United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Bellmawr, NJ,
Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-1018
Issued: September 10, 2015

Case Submitted on the Record

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

On April 2, 2015 appellant filed a timely appeal of a December 5, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP), denying a claim for an additional
schedule award.1 The appeal was docketed as No. 15-1018.
The record indicates that OWCP selected Dr. Alfred Dawson, a Board-certified
orthopedic surgeon, to resolve a conflict in the medical evidence with respect to permanent
impairment to the extremities. Dr. Dawson submitted a September 23, 2010 report. By decision
dated June 18, 2011, OWCP found that he did not resolve the conflict. A memorandum of
telephone call dated August 31, 2011 indicated that OWCP spoke to Dr. Dawson regarding
diagnostic testing and medical report requirements. Dr. Dawson submitted a March 21, 2012
report on April 9, 2012. OWCP again spoke with him on the telephone on April 11, 2012, again
1

The hearing representative found that referee physician, Dr. Timothy Wagner, a Board-certified orthopedic
surgeon, represented the weight of the evidence. Appellant had received a June 28, 2004 schedule award decision
for a five percent left arm impairment, and a January 31, 2013 decision for a five percent right arm permanent
impairment. By decision dated June 14, 2006, the Board had remanded the case for further development regarding
the left arm permanent impairment. Docket No. 06-0154 (issued June 14, 2006). In an earlier appeal, the Board
reversed a December 29, 2000 termination of compensation decision.
Docket No. 02-0802 (issued
August 27, 2002).

discussing the medical report requirements for the issue presented. Dr. Dawson submitted an
additional report dated April 12, 2012.
An OWCP hearing representative, in a decision dated August 15, 2013, found that the
telephone communication with Dr. Dawson was improper and the supplemental reports from
Dr. Dawson must be excluded from the record. This is consistent with long-standing Board
precedent regarding improper contact between OWCP and a referee physician.2
OWCP procedures have specific requirements for medical reports that must be excluded
from consideration. A memorandum is written explaining why the reports are excluded.3 The
referee report and any clarification reports are then combined with the exclusion memorandum,
and the combined document is entered into the record as “MISC/memo to file” rather than
medical evidence. The author date and received date is the date of the memorandum.4 Letters to
a physician who is sent medical evidence should instruct the physician to disregard the excluded
report.5
OWCP did not follow any of its procedures with respect to excluded medical reports in
this case. No memorandum was prepared, the reports were untouched in the record, and no
reference was made to the excluded reports in a statement of accepted facts or other document.
It is not clear whether the reports were provided to the new referee physician, Dr. Wagner. The
purpose of the procedures regarding exclusion of medical reports is to make it clear to physicians
and others that certain medical evidence is not to be considered in rendering a decision.
The case will be remanded for OWCP to properly follow its procedures regarding
exclusion of medical reports. After excluding the medical evidence that was improperly
obtained, OWCP should select a new referee physician and resolve the conflict in the medical
evidence. After such further development as is deemed necessary, it should issue an appropriate
decision.

2

See J.F., Docket No. 08-1182 (issued June 18, 2009); Carlton L. Owens, 36 ECAB 608 (1985).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.12(b) (September 2010).
4

Id.

5

Id.

2

IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: September 10, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 13-1220
Issued: November 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 10, 2013 appellant filed a timely appeal from an October 12, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 60 percent permanent impairment to each
leg.

1

Under the Board’s Rules of Procedure, an appeal must be filed 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Board. One hundred and eighty
days from October 12, 2012, the date of OWCP’s decision was April 10, 2013. Since using April 23, 2013 the date
the appeal was date stamped received by the Clerk of the Board would result in the loss of appeal rights, the date of
the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is April 10, 2013, which
renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 15, 2004 appellant, then a 56-year-old distribution clerk, filed an
occupational claim (Form CA-2) alleging that she sustained injuries to her back, hip and knees as
a result of her federal employment. The accepted conditions in the case are: bilateral sprain of
the lateral collateral ligament, lumbar sprain, bilateral meniscus tears, right leg osteoarthritis,
bilateral shoulder arthropathy and bilateral rheumatoid arthritis. Appellant underwent right knee
surgery on October 12, 2005, which included partial excision of the right medial meniscus. On
March 15, 2006 she underwent left knee arthroscopic surgery.
OWCP referred appellant to Dr. Timothy Pettingell, a Board-certified physiatrist, for a
second opinion examination. In a report dated November 1, 2006, Dr. Pettingell opined that
appellant had a 22 percent right leg impairment and a 12 percent left leg impairment under the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). In a report dated December 19, 2006, an OWCP medical adviser
opined that under the A.M.A., Guides appellant had a 20 percent left leg impairment and a
10 percent right leg impairment based on loss of knee range of motion.
By decision dated February 13, 2007, OWCP issued a schedule award for a 20 percent
left leg and 10 percent right leg permanent impairment. The period of the award was 86.40
weeks from July 13, 2006.
Appellant underwent right knee total arthroplasty surgery on June 25, 2008. In a report
dated April 22, 2009, Dr. J. Arden Blough, a Board-certified family practitioner, provided results
on examination. He opined that, under the sixth edition of the A.M.A., Guides, appellant had a
59 percent right leg impairment due to the total knee replacement surgery. Dr. Blough also
found that she had a two percent left leg impairment due to a torn meniscus and a two percent
whole person impairment due to recurrent low back pain with radicular symptoms.
In a report dated August 13, 2009, an OWCP medical adviser opined that appellant had
59 percent right leg impairment due to the total knee arthroplasty and a 2 percent leg impairment
from the lumbar injury. The medical adviser combined the values for a 60 percent right leg
impairment. As to the left leg, the medical adviser found 2 percent impairment for the
meniscectomy, which was less than the 10 percent previously awarded. The medical adviser
found that appellant did have an additional two percent left leg impairment based on the lumbar
spine injury.
By decision dated September 15, 2009, OWCP issued a schedule award for an additional
50 percent to the right leg and 2 percent for the left leg. The period of the award was 149.76
weeks of compensation commencing April 22, 2009.
Appellant underwent additional left knee arthroscopic surgery on February 5, 2010. In a
report dated May 28, 2010, Dr. M. Stephen Wilson, an orthopedic surgeon, opined that she had a
37 percent left leg impairment due to her knee injury. OWCP referred appellant to Dr. Michael
Smith, a Board-certified physiatrist, for a second opinion examination. In a report dated
January 4, 2011, Dr. Smith opined that she had a 59 percent right leg impairment based on the
right knee surgeries and a 22 percent impairment to the left leg based on the left knee.

2

In a report dated July 8, 2011, Dr. Wilson opined that appellant had a 59 percent
impairment to both her right and left legs based on her bilateral knee conditions. By report dated
July 28, 2011, an OWCP medical adviser found that she had not reached maximum medical
improvement with respect to the left leg.3
By report dated February 10, 2012, Dr. Wilson again opined that appellant had a
59 percent permanent impairment to each leg based on the A.M.A., Guides. In a report dated
March 6, 2012, an OWCP medical adviser reviewed Dr. Wilson’s report. The medical adviser
concurred that appellant had a 59 percent bilateral leg impairment. For the right leg, he found
that she was not entitled to an additional award. For the left leg, the medical adviser noted that
appellant had previously received 20 percent due to the left knee and 2 percent from the lumbar
spine injury. He found that 20 subtracted from 59 was 39 percent and then combined 2 percent
with 39 percent under the Combined Values Chart in the A.M.A., Guides, resulting in 40
percent. The medical adviser then subtracted 2 percent and opined that appellant was entitled to
an additional 38 percent for the left leg.
By decision dated April 11, 2012, OWCP issued a schedule award for an additional
38 percent to the left leg. The period of the award was 109.44 weeks from March 6, 2012. The
decision found that appellant was not entitled to an additional impairment to the right leg.
Appellant requested a hearing before an OWCP hearing representative, which was held
on August 10, 2012. By decision dated October 12, 2012, the hearing representative affirmed
the April 11, 2012 decision.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.4 Neither, FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6
With respect to knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3. The class of impairment (CDX) is determined based on specific diagnosis and then the
default value for the identified CDX is determined. The default value (grade C) may be adjusted
by using grade modifiers for Functional History (GMFH), Table 16-6, Physical Examination
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3

The medical adviser referred to a report by a Dr. Kalisky without further explanation.

4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

A.M.A., Guides 509, Table 16-3.

3

(GMPE), Table 16-7 and Clinical Studies (GMCS), Table 16-8. The adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the
period of compensation paid under the schedule for an earlier injury if: (1) compensation in both
cases is for impairment of the same member or function or different parts of the same member or
function; and (2) the latter impairment in whole or in part would duplicate the compensation
payable for the preexisting impairment.9
ANALYSIS
In the present case, both the attending physician Dr. Wilson and the medical adviser
applied Table 16-3 and found that appellant had a 59 percent permanent impairment to each leg.
The diagnostic criteria were a total knee replacement, with a class (CDX) 4 default impairment
of 67 percent for a poor result from the surgery. As noted above, the default impairment (grade
C) is then adjusted by assigning a grade modifier for functional history (GMFH), physical
examination (GMPE) and clinical studies (GMCS). Dr. Wilson and the medical adviser assigned
a grade modifier 3 for functional history and physical examination and 2 for clinical studies.
Applying the adjustment formula noted above, the result is -4, resulting in an adjustment to a
grade A or 59 percent.10
There is no evidence of a greater impairment to either leg. Both Dr. Wilson and the
medical adviser applied Table 16-3 and concluded that appellant had 59 percent bilateral leg
impairment.
There remains, however, the issue of a reduction of the schedule award based on the
compensation previously paid for permanent impairment to the legs. As to the right leg,
appellant had received compensation based on 60 percent leg impairment. In the September 15,
2009 schedule award, OWCP found that appellant had a 59 percent right leg impairment based
on the knee and 2 percent impairment for a lumbar injury. Combining the 59 percent and
2 percent under the A.M.A., Guides Combined Values Chart11 results in 60 percent leg
impairment. Therefore, the record indicated that appellant had previously received a schedule
award based on 59 percent for the right knee and 1 percent for the lumbar injury. Since she had
already received compensation for a 59 percent leg impairment based on the right knee, she was
not entitled to an additional schedule award for the right leg.
As to the left leg, the record indicates that appellant had received compensation for
22 percent leg impairment. Appellant had received a schedule award for a 20 percent left leg
impairment on February 13, 2007 that was based on a left knee impairment. But the additional
two percent paid for the left leg in the September 15, 2009 schedule award was based on a
lumbar condition affecting the left leg. The medical adviser appeared to find that the current leg
8

The net adjustment is up to +2 (grade E) or -2 (grade A).

9

T.S., Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(c).

10

A.M.A., Guides 511, Table 16-3.

11

A.M.A., Guides at 604.

4

impairment based on the knee did not duplicate the two percent impairment based on a lumbar
injury. He noted that appellant had received a two percent impairment based on the “accepted
condition in the lumbar spine.” But the medical adviser, after deducting 20 percent for the prior
impairment, then combines 39 and 2 for 40 percent and then further deducts 2 percent for a
38 percent additional impairment. No authority is cited for such a calculation or additional
explanation is provided.
If the current leg impairment does not duplicate the 2 percent impairment from a lumbar
condition, then it is not clear why the reduction from the current impairment would not simply be
20 percent. The case will be remanded for a proper medical report with a clear explanation, in
accord with 20 C.F.R. § 10.404(c), as to any reduction based on duplication of a preexisting
impairment. After such further development as is deemed necessary, it should issue an
appropriate decision.
CONCLUSION
The Board finds that OWCP properly found that appellant was not entitled to an
additional impairment for the right leg. The case requires further development with respect to
the left leg impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 12, 2012 is affirmed with respect to the right leg and set
aside and remanded for further development as to the left leg.
Issued: November 22, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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Appearances:
Gregory G. Gay, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-577
Issued: September 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 6, 2011 appellant filed a timely appeal of the December 16, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which suspended her
compensation.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits for
failure to submit an EN1032 form when requested.

1

Appellant died on February 12, 2011 after the filing of this appeal. As she properly filed the appeal in her
lifetime, all that is needed is a substitute appellant to carry the appeal forward as the Board’s jurisdiction was
invoked during her lifetime. See Albert F. Kimbrell, 4 ECAB 662, 666 (1952). Accordingly, appellant’s widower,
who is represented by counsel, is recognized by this Board as the substitute appellant for purposes of carrying the
appeal forward.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 20, 1991 appellant, then a 32-year-old letter carrier, filed an occupational disease
claim alleging that she sustained stress as a result of her federal employment. She stopped work
on June 4, 1991. By letter dated November 8, 1991, OWCP accepted appellant’s claim for major
depressive reaction. Appellant returned to work on January 6, 1992. OWCP paid her wage-loss
compensation for subsequent periods of total disability.
On November 1, 2010 OWCP informed appellant that she was required to provide
information requested in connection with her receipt of benefits under FECA and it enclosed a
Form EN1032 for that purpose. Appellant was advised to completely answer all questions and
return the form within 30 days or her benefits would be suspended in accordance with 20 C.F.R.
§ 10.528. OWCP sent the letter to her address of record. Appellant did not respond.
In a December 16, 2010 decision, OWCP suspended appellant’s compensation benefits as
of January 15, 2011 based on her failure to report earnings and employment information as
required. It noted that, if she completed and returned an enclosed copy of the EN1032 form, her
compensation benefits would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.4 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.5
ANALYSIS
In a November 1, 2010 letter, OWCP requested that appellant complete and return an
enclosed EN1032 form concerning the status of her employment and any dependents. It properly
notified her that, if she did not completely answer all questions and return the statement within
30 days, her benefits would be suspended. The record reflects that OWCP properly sent the

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528.

5

Id.; see also 20 C.F.R. § 10.525; Robert A. Robbins, Docket No. 05-728 (issued July 15, 2005).

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letter to appellant’s address of record.6 Appellant did not respond. She did not return a
completed EN1032 form to OWCP within the time period allowed. As appellant failed to
complete and return the information concerning her benefits as regulated by OWCP, it properly
suspended her compensation effective January 15, 2011 pursuant to 20 C.F.R. § 10.528.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits based
on her failure to timely submit a completed EN1032 form when requested.
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6

Under the mailbox rule it is presumed, absent evidence to the contrary, that a notice mailed to an individual in
the ordinary course of business was received by that individual. See Joseph R. Giallanza, 55 ECAB 186 (2003);
A.C. Clyburn, 47 ECAB 153 (1995).

3


United States Department of Labor
Employees’ Compensation Appeals Board

S.B., Appellant
and
GENERAL SERVICES ADMINISTRATION,
ACQUISITION CENTER, Kansas City, Mo,
Employer
__________________________________________

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

Docket No. 16-1124
Issued: November 10, 2016

Case submitted on the record

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

JURISDICTION
On May 5, 2016 appellant filed a timely appeal of an April 13, 2016 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 on appeal is whether appellant has met his burden of proof to establish an
emotional condition in the performance of duty.
FACTUAL HISTORY
On July 13, 2015 appellant, then a 37-year-old contracting officer, filed a traumatic injury
claim (Form CA-1) alleging that on April 13, 2015, he was subjected to “Harassment at work,
coughing, noise pollution and noise from the environment in my workplace to induce more hurt
1

5 U.S.C. § 8101 et seq.

and pain at time. [sic] Sometimes to correct and micromanage things.” He stopped work on
April 30, 2015. Accompanying the claim was an undated resignation letter from appellant.
Appellant claimed that he had been released from the hospital on May 18, 2015 and would no
longer work with the employing establishment. He noted that his last day would be June 2, 2015
and that this was his two weeks’ notice, but he “would not be able to work in the meantime.”
OWCP also received a notification of personnel action (Form CA-50) regarding his resignation
effective June 2, 2015. The employing establishment controverted the claim and indicated that
appellant submitted a resignation letter on May 19, 2015 with two weeks’ notice. The
employing establishment indicated that he dropped off his equipment on May 27, 2015 and he
had completed no work since April 29, 2015.
In a May 18, 2015 disability certificate, Dr. Lourdes Gonzales, a psychiatrist, advised that
appellant was under her care for treatment and that he was on leave from May 19 to
June 14, 2015.
By letter dated July 20, 2015, OWCP advised appellant that the evidence of record was
insufficient to establish his claim and requested that he submit additional supportive factual and
medical evidence. In a separate letter also dated July 20, 2015, it requested that the employing
establishment submit additional factual and medical evidence.
On July 22, 2015 OWCP received a July 13, 2015 occupational disease claim, (Form CA2), from appellant. Appellant alleged that he was working on his computer “as usual with office
and service contract related award administrations.” He noted that, “Since the Obama
administration’s new management, there has been harassment and micromanagement that
amounted to much more stress and increase of paranoia in my mental health. Over the years, I
have become more suspicious and had a hard time coping.” Appellant alleged that his illness
was an aggravation of his “schizoaffective/schizophrenia that was under control with better
cubicles until we moved to open space work environment. Psychological pain and hurts are in
question and lost all of my sick leave.” He noted his hospitalization and advised that he did not
file his claim sooner because he always wanted “to side on mercy and grace even though my
environment might be toxic.” Appellant indicated that he “was not providing anything at this
time because I want an investigation to open. My management is aware of what was going on.
Unfortunately, they are the puppets of Washington as well. No one is taking a chance to boldly
stand against injustice.” He claimed that he first realized that his condition was caused or
aggravated by his federal employment on April 23, 2013. Appellant stopped work on
April 30, 2015.
The employing establishment controverted this claim as well and noted that appellant had
resigned on May 19, 2015 effective June 2, 2015. Appellant’s supervisor noted that appellant’s
medical condition had not been revealed or discussed until appellant filed his claim. He
indicated that a team leader had been assigned in March 2015 due to an office reorganization.
The supervisor indicated that appellant lost approximately four weeks of leave during May 2015,
but otherwise was a dependable, hardworking associate.
In a July 22, 2015 letter, Jacqueline L. Yost, an employing establishment workers’
compensation specialist, controverted appellant’s claim. She explained that he had not
documented his claims and that his allegations were unclear. Ms. Yost further noted that it did

2

not appear to be in the course of employment or performance of his duties. She also asserted that
appellant had a preexisting condition. OWCP received a July 21, 2015 hospital visit record from
New York Presbyterian Hospital covering the period June 5 to 12, 2013. The record did not
contain a physician’s report.
In a letter dated July 24, 2015, OWCP advised appellant that he had filed two claims for
the same condition. It indicated that the matter would be adjudicated under the occupational
disease claim.
Appellant submitted September 12 and 14, 2015 statements. He noted that he started his
position under the administration of President Bush. Appellant noted that “as soon as the Obama
administration took place, or a couple months later, he was put under pressure.” He alleged:
“[M]anagement started using people around me to communicate with me and
mess with my mind in a way that I could not be understood by other people. They
created some sort of encryption and decryption of messages through coughing and
monitoring whatever I was doing on my computer. Whenever I would make a
mistake or something that displeased them, someone around me would cough and
blame allergies or cold. They used pretty much all my surrounding neighbors. I
felt that it would not be appropriate to put more pressure on my coworkers and
myself and it is one of the reasons why I left my job/position. The coughing from
neighbors would happen every single day whenever we had to meet at 26 Federal
Plaza -- not when working from home. No one would back me up since they
were all under pressure from management. As such, my condition of
suspiciousness and schizophrenia has worsened over the past couple years.
Instead of being of help, I was seen as an outcast or someone so dangerous that
they had to check my bag for safety measure I guess. I feel like I was treated
differently in a condescending way by management besides the harassment going
on through the environment such as slamming doors or being brutal in closing
closets in the environment and so forth.”
Appellant asserted that his employing establishment thought of him “as a spy or some
intruder that came to sabotage the mission of my previous [employing establishment].” He
related that he was paranoid, “but they took a step further into my paranoia” by making “use of
all people in my surroundings to communicate with me nonverbally and through the environment
like in a second layer of communication.” Appellant continued: “The summit of this happened
that I was hospitalized in May of 2013 because of poor management and other ailment within my
body and mind happening due to the stress received from my workplace. I had to be hospitalized
for three weeks and finally in May of 2015 before I made the decision that it was my best interest
for my health to leave my job.” He explained that he was hospitalized on April 30, 2015 and for
much of May 2015. After this, appellant was affected by medication side effects that prevented
him from filing his claim sooner. Regarding his stress, he advised that he felt like a red fish in a
small bowl where people could see him; that he felt that he was under observation 24/7.
Appellant allowed that “familial stress could also be coming from my sister who is also suffering
from depression.” He explained that his condition developed “during Obama’s administration
the first term as soon as the Democratic administration took place” and, since that time, “they
had misappropriate[d] or took usage of the sound and everything that is in the environment to

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wage a psychological warfare against me as I came under Bush’s administration.” Appellant
related symptoms of “extra stimulation of my sensory organs from smelling to hearing to seeing
etc.” and noted that whenever he “rant[ed] about the current administration on Facebook politely,
things seem to get worse. To treat these, I take meds and see a psychiatrist.” He indicated that
he had been under a psychiatrist’s care since 2003 for paranoid schizophrenia. Appellant
advised that his mental condition had stabilized for a couple of years, which allowed him to
work, until stress came upon him at the employing establishment. He noted that he used
medication to relieve anxiety and stress.
Appellant also submitted a July 3, 2015 report from Dr. Gonzales who had treated
appellant since July 23, 2014. Dr. Gonzales diagnosed schizoaffective disorder and reported that
appellant had previous psychiatric hospitalizations for paranoid delusions, ideas of reference, and
auditory hallucinations in 2002, 2004, and 2013. Appellant was recently hospitalized from
May 1 to 18, 2015 for worsening mania on top of baseline psychosis. He reported “having more
and more signals sent to him in the form of messages in the form of license plates or posters” and
related receiving “signals from God.” Dr. Gonzales related that appellant lived with his mother
and was “paranoid that she places something in his food.” She advised that he denied suicidal or
homicidal ideations. Dr. Gonzales advised that because of appellant’s “current acuity of mental
illness symptoms, such as paranoid delusions, referential delusions, affective liability symptoms,
inability to focus, ineffective at workplace” he was unable to perform his job. She noted that he
resigned, effective June 1, 2015, which she highly recommended and supported. Also provided
was a July 23, 2014 from Dr. Gonzales, noting appellant’s history and treatment and a March 16,
2006 report from Dr. Jessica Daniels, a Board-certified psychiatrist, who noted treating appellant
for paranoid-type schizophrenia.
By decision dated April 13, 2016, OWCP denied appellant’s claim. It found that the
evidence of record failed to establish an emotional condition in the performance of duty. OWCP
found that appellant had not established any compensable factors of employment.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.2 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.3 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.4
2

Leslie C. Moore, 52 ECAB 132 (2000).

3

Dennis J. Balogh, 52 ECAB 232 (2001).

4

Id.

4

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.6 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.7 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.8 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.9 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.11 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.12
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.13
With regard to emotional claims arising under FECA, the term harassment as applied by the
Board is not the equivalent of harassment as defined or implemented by other agencies, such as
the Equal Employment Opportunity Commission, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
5

28 ECAB 125 (1976).

6

See Robert W. Johns, 51 ECAB 137 (1999).

7

Supra note 5.

8

J.F., 59 ECAB 331 (2008).

9

M.D., 59 ECAB 211 (2007).

10

Roger Williams, 52 ECAB 468 (2001).

11

Charles D. Edwards, 55 ECAB 258 (2004).

12

Kim Nguyen, 53 ECAB 127 (2001).

13

James E. Norris, 52 ECAB 93 (2000).

5

compensation under FECA, the term harassment is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or coworkers.
Mere perceptions and feelings of harassment will not support an award of compensation.14
ANALYSIS
OWCP denied appellant’s emotional condition claim, finding that he had failed to
establish any compensable employment factors. The Board must, thus, initially review whether
these alleged incidents and conditions of employment are covered employment factors under the
terms of FECA. The Board notes that none of appellant’s claimed employment factors are
alleged to be related to his regular or specially assigned duties under Cutler.15
Appellant alleged that he was closely monitored and scrutinized regarding his work. He
noted frustration with management and is dissatisfied with his work environment.16 Such
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employing establishment rather than the regular or specially
assigned work duties of the employee and are not covered under FECA. The Board has held
that, where the evidence establishes error or abuse on the part of the employing establishment in
what would otherwise be an administrative matter, coverage will be afforded.17 The employing
establishment denied that it committed error or abuse with respect to such matters and appellant
has submitted insufficient evidence to establish specific incidents, as to time and place of error or
abuse with respect to these allegations. Appellant has failed to support these allegations with any
witness statements or evidence to support these allegations that the employing establishment
acted unreasonably.
Appellant also claimed that management was “using people around me to communicate
with me and mess with my mind in a way that I could not be understood by other people.” He
alleged that the employing establishment “created some sort of encryption and decryption of
messages through coughing and monitoring whatever I was doing on my computer” and that,
whenever he made “a mistake or something that displeased them, someone around me would
cough and blame allergies or cold.” Appellant indicated that this coughing, noise pollution, and
noise from the environment in his workplace was designed to induce “more hurt and pain at
time” and “sometimes to correct and micromanage.” He argued that no one would corroborate
his assertions due to pressure from management. The Board notes that the employing
establishment denied that appellant was subjected to harassment or discrimination and explained
that he had resigned on May 19, 2015 effective June 2, 2015. The employing establishment also
14

Beverly R. Jones, 55 ECAB 411 (2004).

15

Supra note 5.

16

The Board has held that an employee’s dissatisfaction with perceived poor management constitutes frustration
from not being permitted to work in a particular environment or to hold a particular position and is not compensable
under FECA. See Michael Thomas Plante, 44 ECAB 510, 515 (1993). See supra note 14 (assigning work and
monitoring work are administrative functions of the employing establishment).
17

See Matilda R. Wyatt, 52 ECAB 421 (2001); Ruth S. Johnson, 46 ECAB 237 (1994); reaff’d on recon., 42
ECAB 556 (1991); and Thomas D. McEuen, 41 ECAB 387 (1990).

6

noted that it had not been aware of his medical condition until he filed his claim. It further
explained that political affiliation had no direct impact on appellant’s job. The Board finds that
he has not submitted sufficient evidence to establish that the incidents or actions which he
characterized as harassment or discrimination actually occurred.18
Appellant also asserted that he was harassed by being singled out, closely monitored such
as having his bag checked, and treated in a condescending manner. He further asserted that his
employing establishment thought he was a “spy” or “intruder that came to sabotage the mission
of my previous [employing establishment].” However, appellant has not provided any evidence
to support these claims or to establish disparate treatment. The Board notes that there are no
witnesses and the employing establishment denied such claims of harassment.
The Board finds that appellant has not established a compensable employment factor.
Thus, it is unnecessary to address the medical evidence of record.19
Appellant may submit evidence or argument with a written request for reconsideration
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
For the foregoing reasons, appellant has not met his burden of proof to establish an
emotional condition in the performance of duty.

18

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
19

Garry M. Carlo, 47 ECAB 299 (1996). See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-104
Issued: July 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2008 appellant, through his attorney, filed a timely appeal from an
April 7, 2008 merit decision of the Office of Workers’ Compensation Programs terminating his
compensation benefits and from April 17 and August 15, 2008 merit decisions of the Office
finding that he had no continuing disability. Pursuant to 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 the Office properly terminated appellant’s compensation
effective April 7, 2008 on the grounds that he had no further disability due to his accepted
condition of bilateral carpal tunnel syndrome; (2) whether the Office properly terminated
appellant’s authorization for medical benefits; and (3) whether appellant has established that he
had any continuing employment-related disability after April 7, 2008.
FACTUAL HISTORY
On January 24, 2007 appellant, then a 51-year-old mail handler, filed an occupational
disease claim alleging that he sustained bilateral carpal tunnel syndrome due to factors of his

federal employment. He stopped work on December 2, 2006. The Office accepted the claim for
bilateral carpal tunnel syndrome.
The Office paid appellant compensation for total disability beginning January 27, 2007.
On May 15, 2007 Dr. Amelia L. Tabuena, a physiatrist, found that appellant was unable to
perform his usual employment. By letter dated May 29, 2007, the Office referred appellant to
Dr. Steven J. Valentino, an osteopath certified by the American Osteopathic Association in
orthopedic surgery, for a second opinion examination. On June 20, 2007 Dr. Valentino
diagnosed resolved bilateral carpal tunnel syndrome and found that he could resume his usual
employment.
On July 5, 2007 the Office requested that Dr. Tabuena review Dr. Valentino’s report and
provide a current medical opinion. Dr. Tabuena referred appellant to Dr. Randall W. Culp, a
Board-certified orthopedic surgeon, for an examination. On August 27, 2007 Dr. Culp found a
positive Phalen’s test bilaterally and diagnosed bilateral carpal tunnel syndrome. He
recommended a right carpal tunnel release. On September 20, 2007 Dr. Culp performed a right
carpal tunnel release and median nerve neurolysis.
The Office determined that a conflict in medical opinion existed between appellant’s
attending physicians, Drs. Tabuena and Culp, and the Office referral physician, Dr. Valentino, on
the issue of whether appellant had any further disability or need for medical treatment due to his
accepted condition of bilateral carpal tunnel syndrome. It referred appellant to Dr. Richard
Mandel, a Board-certified orthopedic surgeon, for an impartial medical examination.
On January 31, 2008 Dr. Mandel reviewed the history of injury and the medical evidence
of record. On examination of the upper extremities, he found no muscle atrophy or swelling and
inconsistent effort on grip strength. Dr. Mandel determined that the neurological examination
was normal and that appellant had a negative Phalen’s test and Tinel’s sign bilaterally. He noted
that diagnostic testing on January 23, 2007 showed severe right carpal tunnel syndrome.
Dr. Mandel opined that appellant had recovered from his right carpal tunnel surgery
September 2007 and stated:
“This is based upon a restoration of normal sensation in the median nerve
distribution of the right hand and an absence of any clinical evidence of residual
carpal tunnel syndrome in the right hand. [Appellant] demonstrated borderline
normal sensation over all digits on the right as well as sub-maximal effort and
evidence of embellishment during grip strength testing on the right. Overall, I
was not able to substantiate his remaining complaint on the right, that of grip
weakness. In fact, he demonstrated evidence of embellishment and sub-maximal
effort on grip strength testing on the right.
“With regard to the diagnosis of any ongoing left carpal tunnel syndrome, sensory
testing today was well within normal range, suggesting that any carpal tunnel
syndrome on the left has resolved.
“With regard to return to work, in terms of the accepted injuries, it is my opinion
that [appellant] is capable of returning to full regular duty work.”

2

On March 6, 2008 the Office notified appellant of its proposed termination of his
compensation and medical benefits. It found that Dr. Mandel’s opinion constituted the weight of
the medical evidence and established that he had no further disability or need for medical
treatment.1 By decision dated April 7, 2008, the Office finalized its termination of appellant’s
benefits and authorization for medical treatment effective April 7, 2008.
In an April 4, 2008 statement, received by the Office on April 10, 2008, appellant
contested the proposed termination of his benefits. He completed a Form CA-7 on April 15,
2008 requesting compensation from March 29 through April 11, 2008. By decision dated
April 17, 2008, the Office denied appellant’s claim for compensation for March 29 through
April 11, 2008. It noted that it had paid compensation until April 6, 2008 and that he was not
entitled to compensation after that date based on the termination decision.
On March 3 and 31 and April 30, 2008 Dr. Nicholas Diamond, an osteopath, diagnosed
lumbar disc syndrome, right rotator cuff tendinitis, a right knee meniscus tear and lumbar
radiculopathy. He found that appellant was unable to work.
On May 13, 2008 appellant requested reconsideration. He contended that Dr. Valentine
did not know why he was examining him and that Dr. Mandel lied about his findings in order to
receive payment. By decision dated August 15, 2008, the Office denied modification of its
April 7, 2008 termination decision.
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. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.4 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.5 In situations where there exist opposing medical reports of virtually equal weight and
1

A March 15, 2008 x-ray which revealed unremarkable right wrist findings.

2

Willa M. Frazier, 55 ECAB 379 (2004); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

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

4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.321.

3

rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral carpal tunnel syndrome due to
factors of his federal employment. Appellant stopped work on December 2, 2006 and did not
return. The Office paid him compensation for total disability beginning January 27, 2007.
The Office determined that a conflict in medical opinion arose between Dr. Culp,
appellant’s attending physician, and Dr. Valentino, the Office referral physician, on the issue of
whether he had continuing disability or need for further medical treatment for his carpal tunnel
syndrome. Where there exist opposing medical reports of virtually equal weight and rationale
and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.7 The Board finds that the opinion of
Dr. Mandel, a Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is
well rationalized and based on a proper factual and medical history. Dr. Mandel accurately
summarized the relevant medical evidence, provided detailed findings on examination and
reached conclusions about appellant’s condition which comported with his findings.8 On
January 31, 2008 he reviewed the medical evidence of record, including the results of diagnostic
studies. On examination Dr. Mandel found a bilateral negative Phalen’s test and Tinel’s sign and
opined that appellant’s neurological examination was normal. He asserted that appellant had
recovered from his right carpal tunnel syndrome, and provided rationale for his opinion by
noting the restoration of sensation in the medial nerve distribution of the right hand, and the lack
of clinical findings of carpal tunnel syndrome. Dr. Mandel further determined that appellant had
no residuals of his left carpal tunnel syndrome based on the results of sensory testing. He opined
that appellant could perform his usual employment. As Dr. Mandel’s report is detailed, well
rationalized and based on a proper factual background, his opinion is entitled to the special
weight accorded an impartial medical examiner. The Office thus met its burden of proof to
terminate appellant’s compensation benefits for the accepted conditions of bilateral carpal tunnel
syndrome.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.9 To terminate authorization for medical treatment, the

6

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

7

Id.

8

Manuel Gill, 52 ECAB 282 (2001).

9

Roger G. Payne, 55 ECAB 535 (2004); Pamela K. Guesford, 53 ECAB 727 (2002).

4

Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.10
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Mandel, the impartial medical examiner, who found that appellant had
no residuals of his bilateral carpal tunnel syndrome. Dr. Mandel explained that the clinical
examination revealed that the right and left carpal tunnel syndrome had resolved. As his opinion
is detailed and well rationalized, it is entitled to the special weight accorded an impartial medical
examiner and establishes that appellant has recovered from his accepted employment injury.
LEGAL PRECEDENT -- ISSUE 3
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish that he had continuing disability after that date related to his
accepted injury.11 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 causal
relationship.12 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence
ANALYSIS -- ISSUE 3
Appellant submitted reports dated March 3 and 31 and April 30, 2008 from Dr. Diamond,
who diagnosed lumbar disc syndrome, right rotator cuff tendinitis, a right knee meniscus tear and
lumbar radiculopathy. Dr. Diamond opined that appellant was unable to work. The Office did
not accept a low back, rotator cuff or right knee condition as employment related. Where
appellant claims that a condition not accepted or approved by the Office was due to his
employment injury, he bears the burden of proof to establish that the condition is causally related
to the employment through the submission of rationalized medical evidence.13 Dr. Diamond did
not; however, address the causal relationship between the diagnosed conditions and factors of
appellant’s employment as a mail handler. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of diminished probative value on the issue of
causal relationship.14 Appellant has not submitted medical evidence sufficient to overcome the
weight accorded Dr. Mandel as the impartial medical examiner and thus has not met his burden
of proof to establish that he has any continuing employment-related disability.

10

Id.

11

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

12

See Manuel Gill, supra note 8.

13

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

14

Conard Hightower, 54 ECAB 796 (2003).

5

CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical treatment effective April 7, 2008 on the grounds that he had no further
disability due to his accepted employment injury of bilateral carpal tunnel syndrome. The Board
further finds that he has not established that he had any continuing employment-related disability
after April 7, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 15 and April 17 and 7, 2008 are affirmed.
Issued: July 10, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, WASHINGTON
TOWNSHIP POST OFFICE, Dayton, OH,
Employer
__________________________________________

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

Docket No. 18-0353
Issued: February 18, 2020

Case Submitted on the Record

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

JURISDICTION
On December 2, 20171 appellant filed a timely appeal from a June 9, 2017 merit decision
and a November 27, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from June 9, 2017, the date of OWCP’s last merit decision, was
December 6, 2017. Since using December 11, 2017, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is December 2, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the November 27, 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional lumbar spine conditions as
causally related to the accepted August 2, 2011 employment injury; (2) whether OWCP abused its
discretion by denying appellant authorization for an April 10, 2014 lumbar spine surgery; and
(3) 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
On August 2, 2011 appellant, then a 48-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he injured his left knee and left ankle on that date when he moved
quickly to avoid being bitten by a dog, causing his knee to pop when he shifted his weight and was
hit by the dog, while in the performance of duty. Following his initial medical treatment, on
September 20, 2011, OWCP accepted his claim for left knee and leg sprain, left ankle sprain, and
sprain of left ankle other sites specified. It paid appellant wage-loss compensation on the
supplemental rolls commencing September 24, 2011.
In a report dated October 24, 2011, Dr. Kevin J. Paley, a Board-certified orthopedic
surgeon, noted that appellant was injured when a dog physically struck his left knee causing a
twisting injury followed by a fall into a brick wall striking his knee a second time. He noted
appellant’s claim had been accepted for left ankle and knee sprains, but should also be accepted
for the additional conditions of chondromalacia of the left knee and left ankle patellar
tendinopathy. Dr. Paley reviewed a magnetic resonance imaging (MRI) scan and found that
appellant also has a medial meniscus tear based on clinical criteria. He indicated that appellant
was incapable of returning to work and had been refused work by the employing establishment
due to his use of crutches.
OWCP referred appellant to Dr. Rudolf A. Hofmann, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine the nature and extent of appellant’s accepted
employment-related conditions. In his November 17, 2011 report, Dr. Hofmann indicated that his
objective residuals were mild left medial knee joint instability with tenderness along the medial
joint space and clinical findings consistent with a tear of the posterior medial meniscus and a
tender, painful nodule in the mid-portion of the left Achilles tendon with MRI scan findings of
tendinosis (tendinitis) of the left Achilles tendon. He found no evidence of a work-related left
ankle sprain. Dr. Hofmann diagnosed chondromalacia of the left patella based on his review of a
September 9, 2011 MRI scan and noted that a physical examination in regards to possible
chondromalacia of the left knee was not possible that day due to inability of appellant to fully
extend his left knee. He further diagnosed patellar tendinitis/tendinosis supported by the
September 9, 2011 MRI scan. Dr. Hofmann opined that appellant’s left knee chondromalacia of
the patella and the left knee patellar tendinitis conditions were causally related to his August 2,
2011 employment injury. He explained that the direct blow against the anterior aspect of the left
knee was consistent with damage to the patellar articular cartilage and patellar ligament.
Dr. Hofmann further opined that appellant’s work-related conditions necessitated a left knee
arthroscopic surgery.
By decision dated January 24, 2012, OWCP expanded the acceptance of appellant’s claim
to include left Achilles tendinitis, left chondromalacia patellae, and left patellar tendinitis.
2

Appellant underwent authorized left knee surgery on February 15, 2012.
In reports dated April 20, June 27, and July 12, 2012, Dr. Brandon W. Bishop, a podiatrist,
diagnosed left tarsal syndrome and left Achilles tendinitis with associated left equinus deformity
and opined that appellant had exhausted conservative care and, therefore, recommended a
gastrocnemius recession of the left side, left Achilles tendon debridement, possible retro-calcaneal
exostectomy, as well as left tarsal tunnel release. He opined that appellant’s tarsal tunnel condition
was “connected to his original injury on [August 2, 2011] where he was attacked by [a] dog and
was noted that his foot was everted at the time and his ankle twisted inwards, and as he eternally
rotated his foot and his knee, his knee buckled medially.”
On August 30, 2012 Dr. Nabil F. Angley, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), indicated that Dr. Bishop’s recommendation for surgery “may
be unnecessary” and recommended referring appellant to a Board-certified orthopedic surgeon
who specializes in foot and ankle surgery for an opinion and recommendation on the necessity of
surgery.
OWCP subsequently referred appellant to Dr. Edward Gregory Fisher, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether appellant required
surgery for his accepted conditions. In his October 26, 2012 report, Dr. Fisher found that the left
knee sprain/strain, left ankle sprain/strain, and the patella tendinitis had all healed with no objective
findings or residuals. He further found that the Achilles tendinitis and left knee chondromalacia
of the patella remained active and present based on findings of patellofemoral crepitation,
tenderness/discomfort over the patella on palpation and on flexion/ extension of the left knee, and
tenderness on palpation over the medial side of the distal end of the Achilles tendon. Dr. Fisher
opined that appellant’s conditions were causally related to the accepted employment injury. He
further opined that, while appellant had tarsal tunnel syndrome, there was no equinis deformity of
the left ankle. Dr. Fisher did not detect bursitis over the left side of the calcaneus upon physical
examination and there was no evidence, by way of examination or MRI scan, of an exostosis over
the calcaneus. He, therefore, concluded that a tarsal tunnel release on the left side was the only
appropriate surgical procedure for appellant and the remaining requested surgical procedures were
not medically necessary and/or appropriate.
By decision dated March 18, 2013, OWCP expanded the acceptance of appellant’s claim
to include the additional condition of tear of the medial meniscus of the left knee and left tarsal
tunnel syndrome.
Appellant underwent an OWCP-authorized left foot Achilles tendon repair and tarsal
tunnel release surgery on April 29, 2013.
A functional capacity evaluation (FCE) dated January 29, 2014 demonstrated that appellant
was capable of the functional capacities that were consistent with the medium physical demands
category. Appellant was unable to tolerate the walking route demands of his previous position,
but was able to tolerate a customer service position.
In a January 31, 2014 report, Dr. Paley noted that appellant had a herniated nucleus
pulposus at C5-6, confirmed by MRI scan, and a positive electromyography (EMG) of the upper
extremity which showed cervical radiculopathy at the same level.

3

On April 10, 2014 appellant underwent an anterior lumbar interbody fusion at L5-S1,
which was performed by Dr. Nicolas Grisoni, a Board-certified orthopedic surgeon.
In a January 8, 2016 report, Dr. Grisoni indicated that appellant claimed that he had an
L5-S1 disc protrusion and herniation caused by a work reconditioning program and that the disc
herniation had been treated surgically in April 2014. He opined that the work reconditioning
program aggravated a mild, essentially asymptomatic issue with appellant’s low back. Dr. Grisoni
explained that a singular act of bending over to pick up a cell phone cord on February 7, 2014 was
not the sole cause of the disc herniation. He indicated that, based on his progressive, severe pain
during the work reconditioning program that he most likely ruptured his disc at some point during
the course of the work reconditioning program, and the February 7, 2014 nonwork-related incident
simply caused the disc herniation to become more symptomatic as the disc protruded further and
caused more neurocompressive pathology.
In reports dated November 30, 2015 through April 11, 2016, Dr. Paley opined that
appellant continued to complain of pain and swelling in the left knee and needed surgical
intervention in the form of a repeat arthroscopy of the knee.
In reports dated May 4 and 9, June 3 and 29, and July 25 and 28, 2016, Dr. Paley provided
progress notes on appellant’s left lower extremity conditions and diagnosed complex tear of medial
meniscus, right knee. He further indicated that appellant’s complaints of lumbar pain were related
to a vocational rehabilitation accident he had while recovering from a prior knee surgery.
On August 16, 2016 appellant underwent an authorized left knee surgery performed by
Dr. Paley.
In a September 9, 2016 report, Dr. Paley indicated that appellant presented with complaints
of pain in the cervical region and diagnosed sprain of ligaments of the cervical spine. He indicated
that appellant had previously sustained an injury at work and his claim had been accepted by
OWCP for cervical disc displacement.4
On October 5, 2016 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving
as a DMA, reviewed the medical evidence of record and found that appellant had extensive
preexisting degenerative disease at L5-S1 and MRl scan reports showed gradual progressive
bulging and ultimately a herniation of the L5-S1 disc space. He opined that appellant’s spinal
condition was a progressive protrusion not related to the August 2, 2011 employment injury. The
DMA further indicated that the injury was not consequential to his discogenic abnormality because
MRl scan studies of the lumbar spine dated January 5, 2012 revealed mildly degenerative disease
with slight retrolisthesis, but no compressive disc herniation. He noted that there was dehydration
at L5-S1 which indicated long-standing degenerative disease with desiccation as demonstrated.
The DMA also noted that there was no compressive disc herniation or stenosis from L2 through
S1 and therefore, no evidence of disc herniation at L5-S1. He concluded that appellant’s April 10,
2014 surgery had been an “elective reconstructive procedure fusion” of L5-S1 and was not
“reasonable and necessary” due to his accepted August 2, 2011 employment injury. The DMA
further concluded that bulging discs at L2-3, L3-4, and L4-5 with stenosis and retrolisthesis at
4

Appellant has an additional claim for a December 17, 2008 injury that has been accepted for numerous conditions,
including cervical spine disc displacement, under OWCP File No. xxxxxx623. Appellant’s claims have not been
administratively combined.

4

L3-4 and L4-5 with nerve root stenosis should not be accepted conditions in this claim. He opined,
however, that appellant had sustained an additional injury superimposed upon his left Achilles
tendinitis and recommended that the claim be expanded to include the additional condition of
aggravation of left Achilles tendinitis and left ankle surgery.
In an addendum report dated January 17, 2017, the DMA explained that the work
conditioning/hardening program appellant underwent in late 2013/early 2014 for his left foot and
ankle conditions was “not competent to produce or ultimately contribute to” his lumbar spine
conditions and/or the April 10, 2014 lumbar spine surgery. He opined that none of appellant’s
lumbar conditions represented an acute injury, as no single event or multiple events of this type of
word hardening could have caused his multiple level disc abnormalities. The DMA concluded
that appellant’s lumbar conditions all represented chronic long-standing, preexisting conditions
had not been caused by the work-hardening program. He also concluded that the medical record
also failed to establish that appellant’s lumbar conditions were aggravated by the work-hardening
program and concluded that they were preexisting and degenerative in nature.
On March 1, 2017 OWCP found a conflict in the medical opinion evidence and referred
appellant to Dr. Theodore Toan Le, a Board-certified orthopedic surgeon serving as an impartial
medical examiner (IME), to resolve the conflict as to whether there was a causal relationship
between the claimed lumbar spine conditions and the work-hardening program and also the
necessity and appropriateness of the April 10, 2014 lumbar spine surgery.
In a March 29, 2017 report, the IME, Dr. Le, submitted his findings upon examination
following a review of a statement of accepted facts (SOAF) and the medical evidence of record.
He opined that appellant’s lumbar spine conditions were not related to the accepted August 2, 2011
employment injury. The IME reported that he had 42 visits for his work-hardening program and
there had been only four complaints during those visits of stiffness or soreness to his lumbar spine.
The duration of the visits were noted to be anywhere from three to four hours and appellant had
been able to tolerate the program well. The IME reviewed the diagnostic testing of record and
opined that he had a preexistent condition at the L5-S1 level and that over the course of two-plus
years, he developed worsening of the condition and an acute episode of increased pain in
February 2014. He concluded that the work-hardening program, over a period of two-and-a-half
months, was insufficient to have contributed to the disc herniation. The IME concurred with
Dr. Berman that appellant’s progressive right L5-S1 para-median disc protrusion was progressive
in nature, not acute in terms of herniation.
On March 29, 2017 appellant underwent an authorized left Achilles tendon repair surgery,
which was performed by Dr. James P. Martens, a Board-certified orthopedic surgeon.
By decision dated June 9, 2017, OWCP denied the expansion of the acceptance of
appellant’s claim to include additional lumbar spine conditions finding that the medical evidence
of record failed to establish that his diagnosed lumbar conditions were causally related to the
accepted August 2, 2011 employment injury. It further denied authorization for the April 10, 2014
lumbar spine surgery.
On July 28, 2017 appellant requested reconsideration. In support of his request, he
submitted progress reports regarding his bilateral knee conditions dated June 19, July 28,
August 28, and October 2 and 23, 2017, and duty status reports (Form CA-17) regarding his
5

accepted left knee/ankle conditions dated June 29, July 28, August 28, October 23, and
November 17, 2017 from Dr. Paley.
In reports dated July 17 and September 25, 2017, Dr. Martens prescribed physical therapy
for appellant’s status post left Achilles tendon debridement and provided progress notes relating
to his postsurgical condition.
In a July 19, 2017 report, a physical therapist indicated that appellant had attended a workhardening program and confirmed that appellant had remarked about “some on-going lower back
irritation and pain as well as some right leg radiating pain as well.” The therapist noted that these
complaints were “overshadowed by the left ankle and knee issues.”
Appellant resubmitted MRI scan reports of the lumbar spine dated January 5, 2012,
February 17 and July 7, 2014, and February 16, 2015.
By decision dated November 27, 2017, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
When 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.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background.7 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional lumbar spine conditions as
causally related to the accepted August 2, 2011 employment injury.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physicians, Drs. Grisoni and Paley, who opined that his L5-S1 spinal condition was caused and/or
aggravated by a work-hardening program for his accepted left lower extremity conditions, and its
5

M.B., Docket No. 19-0485 (issued August 22, 2019); R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K.
Asaramo, 55 ECAB 200 (2004).
6

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

7

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Id.

6

DMA, Dr. Berman, who opined that appellant’s lumbar conditions were chronic long-standing,
preexisting conditions and could not have been caused by the work-hardening program. It properly
referred appellant to Dr. Le, serving as the IME, to resolve the conflict, pursuant to 5 U.S.C.
§ 8123(a).
In his March 29, 2017 report, the IME found that appellant’s lumbar spine conditions were
not causally related to the accepted August 2, 2011 employment injury. He reported that appellant
had 42 visits for his work conditioning program, but on only four occasions had he complained of
stiffness or soreness to his lumbar spine. The IME reviewed the diagnostic testing of record and
opined that he had a preexistent condition at the L5-S1 level which, over the course of two-plus
years, had progressed and resulted in an acute episode of increased pain in February 2014. He
concluded that the work-conditioning program had not contributed to the disc herniation,
concurring with Dr. Berman that appellant’s progressive right L5-S1 para-median disc protrusion
was progressive in nature, not acute in terms of herniation.
The Board finds that Dr. Le’s impartial medical examination report represents the special
weight of the medical evidence as he had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. The IME is a specialist in the appropriate field, his opinion is
based on a proper factual and medical history, and his report contained a detailed summary of this
history. He addressed the medical records to make his own examination findings to reach a
reasoned conclusion regarding appellant’s employment-related conditions.9 Following physical
examination, the IME found no basis on which to attribute causal relationship between the
additional spinal conditions and the accepted August 2, 2011 employment injury. His opinion, as
set forth in his March 29, 2017 report, is found to be probative evidence and reliable. The Board
therefore finds that the IME’s opinion constitutes the special weight of the medical evidence.
As Drs. Grisoni and Paley were on one side of the conflict, their subsequent reports are
insufficient to create a new conflict in medical opinion or to overcome the special weight properly
accorded to the IME.10 Therefore, OWCP properly determined that these additional reports were
insufficient to expand the acceptance of appellant’s claim to include additional lumbar spine
conditions as causally related to the accepted August 2, 2011 employment injury.
The diagnostic testing reports and the FCE lack probative value on this issue of causal
relationship and are thus insufficient to establish the claim as such evidence does not specifically
address whether appellant’s diagnosed conditions are causally related to the August 2, 2011 work
injury.11

9

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Michael S.
Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383, 388 (1994) (the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).
10

Id.

11

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

7

The Board therefore finds that appellant has not submitted sufficient rationalized medical
evidence to establish that the acceptance of appellant’s claim should be expanded to include
additional lumbar spine conditions.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly
compensation.12 In interpreting this section of FECA, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA.13
OWCP has the general objective of ensuring that an employee recovers from his or her
injury to the fullest extent possible in the shortest amount of time. It therefore has broad
administrative discretion in choosing means to achieve this goal. The only limitation on OWCP’s
authority is that of reasonableness.14 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts.15 It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not abused its discretion by denying appellant
authorization for an April 10, 2014 lumbar spine surgery.
OWCP found a conflict in the medical opinion evidence relating to whether appellant’s
claim should be expanded to include lumbar spine conditions. Following an impartial medical
examination and March 29, 2017 report by the IME Dr. Le, it properly determined that the
acceptance of appellant’s claim should not be expanded to include lumbar conditions causally
related to his accepted employment injury and that lumbar spine surgery was not necessary or
appropriate to treat his accepted work-related conditions. Thus, the Board finds that OWCP has
not abused its discretion by denying appellant authorization for the April 10, 2014 lumbar spine
surgery.

12

5 U.S.C. § 8103.

13

See J.B., Docket No. 11-1301 (issued March 22, 2012).

14

Id.

15

Id.

16

See Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

8

The Board further finds that the January 29, 2014 FCE and subsequent diagnostic reports
of record do not constitute competent medical evidence because they do not provide an opinion
from a physician regarding appellant’s need for the April 10, 2014 lumbar spine surgery.17 As
such, appellant did not meet his burden of proof with these submissions.
LEGAL PRECEDENT -- ISSUE 3
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.18 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.19 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.20
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.21 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.22
ANALYSIS -- ISSUE 3
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’s July 28, 2017 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board finds
that he did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of his claim based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of his reconsideration request, appellant submitted reports dated June 19 through
November 17, 2017 from Dr. Paley and July 17 and September 25, 2017 from Dr. Martens. He
also resubmitted MRI scan reports of the lumbar spine dated January 5, 2012 to February 16, 2015.
17

Supra note 16.

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
18

19

20 C.F.R. § 10.607.

20

Id. at § 10.607(a). 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.
21

20 C.F.R. § 10.606(b)(3).

22

Id. at § 10.608(a), (b).

9

The Board finds that submission of this evidence did not require reopening of appellant’s case for
a merit review. As OWCP denied his claim based on the lack of supportive medical evidence to
overcome the special weight of the report of the IME Dr. Le, and because these reports repeat
evidence already in the case record, they are cumulative and do not constitute relevant and
pertinent new evidence. Therefore, the Board finds that they are insufficient to require OWCP to
reopen the claim for consideration of the merits.
Appellant also submitted a July 19, 2017 report from a physical therapist who indicated
that she complained of some on-going lower back irritation and pain as well as some right leg
radiating pain. The Board finds that submission of this report did not require reopening appellant’s
case for merit review because it has no probative value on the underlying issues on reconsideration.
This report does not constitute competent medical evidence because a physical therapist is not
considered a “physician” as defined under FECA.23 Therefore, this document is not relevant and
is insufficient to require a merit review.
As appellant has not provided relevant and pertinent new evidence, he is not entitled to a
review of the merits based on the third requirement under 20 C.F.R. § 10.606(b)(3).
The Board therefore finds that appellant has not met 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 appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional lumbar spine conditions as
causally related to the accepted August 2, 2011 employment injury. The Board further finds that
OWCP has not abused its discretion by denying appellant authorization for an April 10, 2014
lumbar spine surgery. The Board also finds that OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

23

M.G., Docket No. 19-1199 (issued December 19, 2019); L.T., Docket No. 19-0145 (issued June 3, 2019); T.H.,
Docket No. 18-1736 (issued March 13, 2019); see David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law). See also M.O., Docket No. 18-0229 (issued September 23, 2019) (physical therapists are not considered
physicians under FECA).

10

ORDER
IT IS HEREBY ORDERED THAT the November 27 and June 9, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 18, 2020
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

11