United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Minot, ND, Employer
__________________________________________

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

Docket No. 17-1947
Issued: December 19, 2018

Case Submitted on the Record

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

JURISDICTION
On September 18, 2017 appellant filed a timely appeal from a July 28, 2017 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 his burden of proof to establish more than 23 percent
permanent impairment of his right upper extremity, for which he previously received a schedule
award.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 28, 2017 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 evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On December 15, 2005 appellant, then a 55-year-old safety and occupational health
manager, filed a traumatic injury claim (Form CA-1) alleging that he sustained a right upper
extremity injury that day as a result of falling on ice in a parking lot. By decision dated
December 28, 2006, OWCP accepted the claim for right shoulder partial rotator cuff tear with
impingement syndrome. It further authorized a right shoulder surgery which appellant underwent
on February 13, 2007.
On April 30, 2008 appellant filed a claim for a schedule award (Form CA-7). OWCP
initially denied his claim for a schedule award on July 29, 2008 because the medical evidence then
of record was insufficient to establish permanent impairment of a scheduled member or function
of the body. On August 25, 2008 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review. By decision dated October 24, 2008,
an OWCP hearing representative remanded the case for further development. OWCP subsequently
accepted the claim for right shoulder post-traumatic osteoarthritis and granted appellant a schedule
award for 23 percent permanent impairment of his right upper extremity. The award ran for 71.76
weeks for the period February 20, 2009 to July 7, 2010.
In a May 5, 2016 report, Dr. E. Dexter Scott, a Board-certified orthopedic surgeon, noted
that appellant had ongoing problems with his right shoulder. He reported that in 2008 he had
opined that appellant had 25 percent permanent impairment of the right upper extremity and 15
percent whole person permanent disability or impairment. Dr. Scott found that, with the
progressive osteoarthritis there had been an increase to the point where, in his opinion, appellant
had 20 percent whole person permanent impairment and 35 percent impairment of the right upper
extremity.
On June 1, 2016 appellant filed a claim for an increased schedule award (Form CA-7).
In a June 13, 2016 development letter, OWCP advised appellant of the deficiencies of his
claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant subsequently submitted a July 12, 2016 report from Dr. Scott who diagnosed
post-traumatic osteoarthritis of the right shoulder glenohumeral and acromioclavicular joint with
chronic right shoulder rotator cuff tear and degeneration and weakness. Dr. Scott opined that
appellant had 22 percent permanent impairment of the right upper extremity due to lack of full
strength on flexion, abduction, and external rotation and lack of full mobility. He found that
appellant had pain and tenderness on overhead movements and lacked 30 percent flexion and
abduction of range of motion (ROM) and lacked 30 to 40 percent strength on flexion, abduction,
and internal and external rotation of the right shoulder. Dr. Scott concluded that this converted to
four to five percent full body disability based on the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
The case record was referred to Dr. Michael M. Katz, a Board-certified orthopedic surgeon
and an OWCP district medical adviser (DMA). On October 1, 2016 Dr. Katz reviewed the medical
3

A.M.A., Guides (6th ed. 2009).

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evidence of record and recommended that Dr. Scott be contacted and asked to submit a
supplemental report calculating appellant’s impairment in a detailed fashion, specifically
documenting recorded motion measurements.
In a November 18, 2016 supplemental report, Dr. Scott noted that appellant had moderate
lack of ROM of his right shoulder by 35 percent compared to normal, loss of flexion of 25 degrees,
loss of extension by 10 to 12 degrees, loss of abduction by 25 degrees, loss of adduction by 20
degrees, loss of internal rotation by 20 degrees, and loss of external rotation by 40 degrees
compared to the left shoulder. He calculated that this totaled 23 percent right upper extremity
permanent impairment and 13 percent whole person impairment, based on appellant’s class 2
diagnosis under Table 15-34 of the A.M.A., Guides.
On December 1, 2016 Dr. Katz determined that appellant had reached maximum medical
improvement (MMI) on October 28, 2016, the date of Dr. Scott’s last examination. He also found
that Dr. Scott correctly referenced Table 15-34 of the A.M.A., Guides, but noted that it was unclear
as to how he calculated 23 percent permanent impairment of the right upper extremity solely on
the motion observed. Dr. Katz explained that, while Dr. Scott referenced a loss of strength,
weakness was not ratable in conjunction with motion loss per the methodology of the sixth edition
of the A.M.A., Guides and, therefore, his impairment for weakness was not acceptable. He
explained that, while Table 15-34 was based on measured motion present, not loss of motion, it
was his opinion that it was possible to perform a conversion to the preferred format using
Dr. Scott’s measurements from his physical examination. Dr. Katz noted that rounding would be
performed based on motion lost, rather than on motion remaining. He noted Dr. Scott’s
measurements for loss of motion and calculated that the grade modifier resulting from ROM was
2. Dr. Katz determined that appellant had 14 percent permanent impairment of the right upper
extremity, which was less than the prior schedule award of 23 percent, so there was no net
additional award now due for the right upper extremity.
In a December 14, 2016 letter, OWCP advised appellant that it had found a conflict in the
medical opinion evidence between his attending physician, Dr. Scott, and its DMA, Dr. Katz,
regarding the issue of permanent impairment. It referred him to Dr. Michael Righetti, a Boardcertified orthopedic surgeon, for an independent medical examination to resolve the conflict.
In his February 3, 2017 report, Dr. Righetti found that appellant’s ROM included flexion
to 45 degrees, extension to 30 degrees, external rotation and internal rotation approximately a total
of 30 degrees, with 0 degrees external rotation, 30 degrees internal rotation, abduction to 90
degrees, and adduction to 40 degrees. He explained that, according to Table 15-34, appellant had
impairment due to lack of flexion of 9 percent, lack of extension 1 percent, lack of internal and
external rotation 9 percent, and lack of abduction 3 percent, totaling 22 percent permanent
impairment of the right upper extremity. Dr. Righetti noted that his observed ROMs were different
than Dr. Katz’ observed findings which he determined from Dr. Scott’s statements. He concluded
that appellant’s ROM resulted in permanent impairment less than the 23 percent permanent
impairment of the right upper extremity previously awarded and therefore no further award for
impairment was appropriate.
The case record was referred to Dr. Morley Slutsky, a Board-certified occupational
medicine specialist and an OWCP DMA. On February 25, 2017 Dr. Slutsky reviewed the medical
evidence of record and found that Dr. Righetti rated appellant’s right shoulder using ROM
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measurements and documented only one motion per joint movement. He indicated that this was
not consistent with the validity criteria in section 15.7, page 464, of the A.M.A., Guides for
measuring ROM and, as such, the ROM measurements were invalid for impairment calculations.
Dr. Slutsky requested that OWCP ask Dr. Righetti if he performed three measurements for each
shoulder motion, what those measurements were, and to show that they met the criteria under the
A.M.A., Guides. He explained that, if only one active ROM measurement was taken, then
Dr. Righetti would have to recalculate the impairment using the diagnosis-based impairment (DBI)
method as opposed to the ROM method.
In an April 2, 2017 addendum report, Dr. Righetti noted that appellant’s ROM was tested
three times and the mean of those ranges were dictated. Each measurement was not provided in
the dictation and each measurement was within 10 degrees of adjacent measurements. Mean ROM
of appellant’s right shoulder was flexion to 45 degrees compared to 150 degrees on the
contralateral side, extension to 30 degrees compared to 40 degrees on the contralateral side,
external rotation to 0 degrees on the involved side and 40 degrees on the uninvolved side, internal
rotation to 30 degrees on the involved side and 90 degrees on the uninvolved side, abduction to 90
degrees on the involved side and adduction to 40 degrees on the involved side, and abduction to
150 degrees on the uninvolved side and adduction to 40 degrees on the uninvolved side.
Dr. Righetti explained that the DBI method was not utilized because appellant did not have full
ROM which he understood was required for using the DBI method.
On May 24, 2017 Dr. Slutsky found that Dr. Righetti used the average ROM value for each
shoulder motion for final impairment calculations and failed to list three measurements for each
shoulder motion. He indicated that FECA Bulletin 17-064 required that the greatest ROM value
from each of the three measurements per motion was to be used for final impairment calculations,
in accordance with the A.M.A., Guides. Dr. Slutsky requested that OWCP ask Dr. Righetti to
document the greatest ROM value from each of the three measurements for each other shoulder
and recalculate his impairment rating.
In a June 8, 2017 report, Dr. Righetti provided the following figures as the greatest ROM
measurements recorded: flexion 50 degrees, extension 40 degrees, internal rotation 35 degrees,
external rotation 5 degrees, abduction 95 degrees, and adduction 40 degrees. He reiterated that,
according to Table 15-34, appellant had 9 percent impairment for flexion, 1 percent impairment
for extension, 2 percent impairment for internal rotation; 5 percent impairment for external
rotation, 3 percent impairment for abduction, and 0 percent impairment for adduction, totaling 20
percent permanent impairment of the right upper extremity and 12 percent whole person
impairment.
On July 6, 2017 Dr. Slutsky determined that appellant had 19 percent permanent
impairment of the right upper extremity based upon Dr. Righetti’s valid ROM measurements. He
concurred with Dr. Righetti’s calculations, but rounded the odd numbers up to 10 degrees to the
nearest number ending in zero. Utilizing Table 15-34, page 475, Dr. Slutsky calculated that
appellant had 9 percent impairment for 50 degrees flexion, 1 percent impairment for 40 degrees
extension, 3 percent impairment for 100 degrees abduction, and 0 percent impairment for 40
degrees adduction, 4 percent impairment for 40 degrees internal rotation; and 2 percent impairment
4

FECA Bulletin No. 17-06 (issued May 8, 2017).

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for 10 degrees external rotation, totaling 19 percent permanent impairment of the right upper
extremity. He determined that appellant’s date of MMI was February 3, 2017, the date of
Dr. Righetti’s impairment examination. Dr. Slutsky concluded that appellant’s impairment rating
was less than the 23 percent permanent impairment of the right upper extremity previously
awarded and no further schedule award was appropriate.
Appellant submitted a June 9, 2017 report from Dr. Scott who advised that appellant had
long-standing rotator cuff tendinitis and a previous rotator cuff rupture and repair with posttraumatic osteoarthritis.
By decision dated July 28, 2017, OWCP denied appellant’s claim for an additional
schedule award because the medical evidence of record was insufficient to establish four percent
permanent impairment greater than that previously awarded.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members
of the body. FECA, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of OWCP. For consistent results and to ensure equal justice, the Board
has authorized the use of a single set of tables so that there may be uniform standards applicable
to all claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.7 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in
2009.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX) condition, which is then adjusted by grade modifiers based on functional history
(GMFH), physical examination (GMPE), and clinical studies (GMCS).10 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are directed to provide

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

8

See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

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reasons for their impairment rating choices, including the choices of diagnoses from regional grids
and calculations of modifier scores.11
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the A.M.A., Guides caution that if it is clear to the evaluator evaluating loss of
ROM that a restricted ROM has an organic basis, three independent measurements
should be obtained and the greatest ROM should be used for the determination of
impairment, the claims examiner (CE) should provide this information (via the
updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the A.M.A., Guides
identify a diagnosis that can alternatively be rated by ROM. If the A.M.A., Guides
allow for the use of both the DBI and ROM methods to calculate an impairment
rating for the diagnosis in question, the method producing the higher rating should
be used.” (Emphasis in the original).12
The Bulletin further advises:
If the rating physician provided an assessment using the ROM method and the
A.M.A., Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 23
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.
OWCP accepted that appellant sustained a right shoulder partial rotator cuff tear with
impingement syndrome and right shoulder post-traumatic osteoarthritis at work on
December 15, 2005. It also authorized a February 13, 2007 right shoulder surgery and granted
appellant a schedule award for 23 percent permanent impairment of the right upper extremity.
OWCP is appellant’s burden to submit sufficient evidence to establish the extent of permanent
impairment.14

11

See R.V., Docket No. 10-1827 (issued April 1, 2011).

12

Supra note 4.

13

Id.

14

See Annette M. Dent, 44 ECAB 403 (1993).

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On December 14, 2016 OWCP advised appellant that it had found a conflict in the medical
opinion evidence between his attending physician, Dr. Scott who opined that appellant had 23
percent permanent impairment of the right upper extremity, and its DMA Dr. Katz, who opined
that appellant had 14 percent permanent impairment of the right upper extremity. It referred him
to Dr. Righetti for an independent medical examination to resolve the conflict. In his June 8, 2017
report, Dr. Righetti provided the following figures as the greatest ROM measurements recorded:
flexion 50 degrees, extension 40 degrees, internal rotation 35 degrees, external rotation 5 degrees,
abduction 95 degrees, and adduction 40 degrees. He opined that, according to Table 15-34,
appellant had 9 percent impairment for flexion, 1 percent impairment for extension, 2 percent
impairment for internal rotation; 5 percent impairment for external rotation, 3 percent impairment
for abduction, and 0 percent impairment for adduction, totaling 20 percent permanent impairment
of the right upper extremity.
In accordance with its procedures, OWCP properly referred the evidence of record to
Dr. Slutsky, an OWCP medical adviser, who reviewed the clinical findings of Dr. Righetti on
July 6, 2017 and determined that appellant had 19 percent permanent impairment of the right upper
extremity based upon Dr. Righetti’s valid ROM measurements under the sixth edition of the
A.M.A., Guides. Dr. Slutsky found that appellant had reached MMI as of February 3, 2017, the
date of Dr. Righetti’s initial impairment examination. Dr. Righetti explained that the DBI method
was not utilized because appellant did not have full ROM, which he understood was required for
using the DBI method. OWCP’s medical adviser concurred with Dr. Righetti’s diagnosis and
methodology, but disagreed with Dr. Righetti’s 20 percent impairment rating because he failed to
round the odd-numbered measurements up 10 degrees to the nearest number ending in zero.
Utilizing Table 15-34, page 475, of the A.M.A., Guides, Dr. Slutsky rounded up Dr. Righetti’s
ROM measurements and calculated that appellant had 9 percent impairment for 50 degrees flexion,
1 percent impairment for 40 degrees extension, 3 percent impairment for 100 degrees abduction,
and 0 percent impairment for 40 degrees adduction, 4 percent impairment for 40 degrees internal
rotation; and 2 percent impairment for 10 degrees external rotation, totaling 19 percent permanent
impairment of the right upper extremity. He concluded that appellant’s impairment rating was less
than the 23 percent previously awarded and, therefore, no further schedule award was appropriate.
OWCP’s medical adviser discussed how he arrived at his conclusion by listing specific
tables and pages in the A.M.A., Guides. Dr. Slutsky properly interpreted the sixth edition of the
A.M.A., Guides to find that appellant had 19 percent permanent impairment of the right upper
extremity. The Board finds that OWCP’s medical adviser in this case properly applied the
standards of the A.M.A., Guides. His opinion is the weight of medical evidence and supports that
appellant does not have a greater right upper extremity impairment than the 23 percent previously
awarded. Thus, the Board finds that OWCP properly relied upon the opinion of its medical adviser
in denying appellant’s claim for an additional schedule award.
The Board finds that there is no current medical evidence of record, in conformance with
the sixth edition of the A.M.A., Guides, establishing that appellant has more than 23 percent
permanent impairment of the right upper extremity. Accordingly, appellant has not established
that he is entitled to a schedule award greater than that previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 23
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 19, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, PLAINVILLE POST
OFFICE, Plainville, CT, Employer
__________________________________________

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

Docket No. 20-0315
Issued: October 8, 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 November 23, 2019 appellant filed a timely appeal from an October 17, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
has elapsed from OWCP’s last merit decision, dated August 16, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this claim.

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral a rgument request, she asserted that oral argument should be granted because she wished to
clarify any issues that may not have been thoroughly reviewed or considered. The Board, in exercising its discretion,
denies appellant’s request for oral argument because the arguments on appeal can adequately be addressed in a
decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board
decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on
the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 15, 2017 appellant, then a 40-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 13, 2017 she sustained a back contusion when she
lost her balance while bending over to grab a parcel and fell off the dock while in the performance
of duty. She was pregnant at the time of her injury. Appellant stopped work on the date of injury.
In a note dated November 15, 2017, Dr. Stephanie Garozzo, an obstetrics and gynecology
specialist, related that appellant would be out of work as of November 14, 2017 and would be
reevaluated on November 22, 2017. On November 22, 2017 she extended appellant’s out-of-work
status until further notice due to secondary pregnancy complications.
In a development letter dated December 6, 2017, OWCP informed appellant of the
deficiencies of her claim. It provided her with a questionnaire, advised her of the type of factual
and medical evidence necessary to establish her claim, and afforded her 30 days to submit the
necessary evidence.
In a letter dated December 7, 2017, Dr. Garozzo explained that appellant was currently
under her care and that she was pregnant with an expected delivery date of January 23, 2018. She
noted that appellant was recently injured by falling from a dock and complained of back pain with
numbness and tingling in her fingers and hands. Dr. Garozzo noted that she had ordered a
magnetic resonance imaging (MRI) scan to determine any damage and to assess the cause of these
symptoms. In an attached duty status report (Form CA-17), she diagnosed back pain complicating
pregnancy and advised that appellant was not to resume work.
In a letter dated December 7, 2017, Dr. Garozzo explained that appellant was referred to
her primary care provider for treatment of her work-related back injury, but that the provider
refused treatment due to her pregnancy. She noted that appellant was taken out of work due to
injury and not being able to walk with a secondary diagnosis of pregnancy. Dr. Garozzo noted
that appellant was also not able to return to work due to the additional diagnosis of high blood
pressure complicating pregnancy.
On December 19, 2017 appellant responded to OWCP’s development letter. She explained
that on the date of injury she stood on a dock loading her truck with parcels. One of the parcels
fell to the right of the hamper and appellant stepped to the right due to another carrier’s hamper
standing to the left of hers, obstructing her ability to reach the parcel without stepping o ver. Once
she stepped over, she bent down to retrieve the package and to hand it to a coworker who was
assigned to help with her deliveries for that day. As appellant proceeded to lift the package, which
weighed approximately three pounds, she fell backwards from the dock, which was approximately
two and one half feet in height. She landed on her back. Appellant immediately went to the
hospital.

2

In a letter dated December 11, 2017, a nurse from the employing establishment’s
occupational health services asked Dr. Garozzo if appellant were not pregnant would her back
injury be disabling. She also inquired whether appellant’s inability to walk was due to her back
injury or pregnancy. In a response, the reply was “Yes” that appellant would be disabled due to
her back injury if she was not pregnant and that appellant’s inability to walk was due to her “Back
Injury.”
In an attending physician’s report (Form CA-20) dated January 5, 2018, Dr. Garozzo
diagnosed lumbar spondylosis and back pain complicating pregnancy. She checked a box marked
“Yes,” indicating her belief that the conditions were caused or aggravated by an injury involving
appellant’s fall on her back from a dock on November 13, 2017. Dr. Garozzo recommended that
appellant was able to resume regular work on February 15, 2018.
By decision dated January 16, 2018, OWCP accepted that the November 13, 2017 incident
occurred as alleged. However, it denied appellant’s traumatic injury claim, finding that she had
not submitted evidence containing a medical diagnosis in connection with the accepted
employment incident. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
The nurse from the employing establishment’s occupational health services noted in a
January 9, 2018 letter that appellant was now treating with her primary care provider for the back
injury and that she was to remain out of work until February 14, 2018 due to the birth of her child.
On February 26, 2018 appellant requested reconsideration. She submitted a report from
Dr. Farhan Karim, an orthopedic surgery specialist, dated February 8, 2018. Dr. Karim evaluated
appellant for cervical spine pain radiating to the right shoulder, elbow, and thoracic region, as well
as paraspinal and hip discomfort and low back pain without radiation to the bilateral lower
extremities in a radicular fashion. He noted that she fell off a dock in November 2017 while
working as a mail carrier and that at that time she was 28 weeks’ pregnant. Appellant’s pain began
after this fall and she postponed intervention until after the birth. Dr. Karim diagnosed cervicalgia,
cervical pain, and thoracic back pain. On physical examination he observed bilateral paraspinal
tenderness and right trapezius tenderness with restricted flexion and extension. Review of an xray report demonstrated no acute fracture or dislocation, and review of an MRI scan of the lumbar
spine demonstrated no disc herniation with mild levels of neuroforaminal narrowing present
throughout the lumbar spine. Dr. Karim opined that appellant’s fall in 2017 may have exacerbated
preexisting spondylitic conditions in her lumbar and cervical spine and tha t her low back pain
symptoms may have been exacerbated by the fall.
By decision dated April 20, 2018, OWCP denied modification of its decision of
January 16, 2018.
On June 11, 2018 appellant requested reconsideration. She submitted a May 3, 2018 report
from Dr. Kayvon Alizadeh, Board-certified in surgery, anesthesiology, and pain medicine, in
which he diagnosed thoracic spine pain, low back pain with sciatica with an onset date of July 5,
2016, and lumbar spondylosis. Dr. Alizadeh noted that she presented with low and mid-back pain,
primarily right-sided, since a fall over a dock in November 2017. He noted that she completed a
course of physical therapy, but that the pain was still present. Dr. Alizadeh interpreted a lumbar

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spine MRI scan, which demonstrated degenerative disc disease at L4-5 and L5-S1 with a small
annular tear, as well as a cervical spine MRI scan demonstrated degenerative disc disease at C5-6
with left-sided disc bulging and neuroforaminal narrowing. On physical examination of the spine
he noted tenderness to palpation over the mid-thoracic spine with right-sided positive facet loading
and antalgic gait. Dr. Alizadeh opined that appellant’s primarily right-sided low and mid-back
pain after a fall in November 2017 was a likely component of discogenic presented pain. Appellant
also submitted a June 5, 2018 report from Dr. Alizadeh in which he diagnosed intervertebral disc
disorder and lumbar spondylosis. Dr. Alizadeh opined that appellant presented with low back pain
symptoms and primarily right-sided mid-back pain after falling at work in November 2017, that
the symptoms were likely consistent with a component of discogenic and facet neck pain with
posterior annular tearing of the low back, and that this was likely related to the fall at work. He
recommended a right-sided facet joint injection.
On August 15, 2018 appellant informed OWCP that she had returned to regular duty.
By decision dated August 16, 2018, OWCP denied modification of its decision of
April 20, 2018.
On October 15, 2018 appellant requested reconsideration. She submitted a September 25,
2018 report from Dr. Alizadeh in which he diagnosed lumbar spondylosis, lumbago, and
intervertebral disc disorder. Dr. Alizadeh noted that appellant continued to experience low and
mid-back pain symptoms, primarily right-sided with some left-sided symptoms, since a workrelated fall injury in 2017. On physical examination he observed tenderness to palpation over the
mid-thoracic spine with right-sided positive facet loading and antalgic gait. Dr. Alizadeh opined
that appellant’s lumbar spondylosis, degenerative disease of the lumbar spine, facet-genic and
discogenic pain were directly related to a work-related injury that occurred in November 2017. He
recommended a left-sided lumbar facet point injection.
By decision dated November 6, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence
submitted on reconsideration was cumulative and substantially similar to evidence that was already
contained in the case file and had been previously considered.
In a letter dated March 19, 2019, Dr. Alizadeh stated that appellant had low back pain
symptoms, primarily right-sided, after a fall at work in November 2017. He noted that an MRI
scan demonstrated degenerative disc disease at L4-5 and L5-S1 with a small annular tear.
Dr. Alizadeh stated that appellant’s pain was discogenic and facet-genic in nature and that she had
undergone a lumbar facet point injection with excellent response to the treatment. He opined that
the pain in her low back was a result of the fall at work in November 2017.
Appellant requested reconsideration on July 30, 2019. She submitted a July 18, 2019 letter
from Dr. Garozzo in which she noted that appellant was placed on bedrest during her pregnancy
secondary to the trauma of the back injury sustained at work, that she did not have issues prior to
the trauma, and that her pain had continued. Dr. Garozzo noted that she did not believe the pain
was related to the pregnancy and that appellant subsequently developed elevated blood pressure
during the pregnancy, which led to delivery.

4

By decision dated October 17, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
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. 3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or 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. 4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 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. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s July 30, 2019 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board finds
that it did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of her claim based on either
the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
4

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).
5

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. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). 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.
6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request. Evidence which is duplicative, cumulative, or repetitive
in nature is insufficient to warrant reopening a claim for merit review. 8 In support of her
reconsideration request, appellant submitted a letter dated March 19, 2019 in which Dr. Alizadeh
stated that appellant had low back pain symptoms, primarily right sided, after a fall at work in
November 2017. Dr. Alizadeh stated that an MRI scan demonstrated degenerative disc disease at
L4-5 and L5-S1 with a small annular tear. He stated that her pain was discogenic and facet-genic
in nature her pain was discogenic and facet-genic in nature and that she had undergone a lumbar
facet point injection. Dr. Alizadeh opined that the pain in her low back was a result of the fall at
work in November 2017. This letter was, however, duplicative and repetitive of his prior letter
dated September 25, 2018, and was, therefore, insufficient to warrant merit review.
Appellant also submitted a July 18, 2019 letter from Dr. Garozzo in which she noted that
she placed appellant on bedrest during her pregnancy secondary to the trauma of the back injury
sustained at work, that appellant did not have issues prior to the trauma, and that appellant’s pain
had continued. Dr. Garozzo noted that she did not believe the pain was related to the pregnancy.
This letter did not contain a valid diagnosis of a condition, as it related only appellant’s symptoms
of pain due to the incident in November 2017. Under FECA, the assessment of pain is not
considered a diagnosis, as pain merely refers to a symptom of an underlying condition. 9 The Board
has held that the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case. 10 As appellant failed to provide relevant
and pertinent new evidence, she is not entitled to a merit review based on the third requirement
under 20 C.F.R. § 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). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

See L.C., Docket No. 19-0503 (issued February 7, 2020); Denis M. Dupor, 51 ECAB 482 (2000); Eugene F.
Butler, 36 ECAB 393, 398 (1984).
9

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
not a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 081102 (issued October 10, 2008).
10

A.J., Docket No. 20-0926 (issued January 26, 2021); Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew
Diekemper, 31 ECAB 224 (1979).

6

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 13-428
Issued: January 8, 2014

Case Submitted on the Record

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

JURISDICTION
On December 19, 2012 appellant, through his attorney, filed a timely appeal from a
September 10, 2012 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 OWCP properly terminated appellant’s compensation effective
March 12, 2012 on the grounds that he refused suitable work under 5 U.S.C. § 8106(c)(2).
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 10, 2012 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 55-year-old temporary seasonal forestry
technician, sustained injuries to his neck and left upper extremity in the performance of duty due
to a slip and fall while changing a tire on July 11, 2006. His duty station was located in
Susanville, California, approximately 140 miles from his residence. OWCP authorized cervical
and left elbow surgeries. Appellant was placed on the periodic rolls and received compensation
benefits. In a January 25, 2011 report, Dr. James D. Tate, a Board-certified neurosurgeon and
appellant’s attending physician, indicated that appellant had generalized pain, cramps, left arm
pain, hand pain, hand numbness, back pain and shoulder pain. He reported that a December 20,
2010 magnetic resonance imaging (MRI) scan showed degenerative changes and small anterior
extradural bulges but no immediately surgically significant lesion.
On February 17, 2011 the employing establishment offered appellant a full-time modified
forestry technician (lookout) position in Susanville, California, which was a temporary seasonal
appointment available at 9:30 a.m. on May 22, 2011. The position required some walking,
standing, bending and moderate exertion involved on maintenance tasks and restricted use of the
left arm.
On March 22, 2011 Dr. Tate opined that appellant continued to deteriorate. Appellant
stated that he was not willing to accept the offer to return to work, for a number of reasons and
indicated that he would like to be retrained as a range master so that he could instruct the local
police community in firearms proficiency.
OWCP referred appellant to Dr. Mohinder Nijjar, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a May 6, 2011 report, Dr. Nijjar took a detailed medical
history, reviewed appellant’s medical records and performed a physical examination. He
concluded that appellant was capable of performing full-time, light-duty work as a forestry
technician lookout with the provision of changing positions every 30 minutes and the following
restrictions: walking, standing and reaching for 4 hours a day; no repetitive use of the left wrist
or elbow; pushing, pulling and lifting no more than five pounds.
In a report dated June 14, 2011, Dr. Tate indicated that appellant had no significant
change in his pathology and remained disabled. Appellant stated that he was unable to hold
binoculars with the left hand and dropped things on occasion. Dr. Tate opined that appellant’s
left arm difficulties would limit his ability to work as a fire lookout technician in terms of
climbing to the top of the fire lookout tower as well as holding binoculars for extended lengths of
time. He stated that it was reasonable for appellant to be rehabilitated to be a range master and
teach firearm safety and accuracy. On August 8, 2011 Dr. Tate indicated that appellant’s
symptoms were unchanged and experienced some upper back pain, bilateral hand tingling and
numbness, as well as bilateral arm and shoulder pain. On September 23, 2011 he indicated that
appellant’s left ulnar neuropathy and weakness had not seemed to change.
On October 28, 2011 the employing establishment offered appellant a full-time modified
position as an information receptionist in Susanville, California with the following restrictions:
walking, standing and reaching for four hours a day; no use of the left arm; 5-minute breaks
every 30 minutes. The position was available at 8:00 a.m. on November 28, 2011 as a temporary
seasonal appointment, which was the same type of appointment that appellant previously held.
2

By letter dated November 9, 2011, OWCP advised appellant that the modified
information receptionist position had been found to be suitable and conformed to the work
limitations provided by Dr. Nijjar in his May 6, 2011 report. The employing establishment
confirmed that the position remained available. OWCP allowed appellant 30 days to accept the
position or provide his reasons for refusal and advised that an employee who refuses an offer of
suitable work without reasonable cause is not entitled to compensation.
In a November 28, 2011 letter, counsel stated that appellant accepted the job offer, but
the job was at a time and place where there was no housing paid for by the employing
establishment. He indicated that the employing establishment had provided free housing at the
time of injury. Appellant only worked during the fire season and, therefore, lived in the barracks
without any cost. Counsel argued that since appellant was provided with housing at the time of
injury and had no money to rent and furnish an apartment, the employing establishment should
provide him with housing or postpone the job offer until the fire season when free housing would
be provided.
On December 6, 2011 Dr. Tate indicated that appellant had an exacerbation of pain and
Dr. Nijjar’s opinion on appellant’s ability to sit, stand and move was beyond what he felt his
capacities were.
By letter dated December 15, 2011, OWCP indicated that appellant had accepted the job
offer and reported to work on November 28, 2011, but did not stay once he was informed that
housing was not available. It advised him that his reasons for refusing the offered position were
not determined to be reasonable and his compensation benefits would be terminated if he did not
accept the position within 15 days. The employing establishment confirmed that the position
remained available and indicated that quarters in the barracks at the work center were available
but not mandatory for the offered position. The barracks were open from May through October
each year depending on snow conditions, as it was not feasible to keep them open year-round.
In a letter dated December 15, 2011, appellant indicated that he accepted the job offer
and met with his supervisor on November 28, 2011. He stated that the employing establishment
had provided housing for his seasonal employment during the 2005 and 2006 fire seasons at no
cost. At the time appellant was offered the modified position, the barracks were closed for the
winter and housing available for rent in the town of Susanville was very limited due to the winter
season. He received disability checks in the amount of $1,240.00 each month and indicated that
this was substantially less than what was required to obtain housing, which would cost $1,500.00
for the first and last month’s rent and security deposit, plus additional costs for utilities and
furniture. Appellant requested financial assistance to help him acquire housing in order to accept
the modified job offer as soon as possible.
By decision dated March 12, 2012, OWCP terminated appellant’s compensation benefits
effective that day on the basis that he refused suitable employment.
On March 19, 2012 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative, which was held via telephone on June 12, 2012. He provided
testimony and OWCP’s hearing representative held the case record open for 30 days for the
submission of additional evidence.

3

Subsequently, appellant submitted a July 11, 2006 document cosigned by him and his
supervisors, David Ramirez and David Trussell, stipulating the terms of agreement for his duties
as the relief fire lookout. The agreement stated that he would not be charged for the quarters
provided to him. Appellant also submitted a July 12, 2012 report from Dr. Tate and diagnostic
studies dated September 21, 2010 and August 8, 2012.
By decision dated September 10, 2012, OWCP’s hearing representative affirmed the
March 13, 2012 decision.
LEGAL PRECEDENT
It is well settled that, once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.3 Section 8106(c)(2) of FECA provides
that a partially disabled employee who refuses or neglects to work after suitable work is offered
Section
to, procured by or secured for the employee is not entitled to compensation.4
8106(c)(2) will be narrowly construed as it serves as a penalty provision, which may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.5
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his or her refusal to accept such employment.8
Determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area and the employee’s qualifications to perform such work.9 OWPC
procedures state that acceptable reasons for refusing an offered position include withdrawal of
the offer or medical evidence of inability to do the work or travel to the job.10

3

See Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

5 U.S.C. § 8106(c)(2).; see also Geraldine Foster, 54 ECAB 435 (2003).

5

See Joan F. Burke, 54 ECAB 406 (2003).

6

20 C.F.R. § 10.517(a).

7

Id. at § 10.516.

8

See Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff d on recon., 43 ECAB
818 (1992).
9

20 C.F.R. § 10.500(b).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal,
Chapter 2.814.5a (June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).

4

ANALYSIS
To justify termination of compensation, OWCP must show that the work offered was
suitable. The Board finds that it properly terminated appellant’s compensation on the grounds
that he refused suitable work under 5 U.S.C. § 8106(c)(2).
OWCP accepted that appellant sustained injuries to his neck and left upper extremity in
the performance of duty on July 11, 2006. On October 28, 2011 the employing establishment
offered him a temporary, seasonal full-time information receptionist position in Susanville,
California which required walking, standing and reaching for 4 hours a day; no use of the left
arm; 5-minute breaks every 30 minutes. OWCP found the position to be suitable work.
Appellant accepted the offer and reported to work on November 28, 2011, but did not stay once
he was informed that housing was not available. OWCP terminated his compensation benefits
effective March 12, 2012 on the grounds that he had refused an offer of suitable work.
The Board finds that the offered modified information receptionist position was within
appellant’s physical limitation as set forth by Dr. Nijjar on May 6, 2011, who also concluded that
he was capable of performing the duties of the selected position.11 There is no indication in the
job offer as written that any of the described sedentary duties exceeded Dr. Nijjar’s restrictions.
The Board further finds that the October 28, 2011 job offer was procedurally correct, as it was
made in writing, provided a detailed description of the assigned duties and physical requirements
and instructed appellant when to report for work.12 OWCP must also consider whether the work
is available within the employee’s commuting area and the employee’s qualifications to perform
such job.13 There is no dispute that appellant meets the qualifications of the position. Further,
the Board notes that the offered job is located at the same facility as his date-of-injury job in
Susanville, California. The facts of this case are in contrast to situations where appellant is
required to relocate to accept suitable work.14
Appellant argued that the modified information receptionist position was not suitable
because housing was not provided by the employing establishment as it had been for his date of
injury position. In support of this contention, he submitted a July 11, 2006 document, cosigned
by his supervisors, stipulating that appellant would not be charged for the quarters provided to
him. The Board finds the July 11, 2006 document suspect in that it was created on appellant’s
date of injury. Furthermore, the Board notes that the document does not guarantee that housing
would be available to him; rather, it simply reflects that he would not be charged if he chose to
live in the barracks. As the employing establishment noted, the barracks were only open from
May through October each year depending on snow conditions. It was not feasible to keep them
open in the winter. Appellant had been allowed to stay in the barracks when they were open.
However, the offered modified information specialist position was available on November 28,
2011 when the barracks were closed.

11

See Richard P. Cortes, 56 ECAB 200 (2004).

12

See 20 C.F.R. § 10.507.

13

Supra note 9.

14

Howard Y. Miyashiro, 51 ECAB 253 (1999); Allen W. Hermes, 41 ECAB 838 (1990).

5

As no requirement to provide housing existed as a condition of employment for the dateof-injury position, the Board finds that appellant’s reasons for refusing the offered modified
information receptionist position were not acceptable.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds that his argument is not substantiated.
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 OWCP properly terminated appellant’s compensation effective
March 12, 2012 on the grounds that he refused suitable work under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2014Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.T., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
REGION SOUTHWEST, San Diego, CA,
Employer
__________________________________________

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

Docket No. 18-0628
Issued: October 25, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 25, 2018 appellant filed a timely appeal from an August 4, 2017 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 to
consider the merits of the case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $12,769.00 during the period February 1 through December 10, 2016; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly
1
2

5 U.S.C. § 8101 et seq.

The Board notes additional evidence was submitted to OWCP and on appeal following the August 4, 2017
decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Thus the Board is precluded from considering this additional evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).

required recovery of the overpayment by deducting $50.00 every 28 days from appellant’s
continuing compensation payments.
FACTUAL HISTORY
On October 24, 2005 appellant, then a 55-year-old administrative/technical specialist filed
a traumatic injury claim (Form CA-1) alleging that she sustained injury to her right knee when it
struck the underside of a table while in the performance of duty. On December 2, 2005 OWCP
accepted her claim for right knee contusion. It paid appellant wage-loss compensation and medical
benefits on the supplemental rolls beginning December 26, 2005, and on the periodic rolls
beginning July 9, 2006. OWCP later expanded acceptance of the claim to include aggravation of
right knee medial meniscus tear on July 17, 2006. On September 28, 2007 appellant underwent
arthroscopic partial medial and lateral meniscectomies. On February 19, 2010 she underwent total
right knee arthroplasty.
In an informational letter dated February 10, 2012, OWCP informed appellant that FECA
required her wage-loss compensation benefits to be reduced if she began receiving Social Security
Administration (SSA) retirement benefits based on her age and federal service. It notified her of
her obligation to report receipt of such retirement benefits to avoid an overpayment of
compensation. On Form CA-1032s dated February 27, 2012, March 4, 2014, and February 18,
2015, appellant informed OWCP that she was receiving SSA benefits as part of an annuity for
federal service.
On May 8 and September 12, 2012 OWCP provided SSA with a form for calculation of
dual benefits. In a memorandum dated August 7, 2015, the employing establishment requested
that OWCP contact SSA to determine whether appellant was in receipt of SSA benefits. On
September 10, 2015 OWCP again provided SSA with a form for calculations of dual benefits. The
SSA responded on September 24, 2015 and reported that no Federal Employees Retirement
System (FERS) offset applied for the period beginning October 12, 2005. The employing
establishment submitted a second memorandum dated October 18, 2016 and again requested that
OWCP contact SSA to determine whether appellant was in receipt of SSA benefits. SSA
responded on October 21, 2016 and indicated that beginning February 2016 her SSA rate including
her federal employment under FERS was $2,032.50 per month. The SSA rate that appellant was
entitled to without her federal employment was $758.40. Beginning in December 2016 these rates
increased to $2,038.50 and $760.60 respectively. On November 26, 2016 the employing
establishment informed OWCP that appellant was eligible for aged-based social security in
February 2016.
On December 14, 2016 OWCP issued a preliminary determination that appellant had been
overpaid compensation benefits in the amount of $12,769.00 because she received FECA wageloss compensation benefits concurrently with SSA retirement benefits from February 1 through
December 10, 2016. It found that she was without fault in the creation of the overpayment. OWCP
explained the calculation of the overpayment noting that beginning February 1, 2016 appellant
received SSA benefits in the amount of $2,032.50 which included her federal employment.
Without her federal employment, appellant was entitled to SSA benefits in the amount of $760.60.
The difference between the amount of SSA benefits properly owed and the amount paid was
$1,277.90. OWCP noted that it paid wage-loss compensation benefits every 28 days and converted

2

the $1,277.90 amount to a 28-day equivalent of $1,179.60. It then multiplied this amount by
10.825, the number of 28-day pay periods from February 1 through December 10, 2016, and found
an overpayment of compensation in the amount of $12,769.00. OWCP recommended that
appellant be found without fault in the creation of the overpayment because she was not aware nor
could she reasonably have been expected to know that OWCP had paid compensation incorrectly.
It requested that she submit a completed overpayment recovery questionnaire (Form OWCP-20)
to determine a fair repayment method. It also noted that appellant could request waiver of recovery
of the overpayment. OWCP provided her with her appeal rights and afforded 30 days for a
response.
In a letter dated December 14, 2016, OWCP again informed appellant that she had been
receiving a prohibited dual benefit. It noted that the portion of SSA benefits earned as a federal
employee was part of her retirement and that the receipt of wage-loss compensation under FECA
and federal retirement was prohibited. OWCP adjusted appellant’s FECA benefits to account for
her SSA offset, which reduced her FECA wage-loss compensation payments from $2,527.33 to
$1,347.73.3
On January 10, 2017 appellant requested a telephone conference on the issues of fault and
possible waiver of recovery of the overpayment. She provided a completed Form OWCP-20 and
supporting financial documents. Appellant indicated that she had no cash on hand and that her
bank accounts totaled $6,002.59. She listed her monthly income as $1,926.00. Appellant’s
housing cost was $1,200.00 and she provided her bank statements for the remainder of her living
expenses.
Appellant’s telephone conferences occurred on July 10 and August 2, 2017. She noted that
she received SSA in the amount of $1,826.00 and that her SSA compensation was reduced from
$1,926.00 due to an overpayment. Appellant’s wage-loss compensation from FECA was
calculated as $1,388.57 every 28 days or $1,504.28 per month. Her total monthly income was
$3,330.28. Appellant’s monthly expenses included: rent, $1,200.00; food and necessities,
$300.00; clothing, $50.00; utilities, $185.00; medication, $50.00; car payment, $400.88; car
insurance, $97.00; extended car warranty, $261.56; cable, internet, and telephone, $247.88;
cellphone, $66; insurance on cellphone $8.99; renter’s insurance $23.00; gasoline, $106.00; life
insurance, $87.00; credit monitoring service, $9.95; and storage fees, $115.00. Her monthly
expenses totaled $3,208.26 per month. Appellant noted that she had filed for bankruptcy in 2015
and listed her assets as $712.00.
By decision dated August 4, 2017, OWCP determined that appellant received an
overpayment of compensation in the amount of $12,769.00 as she received SSA benefits in
addition to her wage-loss compensation benefits under FECA. It further found that she was not at
fault in the creation of the overpayment, but it denied waiver of recovery of the overpayment as
her monthly income exceeded her monthly expenses by $98.00 and recovery would therefore not
defeat the purpose of FECA. OWCP further noted that recovery would not be against equity and
good conscience. It required recovery of the overpayment by deducting $50.00 every 28 days
from appellant’s continuing wage-loss compensation payments.
3

The amount of the SSA offset was noted as $1,179.60.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of her federal employment.4 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of
SSA benefits based on age or death that are attributable to federal service.6 If an employee receives
SSA benefits based on federal service, his or her compensation benefits shall be reduced by the
amount of SSA benefits attributable to his or her federal service.
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP
will then deduct the hypothetical benefit from the actual benefit to determine the amount of
benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of the overpayment.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $12,769.00 for the period February1 through December 10, 2016
because she received wage-loss compensation for total disability while also receiving SSA
retirement benefits attributable to her federal service without the appropriate offset.
The SSA provided appellant’s SSA rate with FERS and her hypothetical SSA rate without
FERS. The difference between the amounts must be deducted from FECA benefits. Based on the
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(d); see also M.P., Docket No. 17-1703 (issued June 26, 2018); N.R., Docket No. 12-1853 (issued
June 10, 2013).
7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter
2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); see R.C., Docket No. 09-2131 (issued April 2,
2010) (OWCP does not require an election between FECA benefits and SSA benefits except when they are attributable
to the employee’s federal service).
8

See M.P., supra note 5; L.B., Docket No. 11-2076 (issued August 29, 2012).

4

information provided by SSA, OWCP determined that she received an overpayment of
compensation in the amount of $12,769.00 for the period February 1 to December 10, 2016. The
Board has reviewed OWCP’s calculations of the dual benefits that appellant received and finds
that it properly determined that she received a $12,769.00 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless “incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of [FECA] or would be against equity and good conscience.”9 Thus, a
finding that appellant was without fault does not automatically result in waiver of recovery of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.10
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.11 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, savings accounts, mutual funds,
and certificates of deposits.12 Nonliquid assets include, but are not limited to the fair market value
of an owner’s equity in property such as a camper, boat, second home and furnishings/ supplies,
vehicle(s) (i.e., any vehicles above the two allowed per immediate family), jewelry, and artwork.13
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse.14 To establish that, a valuable right has been relinquished, it must
be shown that the right was in fact valuable, that it cannot be regained, and that the action was
based chiefly or solely in reliance on the payments or on the notice of payment.15

9

5 U.S.C. § 8129(a)-(b); see D.C., Docket No. 17-0559 (issued June 21, 2018).

10

See D.C., id.; L.S., 59 ECAB 350 (2008).

11

20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(June 2009).
12

Id.

13

Id.

14

20 C.F.R. § 10.437.

15

Id. at § 10.437(b)(1).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly found that appellant was without fault in the creation
of the overpayment of compensation, however, recovery of the overpayment cannot be waived.
OWCP properly determined that appellant did not require substantially all of her income
to meet ordinary and normal living expenses. Appellant asserted that she had a monthly income
of $3,330.28 and monthly expenses of $3,208.26. OWCP found that her monthly income of
$3,330.28 and her monthly expenses of $3,208.26 yielded a monthly surplus amount of
approximately $100.00. An individual is deemed to need substantially all of her monthly income
to meet current and ordinary living expenses if monthly income does not exceed monthly expenses
by more than $50.00.16 As appellant’s current income exceeds her ordinary and necessary living
expenses by approximately $100.00, she does not need substantially all of her income for ordinary
and necessary living expenses.17
Additionally, the evidence of record does not demonstrate that recovery of the overpayment
would be against equity and good conscience. Appellant submitted no evidence that she relied
upon the incorrect payments to her detriment or that she would experience severe financial
hardship attempting to repay the debt.18 Consequently, OWCP properly denied waiver of recovery
of the overpayment.
Appellant maintains on appeal that she was without fault in the creation of the
overpayment. However, the fact that an error by OWCP resulted in an overpayment does not
relieve a claimant from liability for repayment.19
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.20

16

Supra note 11 at Chapter 6.200.6(a)(3) (June 2009); D.C., supra note 9.

17
As appellant’s income exceeds her ordinary and necessary living expenses by more than $50.00, it is not
necessary for OWCP to consider whether her assets exceed the allowable resource base. See D.C., supra note 9; J.W.,
Docket No. 16-1355 (issued January 10, 2017).
18

20 C.F.R. § 10.437.

19

Id. at § 10.435(a); D.C., supra note 9; Lawrence J. Dubuque, 55 ECAB 667 (2004).

20

Id. at § 10.441(a); P.E., Docket No. 16-0321 (issued May 29, 2018).

6

ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the financial information appellant
submitted as well as the factors set forth in section 10.441. As appellant’s monthly income was
$3,330.28 and her monthly expenses were $3,208.26, OWCP did not abuse its discretion in
requiring recovery by deducting $50.00 every 28 days from each of her continuing compensation
payments. The Board finds that OWCP properly required recovery of the overpayment in this
case.21
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $12,769.00 for the period February 1 through
December 10, 2016. The Board further finds that OWCP properly denied waiver of recovery of
the overpayment, and properly required recovery of the overpayment by deducting $50.00 every
28 days from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2018
Washington, DC

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

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

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

21

T.M., Docket No. 17-1482 (issued May 4, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Z., Appellant
and
DEPARTMENT OF THE ARMY,
McALESTER AMMUNITION PLANT,
McAlester, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-735
Issued: October 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 25, 2010 appellant, through attorney, filed a timely appeal from the
December 23, 2009 decision of the Office of Workers’ Compensation Programs denying his
recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issue is whether appellant established that he sustained a recurrence of disability as
of April 24, 2007 due to his accepted March 27, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. On March 27, 2006 appellant injured his
low back and left buttock while getting into a truck. The Office accepted his claim for lumbar
strain/sprain. On May 9, 2007 appellant’s filed a recurrence of disability claim commencing on
April 24, 2007. The Office denied his claim on July 16, 2007. On November 29, 2007 it denied

appellant’s request for reconsideration. In a September 12, 2008 decision, the Board remanded
the case to the Office for additional development of the medical evidence based on the report of
the attending physician, Dr. John W. Ellis.1 The facts of the case are set out in the Board’s prior
decision and incorporated herein by reference.
On February 12, 2009 the Office referred appellant to Dr. Christopher Jordan, a Boardcertified orthopedic surgeon, for a second opinion examination. In a March 7, 2009 report,
Dr. Jordan reviewed appellant’s history of injury and medical treatment. He noted appellant’s
complaint of weakness in the left leg and a preexisting history of back problems dating to 1986.
Dr. Jordan listed findings on physical examination, providing range of motion without evidence
of back spasm or pain with compression. On neurological examination, he noted that there was
some apparent inconsistency of effort, with normal muscle strength and equal reflexes or other
abnormality. Dr. Jordan noted that a lumbar magnetic resonance imaging (MRI) scan of April 3,
2006 showed broad-based disc bulges at L2-3 and L4-5, with no mention of a disc herniation.
He noted that previous physicians of record had diagnosed lumbar degenerative joint disease
with sciatica. A June 11, 2007 MRI scan revealed disc bulging at all levels of the lumbar spine
with facet joint arthritis and generally moderate foraminal stenosis on the left. A September 15,
2008 MRI scan was reported by the radiologist as similar to the MRI scan obtained in 2006 with
no disc protrusions or spinal stenosis.
Dr. Jordan noted that the only physical finding on examination was in the left sacroiliac
joint region. He stated that appellant’s electromyography (EMG) was reported as normal,
suggesting subjective numbness reported in the feet would not be related to the accepted injury.
Appellant also had normal light touch sensation which did not produce in any level. Dr. Jordan
described the mechanism of injury as a muscle strain as appellant was simply getting into a
truck. He advised that the strain had long since resolved. Dr. Jordan noted that appellant’s
subjective symptoms had not ceased but that they were not related to the accepted injury. He
advised that appellant had limited motion of the spine but that he was able to perform a sedentary
sitting job full time.
In a May 6, 2009 addendum, Dr. Jordan stated there was no evidence that appellant
sustained a recurrence of disability as of April 24, 2007 causally related to the March 27, 2006
employment injury. He reiterated that the December 13, 2008 EMG was reported as normal and
a December 16, 2008 discogram was nondiagnostic. Dr. Jordan found that appellant’s ongoing
low back symptoms were not causally related to the accepted low back strain.
In a June 4, 2009 decision, the Office denied appellant’s recurrence of disability claim.
By letter dated June 23, 2009, appellant’s counsel requested a telephonic hearing before
an Office hearing representative, which was held on October 9, 2009.
In an October 9, 2009 report, Dr. Ellis advised that appellant continued to have moderateto-severe low back pain which radiated bilaterally into the legs. He noted severe low back,
bilateral hip and thigh muscle spasms and stated that appellant was totally disabled due to his

1

Docket No. 08-1033 (issued September 12, 2008).

2

medication, pain and symptoms.
April 24, 2007.

Dr. Ellis did not address appellant’s disability as of

In a December 23, 2009 decision, an Office hearing representative affirmed the June 4,
2009 denial of appellant’s recurrence claim.
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.2 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken and an
appropriate new claim should be filed.3
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such an
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and that such a relationship must be supported
with affirmative evidence, explained by medical rationale and be based on a complete and
accurate medical and factual background of the claimant.4 Medical conclusions unsupported by
medical rationale are of diminished probative value and are insufficient to establish causal
relation.5
ANALYSIS
Appellant sustained injury on March 27, 2006 while getting into a truck. His claim was
accepted for a lumbar sprain/strain. Appellant was treated and released from care on
May 12, 2006. He was treated again in 2007 by Dr. Ellis, an attending family practitioner.
Dr. Ellis advised that appellant had returned to full duty but continued to have numbness and
tingling in his left foot. As noted, the Board remanded the case to the Office for further
development on the issue of whether appellant sustained a recurrence of disability due to his
accepted back condition.
Appellant was referred to Dr. Jordan, a Board-certified orthopedic surgeon, for
examination. On March 7, 2009 Dr. Jordan set forth findings on examination of appellant,
2

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also A.M., 61 ECAB ___ (Docket No. 09-1895, issued April 23, 2010); Phillip L.
Barnes, 55 ECAB 426 (2004).
3

Id. See also B.B., 61 ECAB ___ (Docket No. 09-1858, issued April 16, 2010); Donald T. Pippin, 54 ECAB
631 (2003).
4

O.W., 61 ECAB ___ (Docket No. 09-2110, issued April 22, 2010); Conard Hightower, 54 ECAB 796 (2003).

5

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Albert C. Brown, 52 ECAB 152 (2000).

3

noting that the neurological examination was normal and that there were limitations on range of
low back motion without muscle spasm or pain with compression. He provided an extensive
review of appellant’s prior medical treatment, noting diagnostic studies obtained in 2006 showed
broad-based disc bulging without evidence of any disc herniation. Dr. Jordan advised that
appellant had some foraminal stenosis at L5-S1 with lumbar degenerative disease and sciatica.
He noted that, as of May 12, 2006, Dr. R. Tyler Boone had found a normal range of motion and
good neurological motor strength of the lower extremities. Dr. Boone recommended that
appellant return to regular duty. Dr. Ellis examined appellant on May 7, 2007 for decreased
sensation in the right medial thigh and left calf. Additional testing on June 11, 2007 noted the
lumbar bulging discs at all levels with facet joint arthritis. A September 15, 2008 MRI scan was
reported as showing the bulging lumbar discs without evidence of disc protrusion or spinal
stenosis.
Dr. Jordan found that the mechanism of appellant’s March 27, 2006 employment injury
resulted in a muscle strain, which had since resolved. Based on his review of the findings on
physical examination and diagnostic testing, Dr. Jordan stated it was difficult to attribute
appellant’s ongoing lumbar complaints to the accepted employment injury. In a May 6, 2009
addendum, he stated that there was no evidence that appellant’s disability as of April 24, 2007
was causally related to the accepted lumbar sprain/strain. Dr. Jordan reiterated that the most
recent diagnostic EMG of December 13, 2008 was reported as normal and that a December 16,
2008 discogram was nondiagnostic. The weight of the medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of physician’s
knowledge of the facts of the case, the medical history provided the care of analysis manifested
and the medical rationale expressed in support of stated conclusions.6 Dr. Jordan fully discussed
the history of injury, appellant’s preexisting lumbar condition and explained that there were no
objective findings to support that his disability in April 2007 was due to residuals of the accepted
lumbar sprain/strain. The Board finds that the report of Dr. Jordan constitutes the weight of
medical opinion.
In an October 9, 2009 report, Dr. Ellis reported that appellant continued to have
moderate-to-severe low back pain which radiated bilaterally into the legs, with muscle spasms in
the low back, bilateral hip and thigh regions. He stated generally that appellant was totally
disabled due to his medication, pain and symptoms. The report of Dr. Ellis is not sufficient to
establish that appellant’s disability as of April 2007 is causally related to the accepted March 27,
2006 injury. He did not address this issue in his report, thereby rendering it of diminished
probative value on the issue in this appeal. In the prior decision, the Board noted that Dr. Ellis
failed to provide sufficient rationale in support of appellant’s claimed April 24, 2007 recurrence
of disability. Dr. Ellis’ October 9, 2009 report does not further address the issue. The Board has
held that medical opinions which fail to offer an opinion regarding the cause of an employee’s
condition are of limited probative value on the issue of causal relationship.7
The Office properly determined that the weight of medical opinion was represented by
Dr. Jordan. His reports are detailed as to appellant’s history of injury and medical treatment,
6

See K.W., 59 ECAB 271 (2007); Michael S. Mina, 57 ECAB 379 (2006); Ann C. Leanza, 48 ECAB 115 (1996).

7

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); Michael E. Smith, 50 ECAB 313 (1999).

4

well rationalized and based upon a complete and accurate review. Dr. Jordan opinion represents
the weight of the medical evidence.
CONCLUSION
The Board finds that appellant did not establish that his disability commencing April 24,
2007 was causally related to his accepted lumbar sprain/strain of March 27, 2006.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5