United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

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

Docket No. 11-287
Issued: August 19, 2011

Case Submitted on the Record

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

JURISDICTION
On November 16, 2010 appellant, through her representative, filed a timely appeal from
an August 4, 2010 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 sustained a recurrence of disability commencing
September 23, 2009.
FACTUAL HISTORY
On December 12, 2008 appellant, then a 56-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained cervical radiculopathy as a
1

5 U.S.C. § 8101 et seq.

result of repetitive motion in her federal employment. The reverse of the claim form indicated
that she stopped working on November 16, 2008 and returned to work November 21, 2008. By
decision dated September 15, 2009, OWCP accepted the following conditions: bilateral flexor
tenosynovitis, right tunnel radial neuropathy, right ulnar neuropathy, carpal tunnel median
neuropathy, right upper extremity, overuse syndrome, left upper extremity and cervical strain.2
According to a September 29, 2009 e-mail correspondence, appellant had returned to
work “on the Flat Sorters and Manual Flats,” which was not her date-of-injury position. In a
notice of recurrence (Form CA-2a) dated October 8, 2009, she claimed a recurrence of disability
commencing September 23, 2009. On the form appellant indicated that she had returned to work
on October 1, 2009, at four days a week. She stated that she had never healed from her original
injury and her work continued to aggravate the condition.
With respect to medical evidence, appellant submitted a September 23, 2009 narrative
report from Dr. Scott Fried, an osteopath, who stated that she reported “ongoing and
progressively worsening symptoms” that he stated were described in an August 19 treatment
note. Dr. Fried indicated that she had pain shooting through both arms from the neck.
According to him, “We again discussed [appellant’s] coming out of work but for now she would
really like to try to stick it out for financial reasons.”
The record contains two “disability” notes from Dr. Fried dated September 23, 2009.
One of the notes stated that appellant may continue current job as tolerated, with increase in
breaks from 5 to 10 minutes every hour and she would decrease work to four days a week.
Another September 23, 2009 note stated that she was under Dr. Fried’s care for documented
work injuries and due to an increase in symptoms she was unable to work from September 23 to
October 1, 2009.
In a report dated January 13, 2010, Dr. Fried stated that appellant was working three days
a week in a modified position, but was still pitching mail and that aggravated her condition. He
stated that symptoms were more tolerable and the pain better controlled.
By decision dated January 28, 2010, OWCP denied the claim for a recurrence of
disability. It found the medical evidence was insufficient to establish the claim.
Appellant requested a hearing before OWCP’s hearing representative, which was held on
May 18, 2010. Additional medical evidence was submitted to the record. In a report dated
November 30, 2009, Dr. Fried provided results on examination and indicated that appellant
should work three days a week. He stated that the present work activities were exacerbating her
work-related diagnoses. Dr. Fried further stated, “These work activities are outside the physical
limits of this disease and continuing these activities will no doubt worsen the symptoms as well
as underlying pathology. This could possibly lead to the need for surgery.”

2

The record indicates that OWCP paid compensation for wage loss from February 14 to March 20, 2009.

2

In a report dated May 27, 2010, Dr. Fried provided a history and results on examination.
He stated that on May 4, 2009 appellant reported ongoing and progressive symptoms. Dr. Fried
further stated:
“It should be noted further that in [May 2009] [appellant] sustained a significant
aggravation of the above[-]noted diagnoses and upper extremity conditions. This
was directly caused by the work activities she was performing and specifically the
change in her work where she had to go to more manually work including the
more aggressive reaching, lifting, pulling, pushing and casing activities. This
repetitive activity resulted in aggravation of these problems and also aggravation
of [appellant’s] shoulder problems and involvement of both shoulders resulting
ultimately in positive findings on her MRI scans….
“In summary, [appellant] has sustained significant acute injury in [May 2009]
worsening her already present accepted work conditions. She has new acute
injury with new acute conditions as noted above with aggravation of her
underlying upper extremity injuries.”
By decision dated August 4, 2010, OWCP’s hearing representative affirmed the
January 28, 2010 decision.
LEGAL PRECEDENT
OWCP’s regulations define the term recurrence of disability as follows:
“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
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.4 To establish a change in the
3

20 C.F.R. § 10.5(x).

4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman , 38 ECAB
222 (1986).

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nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
ANALYSIS
The record indicated that appellant did not return to her date-of-injury position after filing
her occupational claim, which was accepted for the cervical and upper extremity conditions
noted above. Although OWCP referred to a recurrence of disability commencing September 12,
2009, the Form CA-2a claimed disability commencing September 23, 2009. Appellant was off
work until October 1, 2009, and then returned to work at four days a week, with a further
reduction to three days a week. It is her burden of proof to establish a spontaneous change in the
nature and extent of an employment-related condition as of September 23, 2009.
Appellant received treatment on September 23, 2009 from Dr. Fried, who reported at that
time ongoing and progressively worsening symptoms, although he referred to an August 19,
2009 note and appeared to indicate that the symptoms were the same as the earlier date. In his
more detailed May 27, 2010 report, Dr. Fried noted progressive symptoms on May 4, 2009 and
“markedly worse” symptoms on August 19, 2009. His reports do not establish a specific change
in the nature and extent of an employment-related condition on September 23, 2009, but rather a
continuation of symptoms. Moreover, the opinion on disability commencing September 23,
2009 is unclear, as Dr. Fried appeared to indicate in his narrative report and a disability note that
appellant would continue working, and in another note, he stated that she was disabled.
As to causal relationship between appellant’s condition and any disability commencing
September 23, 2009, Dr. Fried did not refer to it as a spontaneous change in the employmentrelated condition. He opines in the May 27, 2010 report that appellant’s modified-job duties had
aggravated her condition as of May 2009. This would not be a recurrence of disability, but
rather a new injury. Even if an aggravation of a prior injury, if new employment factors are
implicated then it is a claim for a new injury.6
The issue before the Board on this appeal was a claim for a recurrence of disability
commencing September 23, 2009. On that issue appellant did not meet her burden of proof, for
the reasons noted above. On appeal, she argues that Dr. Fried provided proof of an overall
worsening of her condition. Dr. Fried’s reports do not establish a spontaneous change in the
nature and extent of an employment-related condition as of September 23, 2009.
It is not clear whether appellant has filed a claim for a new injury. OWCP’s hearing
representative noted that appellant could file a claim for a new injury for a shoulder condition.
As noted above, a claim for an aggravation of the arm conditions would also be a claim for a new
injury. Appellant indicated in her Form CA-2a that she felt her condition was aggravated by her
5

Maurissa Mack 50 ECAB 498 (1999).

6

See B.B., Docket No. 09-1858 (issued April 16, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.3(b)(2) (May 1997).

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current work, but OWCP did not request clarification. If OWCP has not already done so, it
should appropriately develop a claim for a new injury.
With respect to a recurrence of disability, 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 a recurrence of disability commencing
September 23, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 4, 2010 is affirmed.
Issued: August 19, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 21-1310
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On August 24, 2021 appellant filed a timely appeal from an April 29, 2021 merit decision
and an August 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 5, 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.

injury; and (2) whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on separate issues. 3 The facts and
circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The
relevant facts are as follows.
On July 18, 2000 appellant, then a 46-year-old heavy mobile equipment mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on June 28, 2000 he injured his left shoulder and
neck when installing a starter on an earthmover while in the performance of duty. He stopped
work on June 28, 2000 and returned to work on July 10, 2000. OWCP accepted the claim, assigned
OWCP File No. xxxxxx970 for right lateral epicondylitis and displacement of a cervical
intervertebral disc without myelopathy.
OWCP accepted that appellant sustained a right-hand contusion, a crush injury of the right
fingers, right carpal tunnel syndrome, a right Boutonniere deformity, and traumatic righ t hand
arthropathy due to a May 8, 2001 employment injury under OWCP File No. xxxxxx500 and right
carpal tunnel syndrome due to a June 5, 2003 employment injury under OWCP File No.
xxxxxx576. It administratively combined these claims with OWCP File No. xxxxxx970, with the
latter serving as the master file.
On December 9, 2004 the employing establishment notified appellant of its decision to
remove him for cause.
On July 23, 2019 OWCP expanded its acceptance of the claim to include impingement
syndrome of the left shoulder.
In a report dated March 10, 2020, Dr. John D. Marshall, who specializes in family
medicine, diagnosed displacement of a cervical intervertebral disc without myelopathy,
hypertension, and a shoulder injury.
In an April 22, 2020 report, Dr. Robert V. Glover, Jr., a cardiologist, discussed appellant’s
history of paroxysmal supraventricular tachycardia due to chemical exposure at work.
In a progress report dated May 6, 2020, Dr. Jeffrey A. Fried, a Board-certified orthopedic
surgeon, evaluated appellant for left arm weakness and noted that appellant was disabled and had
not worked in two years. He diagnosed cervical disc displacement, right carpal tunnel syndrome,
contracture at the proximal interphalangeal (PIP) joint of the right little finger, rotator cuff
syndrome, left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a
thyroid cyst, spondylolisthesis, grade 1, spondylolisthesis of the lumbar spine, and
supraventricular tachycardia.

3

Docket No. 15-1477 (issued October 22, 2015); Docket Nos. 09-1090 and 09-0226 (issued March 8, 2010).

2

On June 25, 2020 appellant filed a claim for compensation (Form CA-7) for disability from
work for the period March 5 to June 25, 2020. The employing establishment indicated on the form
that he had been removed for cause on December 13, 2004.
In a development letter dated July 2, 2020, OWCP indicated that appellant was alleging a
recurrence of disability on or around March 5, 2020. It noted that he had received schedule award
compensation through March 5, 2020 and had not been in receipt of wage-loss compensation prior
to the period of his schedule award. OWCP indicated that the employing establishment had
terminated appellant for cause effective December 13, 2004. It notified him of the definition of a
recurrence of disability and requested that he provide additional factual and medical information
supporting that his accepted condition worsened such that he was disabled from employment.
OWCP afforded appellant 30 days to respond to the request.
In an undated response received July 28, 2020, appellant asserted that he had not worked
since June 2008. He noted that the Social Security Administration (SSA) had found that he was
disabled in 2008. Appellant related that Dr. Fried had found that he was disabled under the current
file number. He submitted a decision from SSA finding that he was disabled as of
December 4, 2007.
In a progress report dated August 5, 2020, Dr. Fried evaluated appellant for left shoulder
pain and indicated that appellant was unable to work or perform overhead reaching. He diagnosed
other cervical disc displacement, right carpal tunnel syndrome, contracture at the PIP joint of the
right little finger, rotator cuff syndrome, left elbow bursitis, right shoulder pain, impingement
syndrome of the left shoulder, a thyroid cyst, spondy lolisthesis of the lumbar spine, and
supraventricular tachycardia. Dr. Fried opined that appellant remained disabled.
By decision dated August 28, 2020, OWCP found that appellant had not established a
recurrence of disability beginning March 5, 2020 causally related to his accepted June 28, 2000
employment injury.
On September 12, 2020 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In a report dated October 6, 2020, Dr. Fried evaluated appellant for left shoulder pain. He
noted that appellant had not worked in two years. Dr. Fried repeated the diagnoses in his prior
report. He again opined that appellant remained disabled.
By decision dated December 9, 2020, OWCP’s hearing representative affirmed the
August 28, 2020 decision.
On January 12, 2021 Dr. Fried advised that appellant “remains unemployable. [Appellant]
has multiple orthopedic problems including cervical disc displacement, right carpal tunnel
syndrome, contracture of right little finger, bursitis of left elbow, impingement and joint pain in
right shoulder and left shoulder, and spondylolisthesis of the lumbar spine. In addition, [appellant]
has a history of supraventricular tachycardia with his heart.” He concluded that appellant was
“disabled from participating in the economy.” In a January 12, 2021 progress report, Dr. Fried
provided his previous diagnoses and noted that appellant remained disabled.

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On February 18, 2021 appellant requested reconsideration. He submitted an April 14, 2021
progress report from Dr. Fried, who provided the same diagnoses and found that appellant
remained disabled.
By decision dated April 29, 2021, OWCP denied modification of its December 9, 2020
decision.
Thereafter, appellant resubmitted the January 12 and April 14, 2021 reports from Dr. Fried
and a January 22, 2010 SSA decision, finding that appellant was disabled beginning
December 4, 2007. He further submitted a March 2013 consultation report regarding his treatment
for tachycardia and an October 9, 2014 cardiology report.
In a rating decision dated June 1, 2021, the Department of Veterans Affairs (DVA)
continued its finding that appellant was 50 percent disabled due to sleep apnea and 30 percent
disabled due to supraventricular tachycardia.
On July 20, 2021 appellant requested reconsideration.
By decision dated August 5, 2021, OWCP denied appellant’s request for reconsideration
as he had not submitted evidence or raised an argument sufficient to warrant reopening his claim
for merit review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
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
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
4

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).

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evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 7 Where no such rationale is present,
the medical evidence is of diminished probative value.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury.
Appellant returned to work following his June 28, 2000 employment injury on
July 10, 2000. In December 2004, the employing establishment removed him from employment
for cause.
On January 12, 2021 Dr. Fried opined that appellant remained disabled from employment.
He diagnosed cervical disc displacement, right carpal tunnel syndrome, contracture of right little
finger, bursitis of left elbow, impingement, joint pain in right shoulder and left shoulder,
spondylolisthesis of the lumbar spine, and supraventricular tachycardia. Dr. Fried, however, failed
to address the cause of appellant’s disability or its relationship to his accepted employment injury.
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. 9
In progress reports dated May 6, August 5, and October 6, 2020, Dr. Fried discussed
appellant’s complaints of left shoulder pain and diagnosed other cervical disc displacement, right
carpal tunnel syndrome, contracture at the PIP joint of the right little finger, rotator cuff syndrome,
left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a thyroid cyst,
and spondylolisthesis of the lumbar spine. On May 6, 2020 he noted that appellant had not worked
in two years and was disabled. In his August 5 and October 6, 2020 reports, Dr. Fried indicated
that appellant remained disabled. He, while finding that appellant was disabled, did not address
whether the disability was causally related to the accepted employment injury. As noted, medical
evidence that does not offer an opinion regarding the cause of an employee ’s condition is of no
probative value on the issue of causal relationship or disability.10 Without a specific opinion
regarding how the accepted employment injury caused a recurrence of disability, Dr. Fried’s
reports are insufficient to meet appellant’s burden of proof.11

7

L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

8

M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

9

K.F., Docket No. 19-1846 (issued November 3, 2020); L.O., supra note 7; L.B., Docket No. 18-0533 (issued
August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
10

See id.

11

See D.B., Docket No. 21-0503 (issued August 24, 2021).

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In a March 10, 2020 report, Dr. Marshall diagnosed displacement of a cervical
intervertebral disc without myelopathy, hypertension, and a shoulder injury. On April 22, 2020
Dr. Glover advised that appellant had a history of paroxysmal supraventricular tachycardia due to
chemical exposure at work. As these reports, however, fail to address the issue of whether
appellant was disabled from employment beginning March 2020, they are of no probative value. 12
As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling conditions and the accepted injuries. Furthermore, the medical
evidence must directly address the dates of disability for work for which com pensation is
claimed.13 None of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused disability during the period in question. 14 Appellant, therefore, has not
met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens

12

See R.J., Docket No. 19-0179 (issued May 26, 2020); see also supra note 11.

13

L.V., Docket No. 19-1725 (issued April 5, 2021); Sandra D. Pruitt, 57 ECAB 126 (2005).

14

Id.

15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4 (February 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

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and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
Appellant has not established that OWCP erroneously applied or interpreted a specific
point of law, or advanced a relevant legal argument not previously considered by OWCP.
Consequently, he is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(3). 20
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted a March 2013 report diagnosing
tachycardia and an October 9, 2014 cardiology report. He also submitted a DVA rating decision
finding that he was 50 percent disabled due to sleep apnea and 30 percent disabled due to
supraventricular tachycardia. This evidence, however, is not relevant to the underlying issue of
whether appellant has established a recurrence of disability beginning March 5, 2020 causally
related to his accepted June 28, 2000 employment injury. The Board has held the submission of
evidence or argument, which does not address the particular issue involved does not constitute a
basis for reopening a case. 21
Appellant resubmitted a January 22, 2010 SSA decision, finding that he was disabled
beginning December 4, 2007 and reports from Dr. Fried dated January 12 and April 14, 2021. The
Board has held, however, that evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case for merit review. 22 Appellant has not
provided relevant and pertinent new evidence and, thus, is not entitled to a merit review based on
the third requirement under section 10.606(b)(3).23
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24

18

Id. at § 10.608(a); see also F.V., Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
20

Id. at § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

21

See P.G., Docket No. 20-1419 (issued September 16, 2021); C.C., Docket No. 20-0950 (issued October 29,
2020); Edward Matthew Diekemper, 31 ECAB 224 (1979).
22

See T.T., Docket No. 19-0559 (issued July 19, 2019); D.K., 59 ECAB 141 (2007); Eugene F. Butler, 36 ECAB
393 (1984).
23

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

24

T.G., Docket No. 20-0329 (issued October 19, 2020); C.C., Docket No. 17-0043 (issued June 15, 2018).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury. The Board further finds that OWCP properly denied his request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 5 and April 29, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 10-236
Issued: October 5, 2010

Case Submitted on the Record

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

JURISDICTION
On November 3, 2009 appellant, through counsel, filed a timely appeal from a
September 28, 2009 decision of the Office of Workers’ Compensation Programs affirming the
termination of her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective May 7, 2008; and (2) whether appellant had any residuals or disability after
May 7, 2008.
FACTUAL HISTORY
On December 9, 2005 appellant, then a 45-year-old carrier, injured her back when she
slipped and fell to her back while walking down a driveway. The Office accepted the claim for

lumbar sprain/strain, lumbosacral sprain and cervical sprain.1 Appellant stopped work following
the injury and was placed on the periodic rolls for temporary total disability.
In a June 8, 2006 duty status report (Form CA-17), Dr. Jordan S. Fersel, a treating Boardcertified anesthesiologist, stated that appellant was able to return to work with restrictions.
Appellant returned to limited-duty work on June 13, 2006.
On August 25, 2006 appellant filed a claim alleging a recurrence of disability beginning
June 14, 2006. In a December 7, 2006 letter, the Office informed her that her claim for a
recurrence of disability was being developed as a new claim.2 By decision dated January 16,
2007, the Office denied her claim.
The Office received additional medical records from Dr. Fersel pertaining to his
treatment of appellant. Dr. Fersel diagnosed degenerative cervical disc disease and lumbosacral
radiculitis.
On December 27, 2007 Dr. Melvin P. Vigman, a second opinion Board-certified
psychiatrist and neurologist, performed a physical examination of appellant at the request of the
Office. He reviewed the medical evidence, a statement of accepted facts and list of questions.
On physical examination there was normal upper extremity strength, a normal sensory
examination of both upper and lower extremities and intake 2+ reflexes. Dr. Vigman reported
that appellant complained of pain with straight leg motion, hip movement in any direction and
minor leg movements. A review of a January 20, 2006 magnetic resonance imaging (MRI) scan
of the lumbar spine revealed no nerve root compression or herniated disc or traumatic changes,
although there were some minor degenerative changes. Dr. Vigman noted an April 11, 2006
MRI scan of the cervical spine showed bulging discs at C4-5, C5-6 and C6-7, but no herniated
disc, nerve root compression or spinal root compression. He stated that the multiple cervical
bulging discs were consistent with typical degenerative changes and not of traumatic origin.
Dr. Vigman found that appellant had no neurological disease, but did have signs of symptom
elaboration and magnification. He determined that appellant’s symptoms were not supported by
objective evidence and that she had sustained a minor sprain as a result of the employment
injury. As appellant was found normal from a neurological standpoint, Dr. Vigman concluded
that she had no disability or residuals of the December 9, 2007 employment injury.
In a February 3, 2008 report, Dr. David Rubinfeld, a second opinion Board-certified
orthopedic surgeon, reviewed the medical evidence, statement of accepted facts and list of
questions. On physical examination he found normal muscle strength in the upper and lower
extremities with no spasm or tenderness on palpitation in the cervical or thoracolumbar spine.
Dr. Rubinfeld diagnosed cervical and lumbosacral sprains, by history. Based upon his physical
examination and review of the medical evidence, he concluded that appellant had no disability or
ongoing residuals from her accepted conditions. Dr. Rubinfeld stated that there was no objective
evidence to establish that appellant had residuals of the accepted cervical and lumbosacral
sprains.
1

The Office assigned claim number xxxxxx887.

2

The Office assigned claim number xxxxxx388.

2

On March 31, 2008 the Office proposed to terminate appellant’s compensation. It found
that the weight of the medical evidence was represented by the opinions of Dr. Vigman, a second
opinion Board-certified psychiatrist and neurologist, and Dr. Rubinfeld, a second opinion Boardcertified orthopedic surgeon. The opinions of these physicians established that appellant’s
accepted cervical and lumbosacral sprains had resolved and that she had no residual disability
due to her accepted employment injury. The Office allowed her 30 days to submit additional
evidence.
In a letter dated April 28, 2008, appellant’s counsel disagreed with the proposed
termination of compensation; however, no additional evidence was submitted.
By decision dated May 7, 2008, the Office terminated appellant’s compensation benefits
effective that day on the grounds that her accepted conditions had resolved.
On March 31, 2009 appellant, through new counsel, requested reconsideration. In a
March17, 2009 report, Dr. Fersel diagnosed lumbosacral radiculitis, cervical radiculitis, right S1
radiculitis, bilateral occipital neuritis and bilateral sacroiliac joint derangement, which he
attributed to the December 9, 2005 employment injury. He stated that appellant’s subjective
complaints were supported by the objective evidence. On physical examination Dr. Fersel listed
decreased bilateral leg extension and flexion, decreased right leg sensation, decreased cervical
range of motion and decreased lumbosacral range of motion. He noted that appellant had pain
complaints, limited mobility and required a cane for ambulation. Dr. Fersel found that she was
totally and permanently disabled from work.
By decision dated September 28, 2009, the Office denied modification of the May 7,
2008 decision terminating appellant’s compensation. It found Dr. Fersel’s March 17, 2009
report was insufficient to create a conflict in medical opinion as it was unrationalized.
LEGAL PRECEDENT -- ISSUE 1
Once the Office 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 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.4 The Office’s 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, the Office must
3

S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L.
Stewart, 54 ECAB 824 (2003).
4

I.J., 59 ECAB 524 (Docket No. 07-2362, issued March 11, 2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

3

establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar sprain/strain, lumbosacral sprain and
cervical sprain as a result of the December 9, 2005 work incident. It terminated appellant’s
compensation benefits effective May 7, 2008 on the grounds that the accepted conditions had
resolved with residuals. The Office accorded determinative weight to the opinions of
Drs. Vigman and Rubinfeld, the second opinion specialists.
In a December 27, 2007 report, Dr. Vigman, a second opinion Board-certified
psychiatrist and neurologist, reviewed appellant’s medical history, including diagnostic tests and
provided detailed findings on physical examination. Subjective findings included complaints of
pain during any hip movement, minor leg movements and straight leg raising. There were no
muscle spasms. A review of MRI scans of the lumbar and cervical spine revealed no nerve root
compression or herniated disc or traumatic changes. Dr. Vigman noted there was evidence of
minor degenerative changes in the lumbar spine and bulging discs at C4-5, C5-6 and C6-7.
Appellant’s neurological examination revealed no objective evidence of any neurological
condition. Dr. Vigman opined that, based on her normal neurological examination, appellant had
no disability or residuals as a result of her accepted December 9, 2005 employment injury.
Dr. Rubinfeld, a second opinion Board-certified orthopedic surgeon, reviewed appellant’s
medical history, including diagnostic tests and provided detailed findings on physical
examination. A physical examination revealed normal muscle strength in the upper and lower
extremities and no spasm or tenderness on palpitation in the cervical or thoracolumbar spine.
Based upon his physical examination and review of the medical evidence, Dr. Rubinfeld
concluded that appellant had no disability or residuals from her accepted employment injuries.
The reports of Drs. Vigman and Rubinfeld are based upon a complete and accurate
factual and medical background and detailed findings on physical examination. Dr. Vigman is a
Board-certified neurologist and psychiatrist and Dr. Rubinfeld is a Board-certified orthopedic
surgeon. The Board finds that both Dr. Vigman and Rubinfeld provided a thorough and wellrationalized report which established that appellant had no continuing disability or medical
condition causally related to her accepted lumbar sprain/strain, lumbosacral sprain and cervical
sprain. Accordingly, the Office met its burden of proof in terminating appellant’s wage-loss
compensation and medical benefits effective May 7, 2008 based on the medical opinions of
Dr. Vigman and Rubinfeld that the accepted lumbar sprain/strain, lumbosacral sprain and
cervical sprain conditions had resolved.

7

Kathryn E. Demarsh, supra note 6; James F. Weikel, 54 ECAB 660 (2003).

4

LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.8
ANALYSIS -- ISSUE 2
The Board finds that, following the proper termination of her compensation and medical
benefits on May 7, 2008, appellant failed to establish that she had any continuing disability or
medical condition causally related to her December 9, 2005 employment-related lumbar
sprain/strain, lumbosacral sprain and cervical sprain conditions. In support of her request for
reconsideration, appellant submitted a March 17, 2009 report from Dr. Fersel, who opined that
appellant was totally disabled due to her December 9, 2005 employment injury. Dr. Fersel
opined that as a result of this injury appellant sustained diagnosed lumbosacral radiculitis,
cervical radiculitis, right S1 radiculitis, bilateral occipital neuritis and bilateral sacroiliac joint
derangement conditions. The Board notes that the Office has not accepted the conditions of
lumbosacral radiculitis, cervical radiculitis, right S1 radiculitis, bilateral occipital neuritis and
bilateral sacroiliac joint derangement as employment related. For conditions not accepted by the
Office as being employment related, it is appellant’s burden to provide rationalized medical
evidence sufficient to establish causal relation.9 Dr. Fersel provided no rationale explaining how
appellant’s conditions were caused or related to her accepted December 9, 2005 employment
injury. The Board has held that a medical opinion not fortified by rationale is of diminished
probative value.10 Thus, Dr. Fersel’s report is insufficient to create a conflict with the reports of
Drs. Vigman and Rubinfeld. Thus, the Office properly found appellant failed to establish that
she had any continuing residuals or disability after May 7, 2008.
On appeal appellant’s counsel contends that the opinions of Drs. Vigman and Rubinfeld
are not entitled to greater weight than Dr. Fersel’s opinion and that there is an unresolved
conflict in the medical opinion evidence. As noted above, Dr. Fersel’s opinion is insufficient to
create a conflict with the opinions of Drs. Vigman and Rubinfeld. He provided no rationale
explaining how appellant’s disability was employment related. Moreover, as noted above the
Office has only accepted that appellant sustained lumbar sprain/strain, lumbosacral sprain and
cervical sprain. It has not accepted the conditions of diagnosed lumbosacral radiculitis, cervical
radiculitis, right S1 radiculitis, bilateral occipital neuritis and bilateral sacroiliac joint
derangement and thus appellant has the burden of proof to establish an employment
relationship,11 which she has not done. Dr. Fersel’s March 17, 2009 report contained no
rationale explaining his conclusions or the diagnoses contained therein and, as addressed above,
is insufficient to create a conflict in the medical opinion evidence.
8

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

9

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

10

F.T., 61 ECAB ___ (Docket No. 09-919, issued December 7, 2009); Cecilia M. Corley, 56 ECAB 662 (2005);
Willa M. Frazier, 55 ECAB 379 (2004).
11

See JaJa K. Asaramo, 55 ECAB 104 (2004).

5

CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation and medical benefits effective May 7, 2008. The Board further finds that
appellant did not meet her burden of proof to establish that she had any work-related disability or
medical condition after May 7, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2009 is affirmed.
Issued: October 5, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Neptune, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1867
Issued: April 5, 2013

Case Submitted on the Record

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

JURISDICTION
On September 13, 2012 appellant, through her attorney, filed a timely appeal from the
March 30, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss and
medical compensation benefits effective September 6, 2011; and (2) whether appellant has met
her burden of proof to establish a stress fracture and avascular necrosis (AVN) as a result of her
June 26, 2010 work injury. Counsel argues that the decision of March 30, 2012 was based on
flawed findings of facts and conclusions of law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 26, 2010 appellant, then a 43-year-old city carrier, injured her right foot when
she stepped down hard off stairs while delivering mail. She stopped work June 29, 2010 and did
not return. OWCP accepted a right metatarsophalangeal joint (MPJ) sprain and paid
compensation benefits. Appellant was previously out of work for three months due to a
nonwork-related right bunion and hammertoe surgery on the second digit. The employment
injury was sustained about two months after she returned to full-duty work.
On June 28, 2010 Dr. Alison DeWaters, a podiatrist, noted appellant’s January 20, 2010
surgery along with the history of injury. Examination findings were noted and an impression of
MPJ sprain and right edema was provided. Appellant was fitted with an ankle boot and held off
work. On July 12, 2012 Dr. DeWaters noted x-ray findings of nondisplaced stress fracture to the
second metatarsal neck.
On August 9, 2010 Dr. DeWaters noted that appellant reported that she had tripped over a
toolbox at home. A September 16, 2010 right foot magnetic resonance imaging (MRI) scan
revealed postsurgical changes in the first metatarsal bone with some bone marrow edema. There
also were marrow signal changes in the medial sesamoid bone with a differential including stress
reaction, infection or sesamoiditis. In the second metatarsal, a surgical screw or tack was present
from the previous surgery with either an advanced arthritis process at the joint space or AVN of
the metatarsal head. In the second proximal phalanx, there was bone marrow edema present with
either a healing fracture or osteotomy site. In her September 23, 2010 report, Dr. DeWater’s
reported that the stress fracture had healed but the MRI scan showed AVN to the second
metatarsal head. She requested a bone-healing device. OWCP authorized the bone healing
treatments.
On March 28, 2011 appellant underwent another MRI scan, which showed improvement
in the first metatarsal bone with some indication of a small area of bone infarction or AVN. In
the second metatarsal head, “some of the findings described previously are mildly improved but
there is still subtle cortical irregularity along the articular surface and an area of enhancing
marrow signal along the plantar surface of the second metatarsal head with a differential
including AVN or arthritis … no stress fractures are present.”
In an April 4, 2011 report, Dr. David Rubinfeld, a Board-certified orthopedic surgeon and
an OWCP referral physician, noted the history of injury, his review of the medical records and
statement of accepted facts and presented examination findings. He diagnosed status post
January 2010 bunionectomy and hammertoe corrective surgery. Dr. Rubinfeld stated that
appellant did not have residuals of the accepted condition of right MPJ sprain, noting the
examination was unremarkable with no objective findings. He further stated that no additional
conditions were found on examination and opined that she could work without restrictions or
disability. Dr. Rubinfeld found that appellant reached maximum medical improvement on
April 4, 2011.
On May 2, 2011 OWCP issued a notice of proposed termination of benefits based on
Dr. Rubinfeld’s second opinion evaluation. In a May 16, 2011 statement, appellant took issue
with Dr. Rubinfeld’s opinion. She requested another examination as the opinions of

2

Drs. DeWaters and Rubinfeld differed so greatly. In a May 10, 2011 letter, Dr. DeWaters noted
that the September 16, 2010 and March 28, 2011 MRI scans indicated AVN of the second
metatarsal, for which she recommended surgery. She stated that Dr. Rubinfeld failed to mention
the AVN in his report. In other progress reports, Dr. DeWaters continued to opine that appellant
had AVN of second MPJ of right side and neuroma.
OWCP determined a conflict in medical opinion existed between Dr. DeWaters and
Dr. Rubinfeld and referred appellant to Dr. Robert Dennis, a Board-certified orthopedic surgeon,
for an impartial opinion. In a July 25, 2011 report, Dr. Dennis noted his review of the medical
record, the statement of accepted facts and the history of injury. He noted appellant’s prior
nonwork-related right bunion and hammertoe of the second digit with surgery on January 20,
2010 and her tripping over a toolbox at home in August 2010. Dr. Dennis acknowledged her two
previous left foot claims for injuries that had resolved as well as a left foot fracture in June 2011.
Appellant was able to get up onto the examination table and did not walk with a definite limp
even though there was some acute left foot swelling consistent with a probable resolving hairline
fracture. Dr. Dennis noted evidence of slight hallux rigidus on the great toe, which was part of
the need for bunion surgery and stiffness of the second toe as a result of the fusion. Appellant
refused to tip-toe walk or stand on her toes or heels. Dr. Dennis noted bilateral flatfeet with
normal alignment of the heel and no plantar fasciitis. Right foot examination showed scarring
over surgical sites. There was very little, if any, motion of the MPJ of the second toe and no
swelling or indurations on either the second or great toe of the right foot. Appellant could bend
her toes fairly well except for the second toe which was stiff but straight. The ankles were
normal with some mild pes planus. Minimal tenderness was noted under the second metatarsal
of the right foot with no tenderness under the first metatarsal.
Dr. Dennis noted that the actual x-rays or MRI scan reports were not available except for
a compact disc (CD) of the March 28, 2011 MRI scan but the radiologist reports of the previous
scans were reviewed. The March 28, 2011 MRI scan showed artifact of two screws in the neck
of the first metatarsal and one screw in the neck of the second metatarsal. Dr. Dennis stated:
“[W]hat initially may have looked like [AVN] was not … the bony structures
were intact. What looked like possible metatarsalgia was not, as there was no
tenderness specifically under the metatarsal head. What looked like an
abnormality of the joint was actually artifact from the screw. There was no
fracture seen whatsoever on any of the metatarsals or toes. No bone scan was
available.”
He stated that there was no evidence of fracture or AVN. Dr. Dennis stated that there
was no need to proceed with any artificial joint installation of appellant’s right foot as it would
only make the situation worse. He stated that he was unimpressed with any evidence of a limp
and felt that she was able to resume the activities she was doing before her injury.
Dr. Dennis noted that the injury was well healed and there was no indication that
appellant was in any worse condition than she was on the day prior to the injury. He opined that
the bunion surgery was properly done and that the fused second toe may be somewhat
symptomatic, but it was not associated with a fracture or any disruption of the screw that was
inserted previously. Dr. Dennis opined that appellant’s continuing right foot problems were

3

sequelae of the elective surgery for the bunion and second toe. Even giving appellant the benefit
of doubt of a sensation deficit, he stated that the metatarsalgia and residuals of the preexisting
condition, along with the previous unrelated surgery, were the cause of appellant’s discomforts.
Dr. Dennis opined that those discomforts did not rise to the level of debilitation and did not
preclude her from returning to her prior job because she had returned to that job after surgery and
there was no substantial change caused by the injury. He diagnosed status post bunionectomy
and hammertoe correction surgery, January 2010; MPJ (resolved); alleged fracture second MPJ,
not confirmed by MRI scan that he saw or by history; AVN, second MPJ, not confirmed by
history or MRI scan that he saw; bilateral bunions; and bilateral pes planus. Dr. Dennis opined
that the accepted sprain had resolved with no residuals. He found no evidence of AVN or
fracture, noting the artifact from the screw from the elective postoperative surgery was the only
abnormality on MRI scan. Dr. Dennis opined that appellant had fully recovered from the work
injury, that she could return to full duty and no further treatment was needed. He stated that the
mild metatarsalgia which she may have was not due to her injury. Dr. Dennis stated that surgery
was not needed. He further stated that her diagnosed conditions would likely persist if she
returned to work as a letter carrier.
On August 5, 2011 OWCP proposed to terminate appellant’s compensation benefits
based on Dr. Dennis’ impartial opinion. In an August 26, 2011 statement, appellant disagreed
with OWCP’s proposed action, but submitted no new evidence. By decision dated September 8,
2011, OWCP finalized the termination effective September 6, 2011.
Appellant’s attorney requested a telephonic hearing before an OWCP hearing
representative, which was held January 5, 2012. Appellant testified as to her injury and course
of treatment. She stated that Dr. DeWaters’ diagnosis never changed and she had not returned to
her preinjury status. Appellant’s attorney argued the claim should be expanded to include a
resolved stress fracture and AVN. He noted that OWCP had authorized the bone-stimulator
treatment for the AVN but never accepted the condition. Appellant’s attorney stated that
Dr. Dennis may have missed the diagnosis of stress fracture as he did not have the x-ray films or
earlier MRI scans to review. He also argued that Dr. Dennis could not release appellant to work
full duty as a letter carrier as he stated that her problems would persist.
By decision dated March 30, 2012, an OWCP hearing representative affirmed the
termination decision. She also found no evidence to expand the claim to include a stress fracture
and AVN.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
2

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

3

Id.

4

of entitlement to compensation for disability.4 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.5 Once it has properly modified or terminated
benefits, the burden of reinstating benefits shifts to the employee.6
FECA provides that, if there is disagreement between an OWCP-designated examining
physician and the employee’s physician, OWCP shall appoint a third physician who shall make
an examination.7 For a conflict to arise the opposing physicians viewpoints must be of virtually
equal weight and rationale.8 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a right MPJ sprain and paid benefits including
authorizing bone-healing treatments. It determined that a conflict in medical opinion evidence
arose between the attending physician, Dr. DeWaters, and OWCP’s referral physician,
Dr. Rubinfeld, as to whether appellant had any continuing residuals or disability causally related
to her accepted June 26, 2010 employment injury. Dr. DeWaters’ opined that appellant had a
healed stress fracture but developed AVN to the second metatarsal head. Dr. Rubinfeld opined
that appellant’s work-related right MPJ sprain had resolved and she could return to work without
restrictions. He also found there were no additional conditions. Consequently, OWCP properly
referred her to Dr. Dennis to resolve the conflict.
In his report of July 25, 2011, Dr. Dennis provided a comprehensive review of
appellant’s history, including the fact that she had a nonwork-related right bunion and
hammertoe surgery of the second digit on January 20, 2010, that she tripped over a toolbox at
home in August 2010 and fractured her left foot in June 2011 and set forth extensive findings
from examination and review of available x-ray and MRI scan reports. He noted diagnoses and
opined that the accepted sprain had resolved with no residuals. Dr. Dennis found no evidence of
AVN or fracture, noting that the artifact from the screw from the elective postoperative surgery
was the only abnormality evidenced on MRI scan. He opined that appellant could return to full
duty and no further treatment was needed from the employment injury. Dr. Dennis indicated that
the mild metatarsalgia was not work related but sequelae of the elective surgery regarding the
bunion and second toe. He opined that the discomfort appellant had did not rise to the level of
4

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

5

Calvin S. Mays, 39 ECAB 993 (1988).

6

Joseph A. Brown, Jr., 55 ECAB 542, 544 n.5 (2004).

7

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

8

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

9

Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

debilitation or preclude her from returning to work as she had returned to her job after her
elective surgery and there had been no substantial change caused by the work-related injury.
The Board finds that Dr. Dennis had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. Dr. Dennis is a specialist in the appropriate field. He offered
no basis to support that appellant had residuals or work-related disability from the accepted
condition. Dr. Dennis’ opinion as set forth in his report of July 25, 2011 is found to be probative
evidence and reliable. While appellant’s attorney has contended that Dr. Dennis’ report was not
prepared under FECA procedures and that he was biased he offered no evidence to support his
allegations. The Board has held that an impartial specialist properly selected under OWCP’s
rotational procedures will be presumed unbiased and the party seeking disqualification bears the
substantial burden of proving otherwise; mere allegations are insufficient to establish bias.10 The
Board finds that, under the circumstances of this case, the opinion of Dr. Dennis is sufficiently
well rationalized and based upon a proper factual background such that it is entitled to special
weight and establishes that appellant’s work-related conditions had ceased.
As the weight of the medical evidence establishes that appellant’s June 26, 2010
employment injury has resolved, OWCP properly terminated her wage-loss compensation and
medical benefits.11
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.12 To establish a causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a casual relationship.13 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.14
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the diagnosed condition
and the specific employment factors identified by the claimant.15 Neither, the mere fact that a
disease or condition manifests itself during a period of employment nor the belief that the disease

10

Geraldine Foster, 54 ECAB 435 (2003); William Fidurski, 54 ECAB 146 (2002).

11

After termination or modification of compensation benefits, clearly warranted on the basis of the evidence, the
burden for reinstating compensation benefits shifts to appellant. Supra note 6.
12

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

13

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

14

See D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

15

See Phillip L. Barnes, 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

6

or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.16
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to claimant’s own intentional misconduct.17 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.18
ANALYSIS -- ISSUE 2
Appellant has argued that the claim should have been expanded to include a stress
fracture and the AVN. For conditions not accepted by OWCP as employment related, she has
the burden of proof to establish causal relationship.19 An OWCP’s hearing representative found
that the evidence of record did not support an expansion of the claim and the Board agrees.
Dr. Dennis found that neither the stress fracture nor the AVN condition was firmly diagnosed.
The September 16, 2010 MRI scan report showed a surgical screw or tack present in the second
metatarsal with either an advanced arthritis process at the joint space or AVN of the metatarsal
head. The March 28, 2011 MRI scan on CD showed no stress fractures present and in the area of
the second metatarsal head there was either arthritis or AVN, which had not progressed since the
prior study. While Dr. DeWaters diagnosed both a stress fracture and the AVN, Dr. Dennis
interpreted the results from the x-ray and MRI scan reports as well as his review of the
March 28, 2011 MRI scan on CD as hardware from appellant’s prior surgery. Appellant’s
attorney has argued that Dr. Dennis’ conclusions lacked probative value as he did not have the
actual x-ray or MRI scan films to review. The hearing representative noted that actual films are
not required when reports of the studies are provided, as was the case here. As Dr. Dennis did
not question any of the reports pertaining to the objective tests, the evidence fails to support
appellant’s contention of error on the part of OWCP. Thus the evidence of record does not
support the expansion of the claim to include a stress fracture and the AVN. The fact that the
bone-stimulator treatment was authorized by OWCP does not establish that OWCP accepted
either of those conditions.
While appellant’s counsel argues the decision is contrary to fact and law, the medical
evidence fails to support any residuals or disability due to the accepted condition.
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.

16

See V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

17

Mary Poller, 55 ECAB 483, 487 (2004).

18

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

19

See supra note 12.

7

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective September 6, 2011 on the grounds that she no longer had any residuals or
disability causally related to her accepted employment-related injury. Appellant also has not
established that she sustained a work-related stress fracture and AVN as a result of the work
injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 30, 2012 is affirmed.
Issued: April 5, 2013
Washington, DC

Richard J. Daschbach, 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
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lancaster, CA, Employer
__________________________________________

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

Docket No. 15-1727
Issued: December 2, 2015

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 August 17, 2015 appellant filed a timely application for review from a June 9, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because more
than 180 days elapsed from January 20, 2015, the date of the most recent merit decision of
OWCP, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 24, 2013 appellant, then a 42-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed pain in the left foot as a result of walking
her route. She became aware of her condition and of its relationship to her employment on
June 7, 2013.
Appellant submitted a July 11, 2013 report from Dr. Donna Asimont, a Board-certified
family physician. The report contained a diagnosis of “traumatic injury of [left] foot.”
Appellant also submitted a narrative statement dated August 3, 2013.
By letter dated July 29, 2013, OWCP advised appellant of the evidence needed to
establish her claim. It afforded her 30 days to submit additional evidence.
By decision dated August 30, 2013, OWCP denied appellant’s claim. It noted that she
had not submitted medical evidence including a diagnosis from a qualified physician.
On June 19, 2014 appellant requested reconsideration of her claim. She included a report
from Dr. Asimont dated September 13, 2013, which included a diagnosis of accessory left tarsal
navicular bone exostosis.
By decision dated September 22, 2014, OWCP evaluated the merits of appellant’s claim
and affirmed its August 30, 2013 decision, but with modification. It found that she had
submitted sufficient evidence to demonstrate that she had been diagnosed with a medical
condition, but had not submitted sufficient evidence to establish a causal relationship between
this condition and factors of her federal employment.
Appellant again requested reconsideration by form dated October 6, 2014. With her
request, she submitted an October 22, 2014 report from Dr. Vikas Jindal, Board-certified in
occupational medicine. In the report, Dr. Jindal stated: “I strongly feel that this employee had
this mild bone growth for a long time[….] I cannot establish the exact origin date but this had
definitely been aggravated by excessive and prolonged walking during work as mail carrier[….]
Hopefully you will consider my causation statement appropriate for approval of this case.”
By decision dated January 20, 2015, OWCP evaluated the merits of appellant’s claim, but
found that Dr. Vikas’ report was not sufficient to establish appellant’s claim as it was expressed
equivocally and his opinion was not one of reasonable medical certainty.
On May 17, 2015 appellant requested reconsideration for the third time. On the form
requesting the appeal, she wrote, “I am requesting reconsideration in hopes that in Dr. Jindal’s
report he has completely satisfied the basic five elements that my previous report lacked.”
Appellant did not submit any additional evidence.
By decision dated June 9, 2015, OWCP denied appellant’s request for reconsideration
without reviewing the merits of her claim, noting that she had not submitted any additional
evidence in support of her request.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
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.2 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.3
ANALYSIS
OWCP issued a January 20, 2015 decision finding that appellant had not established an
occupational disease related to factors of her federal employment. This decision found that
Dr. Jindal’s October 22, 2014 report was not sufficient to establish that duties of appellant’s
federal employment caused or aggravated her diagnosed condition. On May 17, 2015 appellant
requested reconsideration of this decision. With her request, she submitted no additional
evidence, and wrote “I am requesting reconsideration in hopes that in Dr. Jindal’s report he has
completely satisfied the basic five elements that my previous report lacked,” on the
reconsideration request form.
As noted above, the Board does not have jurisdiction over the merits of the January 20,
2015 decision. The issue presented on appeal is whether appellant met any of the requirements
of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her
claim. In her May 17, 2015 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. The argument contained in the note written on the request
form regarding Dr. Jindal’s report was previously considered in OWCP’s January 20, 2015
decision. Thus, she is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under section 10.606(b)(3).
Appellant did not submit any new or relevant evidence in this claim upon requesting
reconsideration. Thus, she is not entitled to a review of the merits of her claim based on the third
requirement under section 10.606(b)(3).
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

2

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 9, 2015 is affirmed.
Issued: December 2, 2015
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL TRANSFER CENTER,
Oklahoma, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-430
Issued: July 27, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On December 19, 2011 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated June 23, 2011, which denied his
reconsideration request on the grounds that he neither raised substantive legal questions nor
submitted new and relevant evidence to warrant merit review.1
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following a June 17, 2010
decision, that denied his claim for compensation due to insufficient factual and medical
evidence, appellant requested reconsideration on January 12, 2011. He also submitted additional
evidence. This included a report dated September 7, 2010 from Dr. John W. Ellis, a family
practitioner, who opined that appellant’s work duties including lifting and working with inmates
1

On April 19, 2010 appellant filed a notice of occupational disease alleging that he developed bilateral shoulder
conditions as a result of performing his duties as an inmate systems officer and self-defense instructor which
included subduing inmates.
2

41 ECAB 548 (1990).

during altercations caused multiple tears of the bilateral shoulders resulting in tears, arthritis,
tendinitis and degeneration. This was received by OWCP on October 4, 2010 and also
resubmitted thereafter. In its June 23, 2011 decision, OWCP denied appellant’s reconsideration
request on the grounds that he neither raised substantive legal questions nor submitted new and
relevant evidence to warrant merit review. It did not note receipt or consideration of the
September 7, 2010 report from Dr. Ellis.
The Board finds that OWCP, in its June 23, 2011 decision, did not review the
September 7, 2010 report from Dr. Ellis that was received by OWCP on October 4, 2010. For
this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence
submitted at the time of the June 23, 2011 decision. Following such further development as
OWCP deems necessary, it shall issue an appropriate merit decision on the claim.
IT IS HEREBY ORDERED THAT the June 23, 2011 decision of the Office of
Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: July 27, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WARNER ROBINS AIR FORCE BASE,
Warner Robins, GA, Employer
__________________________________________

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

Docket No. 09-524
Issued: October 8, 2009

Case Submitted on the Record

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

JURISDICTION
On December 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 16, 2008 merit decision denying his claim for compensation and a
September 8, 2008 nonmerit decision denying reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained an injury in the
performance of duty on May 30, 2008 as alleged; and (2) whether the Office properly refused to
reopen his case for further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 30, 2008 appellant, then a 68-year-old clerk, filed a Form CA-1, traumatic injury
claim, alleging that on May 30, 2008 he experienced burning pain from the wrists to his hands
and elbows on both upper extremities. He stated that he was unable to use his upper extremities

because of the pain. On the claim form, the employing establishment controverted the claim on
the basis that “employee was not working at this base when this happened” and “employee did
not explain in sufficient detail cause of injury.” There is no indication that appellant stopped
work. No evidence was provided with the claim form.
In a letter dated June 12, 2008, the Office advised appellant of the factual and medical
evidence needed to establish his claim and allowed 30 days for the submission of evidence. It
asked that appellant provide a detailed description as to how his injury occurred and that he have
his attending physician submit a detailed, narrative medical report that included a history of
injury, a firm diagnosis and an explanation regarding how the condition diagnosed was believed
to have been caused or aggravated by the May 30, 2008 incident. The Office additionally
requested, in a letter dated June 12, 2008, that the employing establishment clarify their
controversion of the claim and provide additional information regarding the circumstances of the
alleged injury on May 30, 2008. No additional information was received.
By decision dated July 16, 2008, the Office denied appellant’s claim on the grounds that
fact of injury was not established. It found that appellant did not submit clarifying factual
information to support that the May 30, 2008 work event occurred as alleged and that no medical
evidence was submitted which provided a diagnosis related to the claimed injury.
On August 18, 2008 appellant requested reconsideration. In a July 16, 2008 letter,
appellant indicated that the date of injury was incorrectly entered by his supervisor. He stated
that his original date of injury was January 1, 1991 while he was employed at McClellan Air
Force Base, California, in the aircraft corrosion and paint shop. Appellant noted that after his
first surgery for carpal tunnel syndrome, he had a second opinion evaluation. Appellant
resubmitted a copy of his May 30, 2008 CA-1 form.
By decision dated September 6, 2008, the Office denied appellant’s request for
reconsideration of the merits as he had not submitted any new evidence or argument with his
request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim was
filed within the applicable time limitation, that an injury was sustained while in the performance
of duty and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
Section 10.5(ee) of Office 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

1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

2

shift.3 To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. 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. The employee must also
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.4
ANALYSIS -- ISSUE 1
The Board finds that the evidence is insufficient to establish that appellant sustained an
injury to his wrists on May 30, 2008 while in the performance of duty.
The only evidence submitted, the Form CA-1, discusses only that appellant felt pain in
his wrists which radiated to other areas in his arms. There is no mention or discussion of what
work factor(s) appellant believed caused the alleged injury to his wrists. Appellant also did not
identify a particular medical condition alleged to have been caused by his employment.
Additionally, the employing establishment challenged the claim on the grounds that appellant
was not working at that base when the injury happened. In a June 12, 2008 letter, the Office
advised appellant of the evidence needed to establish his claim and provided the opportunity to
provide the necessary evidence, but he did not timely respond to the Office’s request for
additional information. While an employee’s statement alleging that an incident or exposure
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence, appellant has not provided a comprehensive statement
identifying what incidents of employment on May 30, 2008 gave rise to the claimed injury.5
Because the record is devoid of the necessary factual evidence surrounding the alleged May 30,
2008 injury, appellant has not met his burden of proof to establish that a particular incident
occurred on that date as alleged. Furthermore, appellant did not submit any medical evidence
addressing how any particular May 30, 2008 employment incident caused or aggravated a
diagnosed medical condition.
For these reasons, appellant did not meet his burden of proof to establish his claim.
LEGAL PRECEDENT -- ISSUE 2
The Act6 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.7 The employee shall exercise
3

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

4

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

5

B.B., 59 ECAB ___ (Docket No. 07-1402, issued December 6, 2007).

6

5 U.S.C. § 8101 et seq.

7

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

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this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.8
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.9
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.10 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.11
ANALYSIS -- ISSUE 2
Appellant’s August 18, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by the Office. His resubmission of his CA-1 form, which had been previously
received and reviewed by the Office is cumulative and duplicative in nature. Therefore, the
Office properly determined that this evidence did not constitute a basis for reopening the case for
a merit review.12 Appellant mentioned that his original date of injury was January 1, 1991 while
he was employed at McClellan Air Force Base, California. This information, while new, is not
relevant to the issue of whether appellant sustained an injury in the performance of duty on
May 30, 2008. Appellant did not otherwise provide any clarifying evidence relevant to the
underlying reason his claim was denied, his failure to sufficiently describe how particular
employment factors caused his claimed injury on May 30, 2008.
8

20 C.F.R. § 10.605.

9

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

10

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

11

20 C.F.R. § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

12

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

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The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his August 18, 2008 request for reconsideration.13
ORDER
IT IS HEREBY ORDERED THAT the September 8 and July 16, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 8, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

The record contains evidence received after the Office issued the September 8, 2008 decision and appellant also
submitted new evidence with his appeal. The Board may not consider evidence that was not before the Office at the
time it rendered its final decision. 20 C.F.R. § 501.2(c). Appellant may submit such evidence to the Office with a
request for reconsideration under 5 U.S.C. § 8128.

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