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

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

Docket No. 08-2323
Issued: June 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 25, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decisions dated December 21, 2007 and August 6, 2008, denying her
requests for reconsideration without a merit review. Because more than one year has elapsed
from the last merit decision dated January 30, 2006 to 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 denied appellant’s request for reconsideration
without further merit review under section 8128(a).
FACTUAL HISTORY
On December 22, 2005 appellant, then a 58-year-old rural carrier, filed an occupational
disease claim alleging that she sustained “female problems from lifting.” She first realized that
her condition was caused or aggravated by her employment in June 2004. Appellant stopped

work on November 28, 2005 and did not return. The employing establishment controverted the
claim.
In a December 21, 2005 letter to the employing establishing, appellant asserted that she
had surgery on November 28, 2005 as a direct result of repetitive lifting. In an accompanying
November 21, 2005 disability note, Dr. John Pfeffer, a Board-certified obstetrician and
gynecologist, indicated that appellant would be unable to work for eight weeks beginning
November 28, 2005. On December 9, 2005 he noted that her unspecified condition “could have
been caused by repetitive heavy lifting.”
After the Office advised appellant of the evidence needed to establish her claim, she
submitted a statement dated January 9, 2006 in which she explained that her job duties consisted
of repetitive lifting up to 70 pounds a day of flats or trays of mail. Appellant noted that she
underwent a hysterectomy in 2000 because of pelvic organ prolapse. In a January 3, 2006 report,
Dr. Pfeffer noted that appellant’s medical history included a hysterectomy in June 1999, which
subsequently developed into vaginal prolapse. He advised that appellant became symptomatic
with pelvic pressure and lower back discomfort.
Appellant underwent surgery in
November 2005 for abdominal vaginal sacropexy and Moschowitz procedure. Dr. Pfeffer
advised that any repetitive maneuver that involved the Valsalva maneuver with increase in
abdominal pressure may contribute to pelvic relaxation and vaginal prolapse. He recommended
no physical activities requiring Valsalva maneuver or heavy lifting.
By decision dated January 30, 2006, the Office denied appellant’s claim for
compensation finding that the medical evidence was insufficient to establish that the claimed
medical condition was related to the established work-related activities.
Appellant requested reconsideration on February 15, 2006. In a statement dated
February 16, 2006, she listed the evidence she believed supported her case. Appellant also
submitted reports from Dr. Pfeffer, including a November 28, 2005 surgical report noting that
she underwent procedures for abdominal vaginal sacropexy, Moschowitz procedure and lysis of
adhesions. On January 31, 2006 Dr. Pfeffer released appellant to limited-duty work. A
February 14, 2006 report noted that appellant had a hysterectomy due to pelvic organ prolapse
due to being a rural carrier and repetitive heavy lifting.
By decision dated May 24, 2006, the Office denied modification of its January 30, 2006
decision finding that the medical evidence submitted was not sufficient to accept the claimed
condition as work related.
Appellant subsequently submitted a November 13, 2006 report from Dr. John Ellis, a
Board-certified family practitioner, who provided a history of appellant’s work activities and
medical treatment. Dr. Ellis noted appellant’s complaint of intermittent low back and lower
abdominal pain. After examining her, he diagnosed vaginal prolapse and enterocele status
postsurgery and muscle tendon unit strain of the lumbosacral spine. In a section of the report
titled “cause of injury,” Dr. Ellis indicated that appellant’s injury and impairment arose out of
her employment and was causally connected to job activities such as repetitive lifting, lifting up
to 70 pounds, pushing, pulling, carrying, twisting and squatting directly caused vaginal prolapse
and enterocele. He also noted that appellant’s repetitive job duties also caused soft tissue injury

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to her lumbosacral spine resulting in chronic sprain injuries. Appellant requested reconsideration
on April 11, 2007.
By decision dated June 25, 2007, the Office denied modification of its May 24, 2006
decision, finding that the medical evidence was insufficient to establish her claim.
Appellant requested reconsideration on October 4, 2007. She submitted a September 4,
2007 report from Dr. Ellis, who reiterated that his opinion remained the same as in his
November 13, 2006 report. Dr. Ellis noted that appellant’s job duties required repetitive lifting
up to 70 pounds, pushing, pulling, carrying, twisting and bending. He indicated that vaginal
prolapse and enterocele was directly and causally related to appellant’s job duties. Dr. Ellis
opined that appellant’s repetitive job duties caused soft tissue injury to her lumbosacral spine
resulting in chronic sprain injury. He also noted that Dr. Pfeffer’s reports concurred with his
opinion. Appellant also submitted another copy of Dr. Ellis’ November 13, 2006 report.
By decision dated December 21, 2007, the Office denied appellant’s reconsideration
request without a merit review finding that the evidence submitted was repetitive.
In a statement dated April 21, 2008, appellant requested reconsideration. She contended
that the previously submitted medical evidence verified her diagnosis of vaginal prolapse and
enterocele and chronic lumbosacral spine sprain. Appellant also asserted that Dr. Ellis’ April 11,
2008 report established causal relationship.
On April 11, 2008 Dr. Ellis noted that appellant’s job duties required repetitive lifting up
to 70 pounds, pushing, pulling, twisting and carrying. He described the nature of her job and
indicated that her duties required repetitive bending, leaning and squatting. Dr. Ellis opined that
appellant’s vaginal prolapse and enterocele were directly and causally related to her job duties.
He further opined that her repetitive job duties also caused soft tissue injury to her lumbosacral
spine resulting in chronic sprain injury. Dr. Ellis noted that, based on his November 13, 2006
report and appellant’s medical history, her injury was related to her job duties. He also noted
that Dr. Pfeffer had stated that appellant’s injury was directly related to her job duties and that
she should not be involved in physical activities requiring heavy lifting.
By decision dated August 6, 2008, the Office denied appellant’s reconsideration request
without further merit review finding that the evidence submitted was cumulative and repetitious.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.1 Section 10.608(b) of Office
regulations provide that, when an application for reconsideration does not meet at least one of the
1

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007). See 5 U.S.C.
§ 8128(a).

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three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.2
ANALYSIS
In support of her October 4, 2007 reconsideration request, appellant submitted a
September 4, 2007 report of Dr. Ellis. She also submitted another copy of Dr. Ellis’
November 13, 2006 report.
The Board finds that the Office properly denied appellant’s request for reconsideration
without a merit review. Submission of Dr. Ellis’ November 13, 2006 report was not a basis for a
merit review as this report was previously of record. The Board has held that the submission of
evidence which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case.3
Dr. Ellis’ September 4, 2007 report, while new, is not relevant as it is repetitive of the
November 13, 2006 report of record. He noted his previously stated opinion on causal
relationship and did not provide any new medical reasoning for his opinion. Instead, Dr. Ellis
stated that he was reiterating his previous opinion. Consequently, this report does not warrant a
reopening of the claim for a merit review as it is repetitive in nature.
The Board notes that appellant’s October 4, 2007 reconsideration request did not
otherwise establish that the Office erroneously applied or interpreted a specific point of law or
advance a relevant legal argument not previously considered by the Office.
In support of her April 21, 2008 reconsideration request, appellant submitted a statement
asserting that the previously submitted medical evidence verified the diagnosis of vaginal
prolapse, enterocele and chronic lumbosacral spine sprain. She also asserted that Dr. Ellis’
April 11, 2008 report was sufficient to establish a causal relationship. Appellant’s statement
merely restated her belief that the evidence of record supported that her diagnosed condition was
causally related to her repetitive work duties. However, the underlying issue in the case is
medical in nature, which must be addressed by the submission of new and relevant medical
evidence. Therefore, appellant’s statement does not establish that the Office erroneously applied
or interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office.
The April 11, 2008 report of Dr. Ellis is duplicative evidence as it is repetitive of the
physician’s opinion contained in his November 13, 2006 report, which was previously
considered by the Office. As in his September 4, 2007 report, he essentially repeated the opinion
on causal relationship that was contained in the November 13, 2006 report. Dr. Ellis noted the
same types of duties performed by appellant and expressed his opinion on causal relationship in
the same terms as set forth in his previous report. As noted, evidence that duplicates evidence
already of record is not sufficient to warrant a merit review.
2

20 C.F.R. § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

3

See D.K., supra note 1. D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

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Consequently, the evidence and argument submitted in support of the April 21, 2008
reconsideration request did not meet any of the three regulatory requirements needed to reopen a
case for merit review under section 8128(a). The Office properly denied this request for
reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant requests for reconsideration
without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 6, 2008 and December 21, 2007 are affirmed.
Issued: June 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, Il, Employer
__________________________________________

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

Docket No. 21-0524
Issued: September 14, 2021

Case Submitted on the Record

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

JURISDICTION
On February 18, 2021 appellant filed a timely appeal from a January 13, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish that an injury
occurred in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 13, 2021 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.

FACTUAL HISTORY
On December 1, 2020 appellant, then a 28-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she experienced tingling and pain in her right knee when
delivering on her route at a minimum of eight hours per day while in the performance of duty. She
noted that she became aware of her condition and its relationship to her federal employment on
November 14, 2020. Appellant stopped work on November 14, 2020.
In an undated narrative statement, appellant explained that she had the largest route, which
took 8 hours to complete, but felt more like 9 or 10 hours. After she finished her route, she
delivered additional mail, which took 30 minutes. Thereafter, appellant realized that she had two
parcels to deliver on her mounted route. After the last drop off on her route she felt tingling in her
right knee that went down to her right big toe and lower back.
Appellant submitted an unsigned and substantially illegible duty status report (Form
CA-17).
Appellant also submitted diagnostic test reports from Dr. Kantilal Chandarana, Boardcertified in diagnostic radiology and nuclear medicine. In a November 17, 2020 lumbar spine
x-ray report, Dr. Chandarana reported findings of mild levoscoliosis at the thoracolumbar junction,
well-preserved disc spaces without significant hypertrophic spurring, no vertebral compressions
or subluxations, and intact pedicles and spines. In a right hip x-ray report of even date, he provided
impressions of no other significant abnormalities and no displaced fracture or dislocation.
Additionally, appellant submitted diagnostic test reports from Dr. Sameul O. Hanif, a
Board-certified diagnostic radiology. In a November 19, 2020 right knee x-ray report, Dr. Hanif
provided an impression of no significant radiologic abnormality. In a right foot x-ray report of
even date, he provided an impression of no significant adverse radiographic finding.
On November 23, 2020 Dr. Abhishek Mehta, a family practitioner, diagnosed appellant as
having right toe pain.
In a development letter dated December 9, 2020, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of additional factual and medical evidence
needed to establish her claim. Appellant was requested to complete a questionnaire concerning
the job activities that she believed contributed to her condition and a narrative medical report from
her physician, which contained a detailed description of findings and diagnoses and the physician’s
opinion, supported by a medical explanation, as to how the reported work activities caused,
contributed to, or aggravated her medical condition. In a separate development letter of even date,
OWCP requested that the employing establishment provide details related to appellant’s claim and
whether it concurred with her allegations. Both parties were afforded 30 days to submit the
requested information.
OWCP subsequently received a partially legible copy of the previously submitted Form
CA-17 report. The signature of the provider was illegible. The December 18, 2020 Form CA-17
report provided a diagnosis of right knee pain and indicated that appellant was unable to work.

2

In a December 16, 2020 narrative statement, appellant reiterated her history of injury. She
claimed that her condition had worsened.
By decision dated January 13, 2021, OWCP denied appellant’s occupational disease claim,
finding that the factors of her federal employment had not been established. It explained that she
failed to respond to its December 9, 2020 development letter, which requested a detailed statement
regarding her mechanism of injury. Further, OWCP found that the medical evidence of record
was insufficient to establish a medical condition causally related to appellant’s claimed
employment factors. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
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. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 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

3

Supra note 1.

4

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
7

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).
8

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that an injury
occurred in the performance of duty, as alleged.
The Board finds that appellant has not established the factual component of her claim as
she failed to sufficiently describe the circumstances surrounding the occupational factors, which
she believed that caused or contributed to her alleged right knee condition. To establish a claim
for compensation in an occupational disease claim, an employee must submit a statement, which
identifies the factors of employment believed to have caused his or her condition. 10
In her narrative statements, appellant provided a vague description of the occupational
factors she believed had caused her right knee condition, indicating that “after the last drop off”
she felt tingling in her right knee that went down to her right big toe and lower back. However,
this statement did not describe the specific employment factors she believed caused or contributed
to her condition.11
In its development letter, OWCP informed appellant that the evidence submitted was
insufficient to establish that she suffered from an occupational disease as alleged. It asked her to
complete an attached questionnaire describing what employment factors she believed caused or
contributed to her condition and requested medical evidence establishing that her medical
condition was causally related to employment factors. However, appellant failed to provide a
detailed narrative statement describing the employment factors, which she believed contributed to
her condition.12 As noted, she bears the burden of submitting a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of a
disease or condition. 13
As appellant has not described the employment factors alleged to have caused her injury,
the Board finds that she has not met her burden of proof to establish that an injury occurred in the
performance of duty, as alleged. As such, the medical evidence need not be addressed.14

9

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

See S.W., Docket No. 19-1609 (issued February 12, 2020); A.M., Docket No. 19-1269 (issued December 4, 2019);
C.L., Docket No. 19-0042 (issued April 17, 2019); D.M., Docket No. 18-0335 (issued June 18, 2018); S.J., Docket
No. 17-1798 (issued February 23, 2018).
11

Id.

12

See supra note 10.

13

Id.; Victor J. Woodhams, supra note 7.

14
See S.W., supra note 10; A.M., supra note 10; S.J., supra note 10; E.V., Docket No. 19-0447 (issued June 25,
2019); see also Bonnie A. Contreas, 57 ECAB 364, 368 n.10 (2006).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that an injury
occurred in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, SPRINGFIELD POST
OFFICE, Springfield, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1193
Issued: March 15, 2022

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 August 2, 2021 appellant, through counsel, sought an appeal from a purported July 27,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1193.
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
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of

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

The case record also contains March 24 and June 30, 2021 decisions of OWCP. As counsel did not appeal from
those decisions, the Board will not consider them in this appeal. See 20 C.F.R. § 501.3; see also D.E., Docket No. 210531 (issued June 16, 2021).
3

5 U.S.C. § 8101 et seq; 20 C.F.R. §§501.2(c) and 501.3(a).

the date appellant filed his appeal.4 The Board notes that the case record does not contain a final
adverse decision of OWCP dated July 27, 2021.5
As there is no final adverse decision of OWCP, appealed by counsel within 180 days of
the filing of this appeal, the Board concludes that the appeal docketed as No. 21-1193 must be
dismissed.6
Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1193 is dismissed.
Issued: March 15, 2022
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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
4

5

By order dated July 27, 2021, the Board dismissed, at counsel’s request, a timely appeal from the March 24, 2021
merit decision. Order Dismissing Appeal, Docket No. 21-0762 (issued July 27, 2021). That order became final upon
the expiration of 30 days from the date of its issuance and is not subject to further review. 20 C.F.R. § 501.6(d).
6

Id.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF LABOR, JOB CORPS,
Harpers Ferry, WV, Employer
__________________________________________

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Appearances:
Douglas P. Desjardins, Esq., for the appellant
Thomas G. Giblin, Esq., for the Director

Docket No. 08-1201
Issued: December 16, 2008

Oral Argument October 9, 2008

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

JURISDICTION
On March 17, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 5, 2008 merit decision regarding a third-party recovery.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office properly determined the refund due from the third-party
recovery received by appellant.
FACTUAL HISTORY
On February 16, 1996 appellant, then a 19-year-old apprentice trainee was involved in a
train accident while in the performance of duty. The Office accepted that he sustained a neck
sprain, back sprain and post-traumatic stress disorder due to the accident. Appellant received
appropriate compensation from the Office for disability and medical expenses and he currently
receives compensation for total disability.

In October 2003 appellant’s attorney advised the Solicitor of Labor (SOL) that a jury
reached a verdict in the third-party case against CSX Transportation (CSX) for $353,781.00.1
The Department of Labor then applied the statutory formula in 5 U.S.C. § 8132 and the
implementing regulations, to determine that appellant must reimburse the United States the
amount of $95,824.61.
Counsel asserted that no legal liability was created against any entity for lost wages and
indicated that the court did not allow him to make any argument concerning lost wages. He
argued that appellant is required to reimburse the United States only for past medical expenses
awarded by the jury. Counsel claimed that the holding of the U.S. Supreme Court case, U.S. v.
Lorenzetti, 467 U.S. 167 (1984), was distinguishable because appellant’s case involved a jury
verdict and the Lorenzetti case involved a settlement.
On June 29, 2005 counsel sent a partial payment of reimbursement and contested the
calculation of the statement of recovery. He objected to the inclusion of lost wages in the
recovery as a taking without just compensation. In a July 20, 2005 letter, the Solicitor of Labor
explained that in the Lorenzetti case the U.S. Supreme Court held that the United States is
entitled to be reimbursed for compensation under the Act out of any damage award or settlement
made in satisfaction of a third-party liability for personal injury or death, regardless of the
elements of damage for which recovery is made.
In an August 19, 2005 letter, counsel repeated his contention that the United States had
no right of recovery in appellant’s noneconomic damage award. He asserted that no legal
liability was created in any person for lost wages in that the court prohibited appellant from
making an argument to recover lost wages because he did not have a history of past earnings.
Counsel asserted that the SOL could have intervened in the third-party lawsuit to protect its
rights if it disagreed with his position. He enclosed checks in the amount of $65,427.00 and
$283.70.
In an August 23, 2005 letter, the SOL advised counsel that under the statement of
recovery an $86,603.16 refund and a $13,173.50 credit for future benefits had been sent to the
Office. The SOL indicated that the first $13,173.50 in compensation received subsequent to the
recovery would be an overpayment and subject to recovery in accordance with Office
overpayment procedures. The SOL noted that the recovery statement prepared for the Office
reflected a refund for $95,824.61 but did not result in an overpayment. Under 5 U.S.C. § 8132,
the total amount to be refunded was reduced to reflect the United States contribution to
attorney’s fees and, to appellant’s advantage, this method resulted in a lower total obligation.
In an August 8, 2007 letter, the Office advised counsel that the original amount owed to
satisfy the United States’ right of reimbursement was $95,824.61. It indicated that three separate
payments were received totaling $86,603.16 and stated that a balance of $9,221.45 was owed.
The Office asserted that counsel disregarded the statutory formula and noted that the $9,221.45
must be submitted to the Department of Labor to satisfy his and appellant’s statutory obligation
1

The SOL handles certain aspects of subrogation under the Act. See 20 C.F.R. § 10.705.

2

under 5 U.S.C. § 8132. It advised appellant that it would begin deducting $148.50 from his
compensation payments every 28 days until the balance of the right of reimbursement was paid.
In a February 5, 2008 decision, the Office determined that appellant had not established
legal grounds for excluding his recovery for pain and suffering and future medical expenses from
the amount subject to the United States right of reimbursement. It found that the United States
was entitled to a refund of payments made to appellant based upon the total proceeds of his thirdparty suit, including the awards for pain and suffering and future medical expenses. The Office
determined that the outstanding amount of the refund was $9,221.45.
LEGAL PRECEDENT
Under 5 U.S.C. § 8132, a beneficiary under the Act who receives a recovery from a third
party responsible for the beneficiary’s injuries covered by the Act, after deducting the costs of
the suit and a reasonable attorney’s fee, is required to refund to the United States the amount of
compensation paid by the United States and credit any surplus to future payments of
compensation paid for the same injury. Moreover, no insurer, attorney, or other person shall pay
or distribute to the beneficiary or his designee the proceeds of such suit or settlement without
first satisfying or assuring satisfaction of the interest of the United States.2 Under the Office’s
regulations, when a settlement or judgment is paid to, or for, one individual, the entire amount,
except for the portion representing damage to real or personal property, is reported as the gross
recovery.3
In U.S. v. Lorenzetti, 467 U.S. 167 (1984), the employee’s third-party tort recovery did
not include all elements of his damages. The U.S. Supreme Court stated:
“The answer to the question here is evident on the face of the statute.... Section
8132 imposes only two conditions precedent to an employee’s obligation to
refund … the amount of compensation paid by the United States. The first is that
the employee must have suffered an injury or death under circumstances creating
a legal liability in a third party to pay damages. The second is that the employee
or his beneficiaries must have received money or other property in satisfaction of
that liability.”4
The Board has held that it is clear that the entire recovery from a third party, whether
characterized as being for pain and suffering, medical expenses, loss of wage, or prospective loss
of income, is subject to the duty to reimburse the United States for compensation payable for the
same injury.5 The Board has rejected the argument that certain types of compensation such as
vocational rehabilitation benefits need not be reimbursed to the United States under 5 U.S.C.
§ 8132 noting that this statutory provision makes clear that the Office is entitled to be refunded
2

5 U.S.C. § 8132.

3

20 C.F.R. § 10.712(a).

4

U.S. v. Lorenzetti, 467 U.S. 167, 173-74 (1984).

5

Charles Howell, 38 ECAB 421 (1987).

3

from a third-party recovery all “compensation” paid by the Office to an employee for his
employment-related injury.6
ANALYSIS
The Office determined that appellant still owed the United States a refund of $9,221.45
from a third-party recovery. The Board finds that the Office properly determined that the United
States is entitled to a refund of payments made for under the Act for medical expenses and lost
wages from an employee whose third-party recovery compensates him for past and future
medical expenses and pain and suffering but not for lost wages.
Counsel argued that the United States right of reimbursement attaches only to the jury’s
award for past medical bills and not for future medical expenses or pain and suffering. Pursuant
to the terms of 5 U.S.C. § 8132, the regulations promulgated under the Act at 20 C.F.R.
§ 10.712, and the relevant case law, the United States’ statutory right of reimbursement attaches
to the total amount of damages awarded by the jury, after deducting from the award the “costs of
suit and a reasonable attorney’s fee.”7 Under the Act, these are the only amounts that can be
excluded from appellant’s third-party recovery when calculating the right of reimbursement.
Accordingly, he is required to reimburse the United States for all compensation subject to the
strictures of 5 U.S.C. § 8132.
Appellant satisfies both conditions precedent established in the Act and addressed in the
Lorenzetti case by the U.S. Supreme Court and by the Board where the beneficiaries have
questioned the obligation to reimburse the United States.8 He sustained an injury which created
a legal liability in CSX to pay damages. Appellant received a recovery from CSX in satisfaction
of that liability. Therefore, he must refund to the United States the amount of compensation paid
by the United States. The Office does not have discretionary authority under 5 U.S.C. § 8132 to
waive or compromise the required reimbursement amount.
Counsel argued that appellant’s award for future medical expenses in the amount of
$90,000.00 should not be included in the gross recovery and that the Office should be
responsible for future medical bills only to the extent they exceed that amount. Appellant’s
argument is contrary to the relevant precedent which provides that the entire recovery is subject
to the reimbursement provisions of 5 U.S.C. § 8132 regardless of whether the recovery included
wage-loss and medical expenses.9
Counsel contends that appellant is not required to reimburse the United States for lost
wages because CSX, the negligent third party, was not “legally liable” to compensate him for
lost wages because he could not recover loss wages at trial. However, section 8132 of the Act
does not refer to types of damages or require beneficiaries to reimburse the United States only
6

See Joseph D. Hale, Jr., 40 ECAB 610, 613 (1989).

7

See 5 U.S.C. § 8132 and supra notes 2, 3, 5 and 6 and accompanying text.

8

See supra notes 4 through 6 accompanying text.

9

See supra notes 5 and 6 and accompanying text.

4

for those damages recovered by settlement or trial. Counsel also argued that Lorenzetti only
applies to cases in which the parties reach a settlement. However, 5 U.S.C. § 8132 states that a
beneficiary must reimburse the government if he receives money or other property “as the result
of suit or settlement.”10 Counsel argued that appellant has a property interest in his cause of
action that the United States cannot take and that the Office’s enforcement of the statutory right
of reimbursement constitutes a taking of property in violation of the Fifth Amendment of the
United States Constitution. However, the Board does not have jurisdiction to review
constitutional issues.11
The Board finds that the Office properly determined the amount of the refund due based
on appellant’s third-party recovery. The Board has reviewed the Office’s calculations, based on
this principle, regarding the amount due from the third-party recovery received by appellant. It
properly calculated that appellant owed $9,221.45 to the United States.
CONCLUSION
The Board finds that the United States is entitled to a refund of Act payments for medical
expenses and lost wages from an employee whose third-party tort recovery compensates him for
past and future medical expenses and pain and suffering but not for lost wages. The Board
further finds that the Office properly determined that appellant owed $9,221.45 to the United
States.

10

5 U.S.C. § 8132.

11

See Vittorio Pittelli, 49 ECAB 181 (1997) (finding that as an administrative body the Board does not have
jurisdiction to review a constitutional claim).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 5, 2008 decision is affirmed.
Issued: December 16, 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
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Inglewood, CA, Employer
__________________________________________

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Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1251
Issued: March 8, 2022

Case Submitted on the Record

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

JURISDICTION
On August 18, 2021 appellant, through counsel, filed a timely appeal from a March 4, 2021
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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective January 13, 2020 as she had no further disability or
residuals causally related to her accepted employment injury; and (2) whether appellant has met
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.

her burden of proof to establish continuing disability or residuals on or after January 13, 2020 due
to her accepted employment injury.
FACTUAL HISTORY
On September 25, 1995 appellant, then a 27-year-old part-time flexible letter carrier, filed
an occupational disease claim (Form CA-2) alleging that she sustained bilateral heel pain causally
related to factors of her federal employment, including casing mail and walking. OWCP accepted
the claim for bilateral plantar fibromatosis and a right calcaneal spur. It paid appellant wageintermittent wage-loss compensation for periods of total and partial disability.
By decision dated August 15, 2012, OWCP reduced appellant’s wage-loss compensation,
effective that date, based on its finding that she had the capacity to earn wages in the selected
position of receptionist.
In a report dated March 26, 2014, Dr. Joseph M. Page, an orthopedic surgeon, advised that
he was treating appellant for bilateral plantar fasciitis and planovalgus feet. On examination he
found ligamentous laxity and pain over the plantar fascia. Dr. Page recommended new shoes and
noted that appellant had a collapsed arch. He instructed her to return as needed.
On April 19, 2019 OWCP referred appellant to Dr. Richard A. Rogachefsky, a Boardcertified orthopedic surgeon, for a second opinion examination. In the accompanying statement
of accepted facts (SOAF), it advised that appellant had an episode of bilateral plantar fasciitis
walking on her route and that it had accepted her claim for plantar fibromatosis and calcaneal spur.
In a report dated May 2, 2019, Dr. Rogachefsky discussed appellant’s history of injury and
provided his review of the evidence of record. On examination he found intact sensation and full
strength of the right foot and ankle, mild tenderness of the right heel, negative varus and valgus
stress tests, and a negative anterior drawer test of the right ankle. Dr. Rogachefsky further found
intact sensation and full strength with mild tenderness to palpation of the left foot and plantar heel,
but no swelling, erythema, or ecchymosis. He found a mild pes planus deformity of the bilateral
feet. Dr. Rogachefsky diagnosed bilateral plantar fibromatosis and calcaneal spurs. He indicated
that appellant had objective findings of a “well-healed scar in the right heel and very mild pes
planus deformity on the right and left feet. Subjective findings are mild pain and tenderness in the
right and left plantar heel regions.” Dr. Rogachefsky opined that the accepted employment-related
condition had resolved, noting that appellant had “minimal tenderness to palpation, minimal
discomfort, and minimal subjective complaints and objective findings.” He found that she required
no further medical treatment and could return to her usual employment as a letter carrier without
restrictions.
On December 9, 2019 OWCP notified appellant of its proposed termination of her
compensation as the weight of the evidence established that she no longer had any employmentrelated disability or residuals due to her accepted employment injury. It afforded her 30 days to
submit additional evidence or argument if she disagreed with the proposed termination.
By decision dated January 13, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. It found that Dr. Rogachefsky’s opinion

2

represented the weight of the evidence and established that she had no further disability or residuals
of her accepted employment injury.
In a report dated October 28, 2020, Dr. John B. Dorsey, a Board-certified orthopedic
surgeon, reviewed appellant’s history of injury and noted that she had last worked for the
employing establishment in 2010. He discussed her complaints of bilateral foot pain with
numbness and tingling radiating into the right lower leg and left ankle. On examination Dr. Dorsey
found bilateral pes planus deformity or flat feet, worse on the right. He found tenderness to
palpation bilaterally from the bottom of the foot to the heels and noted that appellant had gait
difficulty because of pain. Dr. Dorsey further found hypersensitivity to pinprick and touch on the
right heel. He noted that x-rays from 2010 revealed bilateral heel spurs and a hallux valgus
deformity. Dr. Dorsey diagnosed bilateral plantar fibromatosis and a right calcaneal spur. He
requested that OWCP expand the acceptance of the claim to include neuropathy of the medial
calcaneus nerve and anxiety and depression as a consequential injury. Dr. Dorsey indicated that
appellant received medication from a psychiatrist, but had not received treatment for her physical
symptoms in four years. He opined that her employment-related conditions had not resolved.
Dr. Dorsey related:
“Over and above that, [appellant] continues to have anxiety and depression related
to the pain in her medial heel, which is a hypersensitivity/neuropathy, which
continues to the present time. There is evidence of hypersensitivity from the
posteromedial heel to the medial malleolus to pinprick and touch as well as pes
planus of both feet, right worse than left. [Appellant] continues to have an unusual
gait (a steppage/neuropathic gait without true foot drop) in which she tries to avoid
striking her heels, and she has a great deal of difficulty trying to squat due to pain
in her heels and in her posterior plantar feet.”
Dr. Dorsey recommended continued treatment. He found that appellant was disabled from
her usual employment, but could work as a clerk.
On December 9, 2020 appellant requested reconsideration.
By decision dated March 4, 2021, OWCP denied modification of its January 13, 2020
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

3

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

3

the employment. 4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment. 7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury.
The Board finds that OWCP properly accorded the weight of the evidence to
Dr. Rogachefsky, who provided a second opinion examination on May 2, 2019. Dr. Rogachefsky
discussed appellant’s history of injury and provided examination findings showing no loss of
sensation or strength and findings of mild tenderness to palpation in the feet and a bilateral mild
pes planus deformity. He diagnosed bilateral plantar fibromatosis and calcaneal spur.
Dr. Rogachefsky asserted that appellant had no residuals of the accepted employment injury based
on the minimal examination findings. He opined that she could resume he r regular employment
duties without restrictions and required no further medical treatment.
Dr. Rogachefsky based his opinion on a proper factual and medical history and findings on
physical examination. He provided medical rationale for his opinion by explaining that the
minimal findings on examination failed to support continued residuals or disability due to the
accepted employment conditions.8 Moreover, there is no contemporaneous medical evidence
demonstrating continued disability or residuals. The Board, therefore, finds that OWCP properly
relied upon the reports of Dr. Rogachefsky in terminating appellant’s wage-loss compensation and
medical benefits.9
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 10 To establish causal relationship between the condition as well as any
4

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

5

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

6

E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

7

A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

8

See E.J., supra note 6.

9

See L.S., Docket No. 20-1204 (issued October 4, 2021); L.B., Docket No. 19-1380 (issued February 11, 2020).

10

See S.M., Docket No. 18-0673 (issued January 25, 2019); Manuel Gill, 52 ECAB 282 (2001).

4

attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such causal
relationship.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 12 This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case. 13
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
Subsequent to the termination of appellant’s compensation, appellant submitted a report
dated October 28, 2020 from Dr. Dorsey. Dr. Dorsey reviewed the history of injury and her
complaints of bilateral foot pain and numbness. He found a ples planus deformity bilaterally and
hypersensitivity to pinprick on the right heel. Dr. Dorsey diagnosed bilateral plantar fibromatosis
and a right calcaneal spur. He further diagnosed as related to the accepted employment injury
neuropathy of the medial calcaneus nerve and anxiety and depression as a consequential injury.
Dr. Dorsey found that appellant had objective findings of a neuropathic gait and hypersensitivity
in the medial heel. He opined that she was disabled from her usual employment, but could work
as a clerk. Dr. Dorsey advised that appellant required further medical treatment.
Dr. Rogachefsky, the second opinion examiner, found that appellant had no residuals of
her left shoulder condition. Both Dr. Dorsey and Dr. Rogachefsky provided rationale for their
respective opinions based on their review of the medical evidence and findings on examination.
The Board, therefore, finds that a conflict in medical opinion exists regarding whether ap pellant
has established continuing employment-related disability or residuals on or after
January 13, 2020.14
OWCP’s regulations provide that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of a second opinion physician, OWCP shall appoint
a third physician to make an examination. 15 The Board will, thus, remand the case for OWCP to
refer appellant to an impartial medical specialist, pursuant to 5 U.S.C. § 8123(a), to determine
whether she has met her burden of proof to establish continuing employment-related disability or
residuals on or after January 13, 2020 due to her accepted employment injury. The specialist
should further address whether the acceptance of appellant’s claim should be expanded to include
any additional conditions. Additionally, on remand OWCP shall update the SOAF to clarify that
11

Id.

12

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
13

20 C.F.R. § 10.321.

14

See B.C., Docket No. 16-0978 (issued November 21, 2016).

15

5 U.S.C. § 8123(a); G.K., Docket No. 16-1119 (issued March 16, 2018).

5

it has accepted a calcaneal spur on the right side instead of bilaterally. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury. The Board further finds that the case is not in posture
for decision on the issue of whether appellant has met her burden of proof to establish continuing
employment-related disability or residuals on or after January 13, 2020 due to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: March 8, 2022
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, AIR CARGO
CENTER, Portland, OR, Employer
__________________________________________

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)

Appearances:
Thomas J. Flaherty, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-541
Issued: June 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 16, 2015 appellant, through counsel, filed a timely appeal from a
December 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
July 16, 2013.
FACTUAL HISTORY
On July 25, 2013 appellant, then a 46-year-old automated parcel bundle sorter clerk, filed
a traumatic injury claim (Form CA-1) alleging that she sustained a back injury on July 16, 2013.
She stated that she was bending over a cart and felt a pull in her lower back. In an accident
1

5 U.S.C. § 8101 et seq.

report dated July 16, 2013, appellant stated that she was bending over a utility cart and
apparently overextended her body and felt a pull in her lower back. The record contains a Form
CA-16 (authorization for examination and/or treatment) signed by an employing establishment
management specialist on July 25, 2013. The form authorized medical treatment at the
Providence Medical Center. In an August 11, 2013 statement, appellant acknowledged prior
back injuries and that the July 16, 2013 incident may have caused a new injury as well as
aggravating her preexisting conditions.
Appellant received treatment on July 17, 2013 at the Providence Medical Center
emergency department. In a report of that date, Dr. Aaron Burchfield, Board-certified in
emergency medicine, stated that she had a history of chronic back pain and that appellant had
been bending over when she felt pain in the right lumbar area. He provided results on
examination and stated that it appeared appellant had exacerbated her back pain by bending over.
Dr. Burchfield diagnosed lumbar strain. Appellant also received treatment from a nurse
practitioner on July 17, 2013.
In a report dated July 23, 2013, Dr. Joseph Smith, Board-certified in occupational
medicine, noted that appellant had been seen by a nurse practitioner for low back pain. He stated
that approximately 10 months ago she had aggravated a nonwork-related “discogenic medical
issue,” and though it had subsided, she apparently had some ongoing pain since that time.
According to Dr. Smith, appellant felt that her current symptoms were due to lifting some items
out of a bin at work, but she was not precise about a specific incident and felt it was a cumulative
effect of working out of a bin. He provided results on examination. Dr. Smith stated that, after
his examination, and reviewing nurse practitioner notes, he did not find that “the standard of 51
percent of work-related events as causing [appellant’s] current presentation as being present in
this patient.” He noted that she had a long-standing history of the same symptoms, though under
different circumstances, some 10 months earlier. Dr. Smith stated that appellant “has had
ongoing pain that in my clinical opinion has merely built over time to finally culminate once
again in the sciatic presentation that differs from her typical baseline of low back pain. I think it
is more likely than not that this is the reason for her present symptoms of progressive increase
from her baseline of her chronic low back pain and degenerative disc medical issues.” Dr. Smith
stated that appellant “clearly has some significant chronic underlying issues that I am sure her
work duties do provoke. I think all we are noting in this instance is that the preponderance of the
clinical examination, clinical picture, and clinical evidence does not support the fact that at least
51 percent responsibility for her current more acute presentation is due to workplace activities
that she describes.” Dr. Smith reported that appellant’s job involved lifting pieces of mail out of
a bin and sorting it, although there was “no specific incident really to note.” He concluded that
her present symptoms were “the natural progression of her chronic preexisting degenerative disc
medical issue.”
With respect to diagnostic studies, the record contains an August 2, 2013 lumbar x-ray
report from Dr. Michael Evitts, an osteopath, who diagnosed lumbar spondylolisthesis L5-S1,
with about 25 percent anterior subluxation that appeared to have worsened somewhat from a
prior August 12, 2011 magnetic resonance imaging (MRI) scan. Dr. Evitts noted progressive
disc degeneration at L5-S1.

2

By decision dated September 6, 2013, OWCP denied the claim for compensation. It
found the medical evidence was insufficient to establish an injury causally related to the July 16,
2013 incident.
On September 24, 2013 OWCP received a request for a hearing before its hearing
representative. No action was initially taken on the hearing request.
In a Form CA-20 report dated September 1, 2013, Dr. Robert Kaye, a family practitioner,
diagnosed spondylolisthesis L4-S1. He checked a box “yes” that the condition was employment
related.
Appellant submitted a report dated September 3, 2013 from Dr. Laurens Johansen,
Board-certified in family medicine, who provided a history that she was lifting a “bale of mail”
when she felt a pop in her back. Dr. Johansen provided results on examination, stating that she
had low back pain with right leg radiculopathy since a July 16, 2013 work injury. According to
him, this was “the major contributing cause of appellant’s current condition” and need for
treatment.
In a report dated September 11, 2013, Dr. Darrell Brett, a Board-certified neurosurgeon,
provided results on examination. He stated that appellant would require lumbar surgery,
including L4-S1 laminectomy and L5-S1 fusion. Dr. Brett stated that a “pathologic worsening
occurred with her work injury/activity of [July 16, 2013] which is a major contributing factor,
combining with preexisting degenerative changes and prior surgery.”
Appellant underwent lumbar surgery on October 23, 2013. In a report dated January 4,
2014, Dr. Kaye found appellant unable to return to work.
By letter dated September 8, 2014, OWCP noted that appellant had timely submitted a
hearing request and a hearing scheduled for October 20, 2014. On October 7, 2014 appellant
submitted a March 24, 2014 report from Dr. Kaye. According to Dr. Kaye, she was treated on
July 26, 2013 by a colleague, Dr. Darnell D. Orton, a family practitioner, found that right sciatic
pain was essentially gone, but there was residual low back pain. He noted that appellant had a
preexisting back condition, referring to a June 7, 2011 MRI scan showing L4-5 annular tear, and
L5-S1 nerve impingement. Dr. Kaye further stated, “The obvious problem this case presents
appears to be one of the percentage of deterioration and causation of the preexisting problems
versus the active bending over a postal cart and retrieving something from inside it. In this case,
I do not feel intellectually gifted enough to make a decision on that issue, especially with the
preexisting problems that have gone on.” Dr. Kaye noted that Dr. Brett had stated that the work
injury was a major contributing factor.
In a report dated July 7, 2014, Dr. Brett stated that “the work injury of July 16, 2013
likely resulted in annular tearing and increased disc bulging at L4-5 and/or L5-Sl with nerve root
impingement, resulting in her radicular pain and need for treatment after she failed to respond to
three months of conservative care.” He again stated that there was a pathologic worsening with
the work injury.

3

A hearing was held on October 20, 2014.2
By decision dated December 5, 2014, the hearing representative affirmed the
September 6, 2013 OWCP decision. He found the medical evidence was insufficient to establish
an injury causally related to the July 16, 2013 employment incident.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”4 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.5 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.6
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.7 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.8
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
2

The transcript indicated that the hearing lasted for 26 minutes. Counsel questioned appellant regarding the
incident and her medical history. The hearing representative advised counsel when there was approximately 10
minutes remaining. Counsel finished questioning appellant and provided a concluding statement, arguing the
medical evidence was sufficient to establish the claim.
3

5 U.S.C. § 8102(a).

4

Valerie C. Boward, 50 ECAB 126 (1998).

5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

8

Id. at Chapter 2.805.3(d) (January 2013).

4

determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
In the present case, appellant alleged that she sustained injuries in the performance of
duty on July 16, 2013. The employment incident that she described was bending over a cart.
OWCP has accepted that the incident occurred as alleged. The issue is whether there was
sufficient medical evidence to establish an injury causally related to the incident.
The Board has reviewed the medical evidence and finds appellant did not meet her
burden of proof in this case. The emergency room physician, Dr. Burchfield, treated appellant
on July 17, 2013. He noted a chronic back pain, but did not otherwise discuss her medical
history. Dr. Burchfield stated that it appeared appellant had exacerbated her back pain by
bending over, without providing additional detail. He does not provide an opinion with
supporting rationale that is sufficient to establish an employment-related injury.
The report dated July 17, 2013 from a nurse practitioner is of no probative medical value.
Section 8101(2) of FECA provides that a physician includes, “surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of
their practice as defined by state law.”10 A nurse practitioner is not a physician under FECA and
her report is not considered probative medical evidence.11
Appellant was also treated on July 23, 2013 by Dr. Smith, but his report clearly does not
support her claim. Dr. Smith discussed her medical history and he noted a history of back pain.
He unequivocally opined that appellant’s current condition was related to progression of her
underlying degenerative back condition, not to a July 16, 2013 employment incident.12
Dr. Smith provided a probative medical opinion that does not support her claim for an injury
causally related to a July 16, 2013 incident.
Dr. Evitts diagnosed lumbar spondylolisthesis L5-S1, and progressive disc degeneration
at L5-S1, based upon an August 2, 2013 lumbar x-ray. He did not, however, offer any opinion
regarding the cause of these conditions.
In a September 3, 2013 report, Dr. Johansen described the July 16, 2013 incident as
appellant lifting a bale of mail. This was not the incident described by appellant in her claim
form or contemporaneous statements. She stated that she was bending over a cart when she felt a
pull in her back. Moreover, Dr. Johansen provided no medical rationale for his opinion that the
incident was a “major contributing cause” to appellant’s current condition. He did not provide a
9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

10

5 U.S.C. § 8101(2).

11

S.H., Docket No. 15-336 (issued April 14, 2015).

12

Although Dr. Smith refers to underlying issues that the “work duties do provoke,” the claim in this case was for
an injury resulting from a July 16, 2013 incident, not the performance of work duties over a period of time.

5

medical history, a clear diagnosis, or explain the pathophysiological process by which the
employment incident caused or aggravated a diagnosed condition.13
The reports from Dr. Kaye do not provide a rationalized medical opinion as to an injury
causally related to the July 16, 2013 incident. Dr. Kaye diagnosed spondylolisthesis, but the
checking of a box “yes” in a form report, without additional explanation or rationale, is not
sufficient to establish causal relationship.14 In his March 24, 2014 report, he refers to appellant’s
preexisting back condition and declines to provide an opinion on the issue presented. Dr. Kaye
notes the opinion of Dr. Brett, but the evidence of record from Dr. Brett is of diminished
probative value.
Dr. Brett stated in his September 11, 2013 report that there was a pathologic worsening of
appellant’s back condition from the July 16, 2013 incident, but he does not provide any
explanation describing how this occurred. Similarly, in his July 7, 2014 report he states, without
explanation, that the employment incident caused annular tearing and increased disc bulging at
L4-5 and/or L5-Sl with nerve root impingement. As noted above, a rationalized report would
provide a complete history and an explanation of the process by which the July 16, 2013 incident
caused or aggravated the diagnosed conditions. Dr. Brett does not provide a rationalized medical
opinion.
The Board accordingly finds that appellant did not meet her burden of proof in this case.
The medical evidence of record does not establish a diagnosed condition causally related to the
July 16, 2013 employment incident. According to Dr. Smith, who addressed appellant’s
preexisting back pain, stated that her condition was related to progression of her underlying back
condition.
The Board notes that the employing establishment did issue a Form CA-16 authorization
for medical treatment in this case. OWCP did not discuss the Form CA-16. Where an
employing establishment properly executes a Form CA-16 which authorizes medical treatment
as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim.15 The period for which
treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless
terminated earlier by OWCP.16 On return of the case record OWCP should properly address the
issue of medical treatment pursuant to the Form CA-16.
On appeal, appellant argues that the hearing representative abused her discretion by
limiting the time for the oral hearing. She argues that she was deprived of due process in this
case because the time allotted for the hearing deprived her of an opportunity to be heard. Under
13

See J.P., Docket No. 14-1966 (issued January 23, 2015); M.D., Docket No. 14-1498 (issued January 8, 2015);
C.T., Docket No. 11-625 (issued October 17, 2011).
14

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

15

Tracey P. Spillane, 54 ECAB 608 (2003).

16

See 20 C.F.R. § 10.300(c).

6

OWCP regulations, the hearing representative has “complete discretion to set the time, place, and
method of the hearing, including the amount of time allotted for the hearing, considering the
issues to be resolved.”17 The issue in this case was a medical issue, and the hearing
representative limited the hearing to approximately 30 minutes. There was no evidence that this
constituted an abuse of discretion in this case. Appellant did not request additional time at the
hearing, or otherwise raise the issue at the October 20, 2014 hearing. Nor has she explained
what specific evidence or argument she did not have an opportunity to present. Appellant had an
opportunity to submit relevant medical evidence, and did submit evidence. In addition, there
was opportunity to submit additional argument or evidence prior to the issuance of the hearing
representative decision. The Board finds that appellant had an opportunity to present her
arguments and there is no evidence that the hearing representative abused her discretion in this
case with respect to the time allotted for the hearing.
Appellant also argues that the medical evidence was sufficient to establish the claim. For
the reasons discussed above, the Board finds that she did not meet her burden of proof. The
record indicated that appellant had a preexisting back condition. The physician must provide an
accurate background, explain how the July 16, 2013 incident physiologically affected her back
condition, and why the opinion on causal relationship is consistent with the medical evidence
and the medical history.
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 established an injury in the performance of duty on
July 16, 2013. On return of the case record, OWCP should address the issue with respect to the
Form CA-16.

17

Id. at § 10.617.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 5, 2014 is affirmed.
Issued: June 3, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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

Docket No. 12-85
Issued: April 18, 2012

Case Submitted on the Record

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

JURISDICTION
On October 11, 2011 appellant filed a timely appeal of a September 28, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 days
elapsed from issuance of the most recent merit decision of January 26, 2011 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for an
oral hearing.

1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, the Board’s regulations provided up to one year to file
an appeal. 20 C.F.R. § 501.3(d)(2). For OWCP decisions issued on and after November 19, 2008, a claimant has
180 days to appeal. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
Appellant, a 52-year-old tractor trailer driver, filed a Form CA-1 claim for benefits on
December 8, 2010, alleging that he injured his neck and left shoulder on November 29, 2010
when the trailer door jammed, causing him to lunge forward and strike the door.
By letter dated December 10, 2010, OWCP asked appellant to submit additional factual
and medical evidence in support of his claim. No response was received.
By decision dated January 26, 2011, OWCP denied appellant’s claim, finding that he failed
to submit sufficient medical evidence to establish that he sustained neck and left shoulder
injuries in the performance of duty on November 29, 2010. This decision was mailed to
appellant’s address of record.3
On August 29, 2011 OWCP received a request for an oral hearing from appellant.
By decision dated September 28, 2011, OWCP denied appellant’s hearing request,
finding that it was untimely. It considered his request in its discretion and determined that the
issue in his case could equally well be addressed by requesting reconsideration by the district
OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.4
Section 10.615 of the federal regulations implementing this section of FECA provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.5 The
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.6 A claimant is entitled to a hearing or
review of the written record as a matter of right if the request is filed within 30 days.7

3

Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption arises when it
appears from the record that the notice was properly addressed and duly mailed. See Michelle Lagana, 52 ECAB
187 (2000).
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

Leona B. Jacobs, 55 ECAB 753 (2004).

2

While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.8
ANALYSIS
OWCP denied appellant’s traumatic injury claim by decision dated January 26, 2011. This
decision was mailed to appellant’s address of record. Appellant filed his request for an oral
hearing on August 29, 2011. As his request was not filed within 30 days of the January 26, 2011
decision denying his claim, it was untimely and he was not entitled to an oral hearing as a matter of
right.
OWCP exercised its discretionary authority with regard to appellant’s request. It notified
him that the issue in his claim could be equally well addressed by requesting reconsideration by
the district OWCP and submitting evidence not previously considered. The only limitation on
OWCP’s discretionary authority is reasonableness.9 There is no evidence that it abused its
discretion by denying appellant’s request for a review of the written record.10 The Board has held
that this is a reasonable exercise of OWCP’s discretionary authority.11
On appeal appellant argues the merits of his claim.
jurisdiction to review the merits of this claim.

As noted, the Board has no

CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for an oral hearing.

8

See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26
ECAB 354 (1975).
9

See Hubert Jones, Jr., 57 ECAB 467, 473 (2006).

10

See André Thyratron, 54 ECAB 257 (2002).

11

See G.W., Docket No. 10-782 (issued April 23, 2010); D.M., Docket No. 08-1814 (issued January 16, 2009);
Steven A. Andersen, 53 ECAB 367 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the September 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 15-46
Issued: February 12, 2015

Case Submitted on the Record

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

JURISDICTION
On October 6, 2014 appellant, through counsel, filed a timely appeal from the
September 9, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his request for reconsideration. The most recent merit decision was the
May 14, 2014 decision of the Board, which became final after 30 days of issuance and is not
subject to further review. The Board lacks jurisdiction to review the merits of appellant’s case,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c),
501.3 and 501.6(d).
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant, through counsel, contends that the decision is contrary to fact and
law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 On the most recent appeal the Board, in
a May 14, 2014 decision, found that appellant had not met his burden of proof to establish that he
sustained cubital tunnel syndrome in the performance of duty causally related to factors of his
federal employment.3 The facts of the previous Board decision are incorporated herein by
reference.
On June 19, 2014 appellant, through counsel, requested reconsideration. In support of his
reconsideration request, counsel submitted portions of a December 3, 2012 report by Dr. John
Ellis, a physician Board-certified in family practice, which counsel alleged had not been
previously considered. This report consists of a worksheet by the Ellis Clinic dated December 3,
2012 evaluating appellant’s impairment for schedule award purposes.
By decision dated September 9, 2014, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
As stated above, the only decision before the Board on this appeal is the nonmerit
decision of OWCP dated September 9, 2014 denying appellant’s reconsideration request.

2

On April 9, 2009 appellant, then a 39-year-old mail handler, filed an occupational disease claim attributing his
bilateral carpal tunnel syndrome and decreased muscle strength in his hands to repetitive employment tasks he
performed while sorting mail. The Board remanded the case for further development to OWCP on
November 3, 2010. See Docket No. 10-728 (issued November 3, 2010).
3

Docket No. 14-309 (issued May 14, 2014).

4

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

2

In support of his reconsideration request, appellant neither demonstrated that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. He submitted portions of a December 3, 2012
report by Dr. Ellis dealing with a schedule award. Although appellant’s counsel stated that this
report had not previously been submitted, the Board notes that the full December 3, 2012
narrative report and later submitted portions dealing with a schedule award was actually received
by OWCP on March 5, 2013. Accordingly, this report does not constitute pertinent new and
relevant evidence. Evidence that repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.8 The Board also notes that
the pages from the incomplete report that were submitted address appellant’s entitlement to a
schedule award, not whether appellant sustained cubital tunnel syndrome in the performance of
duty causally related to factors of his federal employment, which was the underlying issue in this
case. The Board has held that the submission of evidence which does not address the particular
issue involved in the case does not constitute a basis for reopening the case.9
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Accordingly, the Board finds that he did not meet any of the necessary
requirements and is not entitled to further merit review.10
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).

8

T.T., Docket No. 13-1717 (issued February 26, 2014).

9

D.H., Docket No. 14-735 (issued June 20, 2014).

10

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

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 9, 2014 is affirmed.
Issued: February 12, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, TACOMA CENTRAL
CARRIER FACILITY, Tacoma, WA, Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1972
Issued: May 12, 2011

Case Submitted on the Record

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

On July 27, 2010 appellant, through his representative, filed a timely appeal from the
March 22, 2010 merit decision of the Office of Workers’ Compensation Programs, which
determined his wage-earning capacity from actual wages and which reduced his wage-loss
compensation accordingly. The Office mailed its decision to appellant and to the employing
establishment.1
The Board has duly considered the matter and finds that the Office’s March 22, 2010
decision must be set aside. Office regulations require that a copy of the Office decision be sent
to the authorized representative.2
Appellant designated his representative before the Office on June 27, 2008. The Office
received the authorization on July 3, 2008 and acknowledged it that same day. Because the
record does not show that the Office mailed a copy of its March 22, 2010 decision to appellant’s

1

On January 12, 2007 appellant, a 54-year-old letter carrier, injured his left leg in the performance of duty when
he slipped on a patch of ice and fell. The Office accepted his claim for a closed fracture of the left tibia, unspecified.
2

Travis L. Chambers, 55 ECAB 138 (2003), reaff’d on recon., with technical corrections, November 4, 2003; 20
C.F.R. § 10.127.

authorized representative, the decision reducing appellant’s compensation was not properly
issued. Accordingly,
IT IS HEREBY ORDERED THAT the March 22, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for appropriate action.
Issued: May 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2