period on one day, May 26, 2015. It is thus clearly a traumatic injury claim and the claim will be
evaluated as such.
OWCP accepted that appellant was exposed to a fungicide on May 26, 2015 while in the
performance of duty. It denied her claim, however, because it found that she had not met her
burden of proof to establish a causal relationship between the employment exposure and a
medical condition. The Board finds that the medical evidence of record is insufficient to
establish that appellant sustained an injury causally related to the May 26, 2015 employment
exposure.
The only medical report of record from a physician is the May 29, 2015 report in which
Dr. Lawrence described the work exposure, appellant’s symptoms, and physical examination
findings. Dr. Lawrence advised that appellant “seemed okay” that day and opined that her
symptoms were from untreated allergies and migraine headache. Her associate, Ms. White,
advised that appellant could return to work that day.12
Dr. Lawrence’s report does not support that the employment exposure on May 26, 2015
caused an injury. Thus, the medical evidence does not establish that appellant’s condition was
causally related to the employment exposure.

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Supra note 4.

12

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a “physician” as defined in section 8102(2) of FECA. 5 U.S.C. § 8102(2); see
R.M., 59 ECAB 690 (2008). Reports from a physician assistant are not considered medical evidence as a physician
assistant is not considered a physician under FECA. Ricky S. Storms, 52 ECAB 349 (2001).

4

To support a claim for compensation, the physician should offer a medically sound
explanation of how the claimed work event caused or aggravated the claimed condition.13 No
physician did so in this case. Appellant, therefore, did not meet her burden of proof to establish
an injury in the performance of duty on May 26, 2015.14
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 did not meet her burden of proof to establish an injury in
the performance of duty on May 26, 2015.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

D.D., Docket No. 13-1517 (issued April 14, 2014).

14

W.L., Docket No. 13-1727 (issued February 4, 2014).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0153
Issued: August 25, 2016

Case Submitted on the Record

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

JURISDICTION
On November 3, 2015 appellant, through counsel, filed a timely appeal from a
September 1, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish that his claim should
be expanded to include cervical and lumbosacral radiculopathy and bilateral carpal tunnel
syndrome.
FACTUAL HISTORY
This case has previously before the Board.3 By decision dated December 10, 2014, the
Board affirmed OWCP’s decision denying appellant’s claim for disability compensation for the
period May 31 to July 22, 2013. The facts and circumstances of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on February 1, 2013 appellant, then a 53-year-old mail handler,
sustained a traumatic injury when he fell from a platform at work and landed on the left side of
his face and body. Appellant stopped work on February 1, 2013. His claim was accepted for left
contusion of the face and hip.
In an April 15, 2013 magnetic resonance imaging (MRI) scan of appellant’s cervical
spine, Dr. Jeffrey Lang, a Board-certified diagnostic radiologist who specializes in
neuroradiology, observed central herniated disc at C4-5 with reversal of the cervical lordosis and
old intravertebral herniated disc/grade 1 compression of T1 and T2.
On April 15, 2013 appellant underwent an x-ray of the lumbar spine ordered by
Dr. Michael Green, a Board-certified internist, who reported slight dextroscoliosis and mild facet
joint narrowing on the right at the L4-5 level and at the L3-4 level on the left.
Appellant was treated by Dr. Mark A. Filippone, Board-certified in physical medicine
and rehabilitation. In a May 21, 2013 report, Dr. Filippone noted that he had treated appellant
since February 18, 2013 after a February 1, 2013 work injury. He related appellant’s complaints
of neck pain and of pain, numbness, and tingling in his fingers and hands. Upon examination,
Dr. Filippone observed pain, guarding, and spasm in the cervical and lumbar paraspinals
bilaterally. Tinel’s and Phalen’s signs were positive bilaterally. Dr. Filippone provided
electromyography (EMG) and nerve conduction studies test findings and indicated that they
showed evidence of right C5-6 cervical radiculopathy and right L4-5 and S1 lumbosacral
radiculopathy. He opined that the electrodiagnostic abnormalities were directly and solely the
result of the injuries appellant sustained at work for the employing establishment. In an
attending physician’s report (Form CA-20), Dr. Filippone noted a date of injury of
February 1, 2013. He provided diagnoses of cervical and lumbar radiculopathy and carpal tunnel
syndrome. Dr. Filippone authorized appellant to return to limited duty on May 22, 2013.
On May 25, 2013 appellant returned to work and presented his most recent work
restrictions. He worked for two days before the employing establishment informed him that they

3

Docket No. 14-1614 (issued December 10, 2014).

2

could no longer accommodate his work restrictions because they were not related to his accepted
conditions.
In a letter dated June 14, 2013, appellant’s counsel requested that OWCP expand
appellant’s claim to include cervical and lumbar radiculopathies and bilateral carpal tunnel
syndrome. He asserted that Dr. Filippone’s May 21, 2013 report demonstrated that appellant
sustained these conditions as a result of his February 1, 2013 employment injury.
Dr. Filippone continued to treat appellant and indicated in reports dated June 5 and 20,
2013 that appellant’s neck and low back pain were resolving with physical therapy and
conservative treatment, but remained essentially unchanged. He reviewed appellant’s medical
history and conducted an examination. Dr. Filippone reported that appellant had guarding and
spasm in the cervical and lumbar paraspinals and preserved peripheral pulses. He indicated that
central and neurologic examinations were unchanged.
Homans’ sign was negative.
Dr. Filippone recommended that appellant continue to work limited duty.
In a July 10, 2013 prescription and duty status note, Dr. Filippone authorized appellant to
resume full-time regular duty beginning July 22, 2013. On July 22, 2013 appellant returned to
full duty.
OWCP referred appellant’s claim, along with the medical record and statement of
accepted facts (SOAF), to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a second
opinion examination to determine whether he continued to suffer residuals of his February 1,
2013 work injury and whether was able to return to work. In a July 26, 2013 report, he described
the February 1, 2013 employment injury and reviewed the medical treatment he received.
Dr. Lakin noted that appellant no longer experienced pain in his neck and back, but complained
of occasional discomfort in the lower back region in the area of the hip. He indicated that
appellant returned to full duty two days ago and was able to do all activities and walk without
difficulty. Dr. Lakin reported that he reviewed appellant’s diagnostic records and agreed with
the radiologist that appellant had a herniated disc at C4-5 and vertebral herniated disc and grade
1 compression of T1 and T2. Upon examination of appellant’s cervical spine, he observed no
tenderness and active range of motion. Dr. Lakin reported that thoracic and lumbosacral
examinations also revealed no tenderness or spasms. Straight leg raise testing was negative in
the sitting and supine positions. Motor examination was also 5/5 and sensation was intact.
Dr. Lakin also noted that appellant was nontender at the bilateral sacroiliac joints and sciatic
notches. Examination of the left hip revealed nontenderness and symmetric range of motion.
Dr. Lakin opined that appellant’s accepted conditions of contusion of the face and left hip
had resolved and he had no disabling residuals. He explained that appellant had no concurrent
medical condition preventing him from returning to gainful employment. Dr. Lakin concluded
that appellant was capable of returning to his date-of-injury job as a mail handler and was not
totally disabled from any gainful employment due to the accepted condition.
Appellant continued to receive medical treatment from Dr. Filippone. In reports dated
August 15 to December 12, 2013, Dr. Filippone reexamined appellant and noted that his medical
history and review of systems remained unchanged. Upon examination, he observed further
decreased prominence of the dominant right thenar eminence. Phalen’s and Tinel’s signs were

3

positive on the right. Dr. Filippone reported that, even though appellant was still symptomatic,
he could work full-time regular duty.
In a September 30, 2013 narrative report, Dr. Filippone accurately described the
February 1, 2013 employment injury and reviewed appellant’s medical treatment. He recounted
that May 21, 2013 EMG and nerve conduction studies of bilateral upper and lower extremities
showed evidence of a right C5-6 cervical radiculopathy, right C4-5 and S1 lumbosacral
radiculopathy, and carpal tunnel syndrome. Upon examination, Dr. Filippone observed pain,
guarding, and spasm in the cervical and lumbar paraspinal muscles, especially in the cervical
paraspinals. He indicated that central and peripheral neurologic examinations were unchanged.
Dr. Filippone diagnosed herniated disc at C4-5, old intravertebral herniated disc grade 1
compression of T1 and T2, mild facet joint narrowing on the right at L4-5 and on the left at L3-4,
internal derangement of both knees, contusion of the pelvis and left hip, C5-6 cervical
radiculopathy, L4-5 and S1 lumbosacral radiculopathy, and bilateral carpal tunnel syndrome. He
opined that “all of the above abnormalities [were] directly and solely the result of the injury
sustained at work on February 1, 2013.”
Appellant’s counsel again requested in letters dated October 18 and 22, 2013 that
appellant’s accepted conditions be expanded to include C4-5 disc herniation, low back condition,
internal derangement and radiculopathies as a result of his work injury.
Dr. Filippone continued to treat appellant and indicated in reports dated March 11 to
December 1, 2014 that his medical history and review of systems remained unchanged. Upon
examination, he observed pain, guarding, and spasm in the cervical and lumbar paraspinals, as
well as the sciatic notches. Tinel’s and Phalen’s signs were positive. Dr. Filippone also reported
tenderness on palpation over the biceps tendon in the right shoulder and tenderness with pain
upon forward flexion of the right shoulder.
On January 6, 2015 appellant’s counsel requested via a letter that OWCP issue a decision
regarding whether appellant’s claim be expanded to include cervical and lumbar radiculopathy
and carpal tunnel syndrome.
In a February 3 and March 4, 2015 narrative reports, Dr. Filippone noted appellant’s
medical history and indicated that the review of systems were unchanged. He conducted an
examination and observed that appellant could forward flex at the waist fingertips to within four
inches of the floor with increasing low back pain, radiating to the lower extremities, extend the
low back to 20 degrees with increasing low back pain, and laterally flex to 30 degrees with
increasing lower back pain. Fabere sign was negative on the left and right. Homan’s sign was
also negative. Dr. Filippone reported no carotid or cranial bruits. He indicated that appellant
continued to work full-time, regular duty.
In a decision dated April 10, 2015, OWCP denied appellant’s request to expand his claim
to include cervical disc herniation and radiculopathy. It found that the medical evidence was
insufficient to establish that appellant sustained additional diagnoses related to his February 1,
2013 work injury.

4

On April 16, 2015 appellant’s counsel requested a hearing before an OWCP hearing
representative. On May 21, 2015 a video hearing was held. Appellant was represented by his
counsel who alleged that appellant provided prima facie evidence that he sustained additional
medical conditions related to the February 1, 2013 employment injury and asserted that OWCP
did not properly develop the medical evidence. Counsel stated that Dr. Filippone’s July 10, 2013
report contained enough medical support to support that appellant’s claim should be expanded.
He noted that Dr. Filippone adequately described the mechanism of injury and related appellant’s
cervical and lumbar conditions to appellant’s February 1, 2013 employment injury. Counsel
further reported that OWCP should not have relied on Dr. Lakin’s second opinion report because
it was deficient. He noted that while Dr. Lakin agreed with appellant’s cervical MRI scan that
appellant had a herniated disc at C4-5, Dr. Lakin did not provide an opinion on the cause of
appellant’s cervical and lumbar conditions. Counsel alleged that there was sufficient medical
evidence to support expansion of appellant’s claim to include C4-5 disc herniation, internal
derangement, and radiculopathy. The hearing representative requested additional information
from appellant, specifically whether he had any history of injury prior to the work injury and
reports of the medical treatment for his neck.
In a July 5, 2015 statement, appellant explained that he was working full duty but
continued to experience lower back pain. He was treated by Dr. Filippone and also underwent
physical therapy. Appellant related that if his request to expand his claim was approved
Dr. Filippone would like more thorough examinations and tests. He stated that Dr. Lakin did not
do anything different from Dr. Filippone’s examinations.
By decision dated September 1, 2015, an OWCP hearing representative affirmed the
April 10, 2015 decision denying the expansion of appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6 Whether an employee sustained an injury in the performance
of duty requires the submission of rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.8 The weight of the medical evidence is determined by its reliability,
4

Supra note 2.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

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
OWCP accepted that on February 1, 2013 appellant sustained contusions to the left side
of his face and hip when he fell off a platform at work. He stopped work and returned to full
duty on July 22, 2013. In various letters appellant, through counsel, requested that his claim be
expanded to include cervical disc herniation, cervical and lumbar radiculopathies, and carpal
tunnel syndrome. OWCP denied expansion of his claim, finding insufficient medical evidence to
establish that he sustained additional conditions causally related to the February 1, 2013
employment injury.
Appellant received medical treatment from Dr. Filippone in reports dated May 21, 2013
to March 4, 2015. Dr. Filippone provided an accurate history of the February 1, 2013
employment injury and noted that appellant continued to complain of neck pain and of
numbness, pain, and tingling in his hands and fingers. He provided findings on examination and
EMG and nerve conduction study test results dated May 21, 2013. Dr. Filippone noted that the
diagnostic reports showed evidence of right C5-6 cervical radiculopathy and right L4-5 and S1
lumbosacral radiculopathy. In a September 30, 2013 narrative report, he opined that the
electrodiagnostic abnormalities were directly and solely the result of the injuries appellant
sustained at work on February 1, 2013. Dr. Filippone reported that, although appellant remained
symptomatic, he was capable of working full duty.
Dr. Filippone diagnosed cervical and lumbar radiculopathy and carpal tunnel syndrome,
and opined that these conditions resulted from appellant’s work injury. Although he provided an
opinion on causal relationship, the Board finds that his opinion is of limited probative value
because he did not provide adequate medical rationale to support his opinion.10 Dr. Filippone
did not explain the mechanism of injury of how appellant’s fall at work on February 1, 2013
could have caused or contributed to an additional cervical disc herniation, cervical and lumbar
radiculopathy, and carpal tunnel syndrome. 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.11 Because Dr. Filippone failed to
provide any medical rationale explaining how appellant sustained cervical and lumbar conditions
or carpal tunnel syndrome as a result of his February 1, 2013 work injury, the Board finds that
Dr. Filippone’s reports are insufficient to establish that appellant sustained additional conditions
as a result of his employment injury.
The additional diagnostic reports dated April 15, 2013 by Drs. Green and Lang are also
insufficient to establish appellant’s expansion claim.
Although the reports contained
examination findings diagnoses of cervical and lumbar conditions, none of the physicians
9

James Mack, 43 ECAB 321 (1991).

10

See G.M., Docket No. 15-1645 (issued December 7, 2015).

11

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

6

provided any opinion on the cause of appellant’s conditions. The Board has found that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.12
On appeal, appellant’s counsel alleged that appellant provided prima facie evidence to
show that his claim should be expanded to include cervical and lumbar radiculopathy and
bilateral carpal tunnel syndrome. He asserted that Dr. Filippone’s reports established that
appellant sustained injuries to his neck, back, and bilateral upper extremities, along with his left
hip and side, when he fell from a loading platform at work on February 1, 2013. As noted above,
however, Dr. Filippone’s reports are insufficient to establish that appellant’s claim should be
expanded to include cervical and lumbar conditions, in addition to his accepted left hip and face
contusion. He failed to provide any medical rationale explaining how appellant’s cervical and
lumbar conditions were causally related to the accepted February 1, 2013 employment injury.
Counsel further argued that OWCP improperly found that the weight of medical evidence
rested with Dr. Lakin’s July 26, 2013 second opinion report. The Board notes, however, that
OWCP did not accord the weight of medical evidence to Dr. Lakin. It simply noted that
Dr. Lakin examined appellant and opined that he did not have any concurrent medical conditions
which prevented him from returning to work. OWCP denied appellant’s claim because he did
not submit sufficient medical evidence to establish that he sustained additional medical
conditions as a result of his February 1, 2013 employment injury.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.13 Appellant has failed to
provide such rationalized medical opinion demonstrating that he sustained cervical and lumbar
conditions on February 1, 2013. Accordingly, the Board finds that he has failed to meet his
burden of proof to establish his claim.
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 did not meet his burden of proof to establish that his claim
should be expanded to include cervical and lumbosacral radiculopathy, and bilateral carpal
tunnel syndrome.

12

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

13

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the September 1, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0378
Issued: November 16, 2016

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 December 28, 2015 appellant filed a timely appeal from July 23 and October 29, 2015
merit decisions and a December 18, 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 501.3,2 the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether OWCP properly computed appellant’s pay rate for
compensation purposes; and (2) whether OWCP properly denied appellant’s request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board however cannot
consider this evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it
issued its final decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

On appeal appellant asserts that, based on a settlement agreement, he is entitled to
compensation based on a recurrent pay rate that was in effect when he officially retired in 2007,
rather than the pay rate of the date disability began in 1990.
FACTUAL HISTORY
On December 7, 1987 appellant, then a 37-year-old special agent, filed an occupational
disease claim (Form CA-2) alleging that racial discrimination, retaliation, and harassment at
work caused post-traumatic stress disorder (PTSD). On May 8, 1990 OWCP accepted PTSD,
and he was placed on the periodic compensation rolls, beginning April 28, 1990. Appellant had
stopped work on January 29, 1990, returned on March 24, 1990, again stopped on May 16, 1990,
and did not return. His pay rate for compensation purposes was based on the date disability
began, or January 29, 1990, at a weekly rate of $888.63. The date disability began, or
January 29, 1990, was thereafter used in computing appellant’s pay rate for compensation
purposes.
A settlement agreement was reached between appellant and the employing establishment
regarding Equal Employment Opportunity (EEO) claims. In the agreement, signed by appellant
on August 8, 1990, the employing establishment agreed to supplement his FECA compensation
by paying him the difference between his FECA compensation and his pay, based on the average
rate of pay received by those special agents who entered duty in 1981 and continued to be
employed full time by the employing establishment, minus standard payroll deductions. This
was identified as “front pay.” Appellant was also to be retroactively promoted, and the
employing establishment was to pay his temporary living expenses, relocation expenses, and
counsel fees.
In May 1991, appellant’s compensation was adjusted for the periods April 16, 1990
through April 6, 1991 to reflect that he received a promotion. His new pay rate for compensation
purposes was based on a pay rate of $977.36 and continued to be based on the date disability
began, January 29, 1990.
On August 18, 1995 appellant asked OWCP to adjust his disability payments to include
the “front pay” paid by the employing establishment under the August 1990 settlement
agreement. OWCP responded, explaining that under FECA there was no provision to authorize
front pay. Appellant continued to receive FECA compensation based on the date disability
began, January 29, 1990.
In correspondence dated January 29, 1996, a Deputy Regional Solicitor with the
Department of Labor (DOL) advised appellant that, upon careful review, the settlement
agreement did not require that DOL/OWCP adjust his FECA compensation, rather the
employing establishment was solely responsible for assuring payment of any front pay owed,
pursuant to the agreement.
Appellant retired from the employing establishment, effective May 31, 2007.3 Beginning
on August 6, 2007 he asked OWCP to include front pay in his FECA compensation, effective
3

On May 31, 2007 appellant reached mandatory retirement age.

2

May 31, 2007. In a November 21, 2007 response, OWCP informed appellant that, as noted in
the August 25, 1995 and January 29, 1996 correspondence, it was not responsible for any front
pay. It informed him that his FECA compensation would continue. Appellant continued to
pursue a front pay supplement to his FECA compensation. The employing establishment
indicated that his salary when he reached mandatory retirement age was $147,162.44.
By decision dated February 4, 2008, OWCP determined that appellant’s pay rate should
not be modified effective May 31, 2007 to include a front pay supplement. It informed him
FECA defined pay as the monthly pay at the time of injury, at the time disability began, or at the
time compensable disability recurred, whichever was greater. OWCP explained that, in his case,
January 29, 1990, the date disability began, was the used to calculate his FECA compensation,
including the retroactive promotion. It concluded that there was no language in the August 8,
1990 settlement agreement which required or suggested that OWCP should include any amount
of front pay he received from the employing establishment under the agreement in his pay rate
for compensation purposes.4
Appellant timely requested a hearing before an OWCP hearing representative. He
submitted evidence previously of record and statements asserting that his FECA compensation
should include the front pay supplement and thus be based on his salary when he retired on
May 31, 2007. At the hearing, held on May 30, 2008, counsel and appellant asserted that under
the terms of the 1990 settlement, appellant’s FECA compensation should be based on his salary
when he retired, $147,162.44.5 The hearing representative explained how FECA compensation
is calculated and indicated that OWCP should send appellant an election form.
In a decision dated August 11, 2008, an OWCP hearing representative found that
appellant was not entitled to an increase in FECA compensation based on front pay, and that the
pay rate in effect on January 29, 1990, the date disability began, was the correct pay rate.
On August 28, 2008 appellant requested reconsideration. He submitted evidence
previously of record and continued to assert that his FECA compensation should be based on his
pay on the date of retirement.
In a merit decision dated June 22, 2009, OWCP denied modification of its prior
decisions. It found that appellant’s pay rate for compensation purposes was correct.
Appellant appealed to the Board on September 15, 2009. On January 13, 2010 he elected
Office of Personnel Management (OPM) retirement, effective June 1, 2007. Appellant attached
a copy of an unsigned, undated settlement agreement between the employing establishment,

4

On February 27, 2008 appellant had a second-opinion evaluation with Dr. Anjali A. Pathak, a Board-certified
psychiatrist. Following testing and examination, Dr. Pathak diagnosed PTSD, atypical depression, and advised that
appellant continued to be totally disabled due to the employment injury.
5

At the hearing appellant was represented by counsel Michael Rubin.

3

OPM, and himself.6 On January 14, 2010 he requested that his appeal to the Board be dismissed.
By order dated February 26, 2010, the Board dismissed the appeal.7
On March 9, 2011 John Moreland, Ph.D., advised that he had been seeing appellant since
2006 for psychological treatment of his employment-related PTSD. He noted that appellant
administratively returned to duty on May 30, 2006 and reached mandatory retirement age on
May 31, 2007 and had been on OPM retirement since that date.
In a September 1, 2011 report, Dr. Samuel M. Albert, a Board-certified psychiatrist,
diagnosed PTSD and advised that appellant continued to be totally disabled. He noted that
appellant provided a history that he had returned to work with the employing establishment on
May 30, 2006 and retired on May 31, 2007. Dr. Albert recommended that appellant change from
OPM retirement to FECA compensation.
In February 2012, appellant requested an Election of Benefits form from OWCP. In a
May 1, 2012 letter, OWCP informed him that his FECA compensation each four weeks would be
$4,235.23. It forwarded appellant an Election of Benefits form. Appellant elected to return to
FECA compensation, effective April 8, 2012. He asserted that he was entitled to compensation
based on his salary on the date of retirement, May 31, 2007. On September 25, 2013 OPM
advised OWCP that appellant’s OPM retirement benefit would be stopped, effective
September 30, 2013. Appellant continued to express his belief that he was entitled to front pay,
and his FECA compensation should be based on his salary when he retired on May 31, 2007.
His FECA compensation was restored beginning October 1, 2013, with a retroactive payment of
$10,541.83. Appellant was placed on the periodic compensation rolls, effective February 9,
2014, at a pay rate based on the date disability began, January 29, 1990.
Appellant continued to assert that his FECA compensation should be based on his pay on
the date of retirement. The General Counsel for the Federal Law Enforcement Officers
Association, supported this contention in letters dated March 11 and August 13, 2014.
By letter dated September 12, 2014, OWCP explained how appellant’s FECA
compensation had been was calculated, stating that his pay rate for compensation purposes
remained in effect for the life of his claim. It informed him that, if indeed, he had returned to
work and worked continuously until he retired, an overpayment of compensation would be
created. OWCP concluded that, if appellant’s OPM retirement benefits were more beneficial, he
6

The settlement agreement was in regard to appellant’s employing establishment retirement benefits, including
service credit, calculation and implementation of retirement benefits, and included language that appellant was to
secure an election form from OWCP for his election to switch from FECA disability compensation to OPM
retirement benefits. Under the provision entitled “Service Credit,” the settlement agreement provided that he “will
be deemed as having returned to duty with the FBI, effective May 30, 2006, and as having been separated for
retirement … effective close of business on May 31, 2007.” It also authorized a payment of $380,000.00 to
appellant by the employing establishment. The agreement did not preclude appellant from an administrative appeal
against OWCP with the Board. His retroactive OPM retirement, effective June 1, 2007, was approved. OPM
reimbursed OWCP the amount appellant had received in FECA compensation from June 1, 2007 to
January 16, 2010.
7

Docket No. 09-2272 (issued February 26, 2010).

4

should request an election of benefits from OWCP, and elect to return to OPM retirement.
Appellant continued to assert that his FECA compensation should be based on his salary at the
time he retired on May 31, 2007.
On January 9, 2015 OWCP advised appellant that, if he disagreed with the most recent
OWCP decision dated June 22, 2009, he should exercise his appeal rights. On January 22, 2015
it again explained how his pay rate for FECA compensation was determined and included
explanatory FECA Procedure Manual provisions.
On February 23, 2015 the employing establishment informed OWCP that appellant did
not actually return to work. Appellant continued to assert that appellant was entitled to a 2007
recurrent pay rate. On March 11, 2015 OWCP again explained how his FECA compensation
was calculated. Appellant continued to dispute this finding. By letter dated April 10, 2015,
OWCP advised that, since he had never actually returned to work, he was not entitled to a 2007
recurrent pay rate. It continued that the settlement agreement was with the employing
establishment, noting that DOL was not a party to it.
On April 21, 2015 appellant asserted that a 2010 settlement agreement on restoration
rights provided that he had returned to work on May 20, 2006, and therefore would have been
entitled to the recurrent pay rate when he retired, on May 31, 2007. He continued to assert this
position.
In a merit decision dated July 23, 2015, OWCP found that appellant was not entitled to
compensation based on a recurrent pay rate. It noted that the 2010 settlement agreement outlined
how his retirement benefits would be calculated and implemented. OWCP explained the
definition of regular employment and concluded that, because appellant did not physically return
to work as an active special agent on May 30, 2006 when he was receiving FECA compensation,
he did not perform gainful employment. It further noted that appellant submitted OWCP Forms
CA-1032 on June 14, 2006, May 7, 2007, and May 14, 2008, in which he attested that he had not
worked in the prior 15 months. OWCP concluded that the May 30, 2006 return to work in was
an administrative determination for purposes of reaching a settlement regarding his retirement
package, noting that the employing establishment had informed OWCP that he never actually
returned to work. On July 29, 2015 it informed appellant that he could again request an election
of benefits between OPM and OWCP.
On July 31, 2015 appellant requested reconsideration. He argued that the 2010
settlement agreement established that, as he returned to work on May 30, 2006, he was entitled
to a recurrent pay rate for FECA compensation purposes. Appellant asserted that OWCP was
aware that he had not physically returned to work and approved a recurrent pay rate.
In an October 29, 2015 merit decision, OWCP denied modification of its prior decisions.
The decision again explained that because appellant did not physically return to work on May 30,
2006, he was not entitled to a recurrent pay rate. OWCP made clear that the 2010 agreement
granting him a return to work on May 30, 2006 was an administrative finding regarding his
retirement benefits, and this did not impact FECA pay rate for compensation purposes.

5

Appellant again requested reconsideration on November 9, 2015. He reiterated his belief
that he was entitled to a recurrent pay rate and submitted evidence previously of record. In a
November 25, 2015 report, Dr. Albert discussed a claimed exacerbation in 2010 due to new
employing establishment reprisal that was resolved in approximately 2013 by an EEO claim
decision in appellant’s favor. He reported a history that OWCP found that appellant was not
disabled from work after May 30, 2006 until April 8, 2012.
On December 18, 2015 OWCP denied appellant’s reconsideration request. It found that
the evidence submitted was cumulative and insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
“Disability” means the incapacity, because of an employment injury, to earn the wages
the employee was receiving at the time of injury. It may be partial or total.8
Monetary compensation for total or partial disability due to an employment injury is paid
as a percentage of monthly pay.9 Section 8101(4) of FECA provides that “monthly pay” means the
monthly pay at the time of injury or the monthly pay at the time disability begins or the monthly
pay at the time compensable disability recurs if the recurrence begins more than six months after
the injured employee resumes regular full-time employment with the United States, whichever is
greater.10
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly computed appellant’s pay rate for compensation
purposes. The record supports that he stopped work on January 29, 1990. Although he briefly
returned on March 24, 1990 appellant stopped work again on May 16, 1990 and did not return.
As he did not resume “regular full-time employment with the United States” for the requisite sixmonth period, OWCP properly determined his pay rate for compensation purposes was based on
his pay on January 29, 1990.12
Appellant has asserted that his FECA compensation should be based on a 1990 settlement
agreement regarding his EEO complaints. In that agreement, which was between appellant and
8

20 C.F.R. § 10.5(f)

9

5 U.S.C. §§ 8105, 8106.

10

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

11

20 C.F.R. § 10.5(x).

12

Supra note 10.

6

the employing establishment, the employing establishment agreed to supplement appellant’s
FECA compensation by paying him the difference between his FECA compensation and his pay,
based on the average rate of pay received by those special agents who entered duty in 1981 and
continued to be employed full time by the employing establishment, minus standard payroll
deductions. This was identified as “front pay.” Appellant was also to be retroactively promoted.
In May 1991, his compensation was adjusted to reflect that he received a promotion. Appellant’s
new pay rate for compensation purposes was based on a weekly pay rate of $977.36, and
continued to be based on the date disability began, January 29, 1990.
As OWCP has explained in previous correspondence and decisions, there is no language
in the 1990 settlement agreement which required or suggested that OWCP should include any
“front pay” paid by the employing establishment in computing appellant’ FECA compensation.
As to appellant’s assertion on appeal that, based on a 2010 settlement agreement, he is
entitled to compensation based on a recurrent pay rate that was in effect when he officially
retired in 2007, he is referring to an unsigned, undated settlement agreement which indicates that
it is between him and OPM. While its terms are in regard to retirement benefits,13 this in no way
impacts his FECA compensation.
Under the 1990 EEO settlement agreement, appellant was allowed to remain on the
employing establishment rolls until he retired effective May 31, 2007. As noted above, he did
not resume “regular full-time employment with the United States” for the requisite six-month
period to entitle him to a recurrent pay rate.14 On February 23, 2015 the employing
establishment informed OWCP that appellant did not actually return to work.
Appellant suffered no qualifying recurrence.15 For a recurrence of disability to occur, the
injured worker must have physically returned to work.16 As there is no evidence that he
physically resumed regular full-time work with the employing establishment, as required under
section 8104(4) of FECA, OWCP properly calculated his pay rate for compensation purposes
based on the date of injury, January 29, 1990.17
As to this merit issue, 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.

13

Supra note 6.

14

Supra note 10; see also Samuel C. Miller, 55 ECAB 119 (2003).

15

See W.B., Docket No. 09-1440 (issued April 12, 2010).

16

See T.K., Docket No. 14-2047 (issued June 2, 2015).

17

See T.K., Docket No. 13-1833 (issued March 10, 2014).

7

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.18 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meet at least one of the standards enumerated in section
10.606(b)(3).19 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.20 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.21
ANALYSIS -- ISSUE 2
With his November 19, 2015 reconsideration request, appellant merely reiterated his
belief that he was entitled to a recurrent pay rate. He therefore 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. Consequently, appellant was not entitled to a review of the
merits of the claim based on the first and second above-noted requirements under section
10.606(b).22
As to the third above-noted requirement under section 10.606(b)(3), appellant submitted
evidence previously of record, and a report from his attending psychiatrist. Evidence or
argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.23 Likewise, the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case.24
A medical opinion is irrelevant to the merit issue in this case, whether OWCP properly computed
appellant’s pay rate for compensation purposes.
As appellant did not show that OWCP erroneously applied a specific point of law,
advance a relevant legal argument not previously considered, or submit relevant and pertinent

18

5 U.S.C. § 8128(a).

19

20 C.F.R. § 10.608(a).

20

Id. at § 10.608(b)(3).

21

Id. at § 10.608(b).

22

Id. at § 10.606(b).

23

J.P., 58 ECAB 289 (2007).

24

L.H., 59 ECAB 253 (2007).

8

new evidence not previously considered by OWCP, OWCP properly denied his reconsideration
request.
CONCLUSION
The Board finds that OWCP properly computed appellant’s pay rate for compensation
purposes and properly denied his request for reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 18, October 29, and July 23, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 16, 2016
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

9