United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 18-0222
Issued: June 21, 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 November 9, 2017 appellant, through counsel, filed a timely appeal from an
October 10, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The most recent merit decision was a decision of the Board dated May 18, 2017, which became
final after 30 days of issuance, and is not subject to further review.2 As there was no merit decision
issued by OWCP within 180 days from the filing of this appeal, pursuant to the Federal Employees’

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
20 C.F.R. § 501.6(d); see J.P., Docket No. 17-0053 (issued May 23, 2017); R.M., Docket No. 14-1213 (issued
October 15, 2014).

Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d), the Board lacks
jurisdiction over the merits of this case.
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
This case has previously been before the Board.4 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 13, 2015 appellant, then a 60-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed left knee pain, swelling, weakness, and stiffness
due to lifting, pushing, pulling, standing, and walking required by her federal employment duties.
She first became aware of her left knee condition in November 2011 and first attributed it to her
employment on October 16, 2012.
Appellant underwent a left knee magnetic resonance imaging (MRI) scan on October 16,
2012 which demonstrated extensive horizontal tearing of the lateral meniscus, advanced cartilage
wear in the lateral compartment, joint effusion, and popliteal cyst.
In a development letter dated April 30, 2015, OWCP requested additional factual and
medical evidence from appellant in support of her occupational disease claim. It afforded her 30
days to respond. No response was received.
By decision dated July 1, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had failed to submit the necessary factual and medical evidence to establish her
claim. It noted that she had previously accepted conditions of lumbar sprain and thoracic or lumbar
neuritis or radiculitis under OWCP File No. xxxxxx296.
On July 17, 2015 appellant requested reconsideration of the July 1, 2015 decision. She
noted that she planned to submit additional medical evidence. OWCP did not receive any
additional evidence.
By decision dated October 8, 2015, OWCP denied appellant’s request for reconsideration
of the merits of her claim, finding that she had failed to submit new and relevant evidence or
argument in support of her request for reconsideration.
On April 21, 2016 appellant, through counsel, requested reconsideration. In support of this
request, OWCP received a report dated April 12, 2016 from Dr. Michael E. Hebrard, a Board3

5 U.S.C. § 8101 et seq.

4

Docket No. 16-1743 (issued May 18, 2017).

2

certified physiatrist. Dr. Hebrard noted that OWCP had denied appellant’s claims for right knee
and bilateral hip conditions. He then indicated that regarding her accepted right knee condition5
he reviewed x-rays dated September 5, 2014 which demonstrated severe medial joint line
narrowing in the right knee, and moderate narrowing in the left knee. Dr. Hebrard noted that these
x-rays suggested that there was a preexisting condition of appellant’s knees. He also reviewed her
March 6, 2014 left knee MRI scan and noted the findings of tear of the lateral meniscus, cartilage
wear in the lateral compartment, joint effusion and cyst, preexisting pathology of the left knee.
Dr. Hebrard then described appellant’s work duties of repetitive squatting, bending at the knees
and hips, reaching, pushing, and pulling in order to sort mail. He opined that work-related
repetitive squatting and bending at the knees increased the biomechanical stress along the arthritic
knee joint, increasing inflammation, and overuse of the surrounding muscles to provide structural
support. Dr. Hebrard noted that prolonged sitting increased pressure on the hip and knee joints
and contributed to acceleration of the preexisting condition. He concluded, “It is my opinion with
a reasonable degree of medical certainty that [appellant] had a preexisting condition involving the
knees and hips; that there is causal relationship between her work duties over many years and her
current condition; that the mechanical stresses on the hip and knee joints that were involved as part
of her job, including standing, sitting, stooping, crouching, and bending through the day,
accelerated the preexisting arthritic condition and contributed proximally to her ongoing functional
impairment.” Dr. Hebrard found that appellant had sustained a permanent aggravation of her right
knee and bilateral hip conditions.
By decision dated July 20, 2016, OWCP found that Dr. Hebrard’s April 12, 2016 report
established a diagnosed condition, arthritis of the left knee. However, it determined that he had
not provided rationalized medical opinion evidence describing how appellant’s left knee arthritis
was caused or aggravated by her work duties.
On August 31, 2016 counsel appealed OWCP’s July 20, 2016 decision to the Board, and
by decision dated May 18, 2017,6 the Board affirmed the July 20, 2016 decision. It found that
Dr. Hebrard’s April 12, 2016 report focused on appellant’s right knee and bilateral hip condition
and that he did not describe how the left knee condition was caused or aggravated by appellant’s
federal employment. The Board concluded that this report was not relevant to the current issue of
causation and was of limited probative value regarding this left knee claim.
On July 17, 2017 appellant, through counsel, requested reconsideration and submitted a
report from Dr. Hebrard dated June 27, 2016. Dr. Hebrard summarized his April 12, 2016 report
and added that appellant had an underlying condition of osteoarthritis. He opined that the repetitive
activities of her job were consistent with her symptoms and did, over time, aggravate the
underlying condition. Dr. Hebrard noted that there were no other indications that development of
her symptoms was due to anything other than her letter carrier duties. He determined that
appellant’s duties as a letter carrier contributed to her current condition, and opined, “Repetitive
squatting and bending at the hip and knees, standing, walking, reaching, and lifting required by
her work as a letter carrier using a vehicle can lead to the aggravation of her underlying
5

Dr. Hebrard referenced OWCP File No. xxxxxx433. That claim is not presently before the Board.

6

Supra note 4.

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osteoarthritis/joint disease….” Dr. Hebrard explained that in his opinion an aggravation was a
circumstance or event which permanently worsens a preexisting or underlying condition.
By decision dated October 10, 2017, OWCP denied appellant’s request for reconsideration
on the merits pursuant to 5 U.S.C. § 8128(a). It found that Dr. Hebrard’s report was not relevant
and pertinent new evidence as he did not specifically reference appellant’s claimed left knee
condition.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision.9 When a claimant failed to meet one of the
above standards, OWCP will deny the application for review without reopening the case for a
review on the merits.10
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.11 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.12 When reviewing an
OWCP decision denying merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.13
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.14 The Board has also
held that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case.15 While the reopening of a case may be predicated solely
7
5 U.S.C. § 8128(a). Under section 8128 of FECA, [t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

J.F., Docket No. 17-1508 (issued March 28, 2018).

12

See supra note 8. See also id.; Mark H. Dever, 53 ECAB 710 (2002).

13

J.F., supra note 11; Annette Louise, 54 ECAB 783 (2003).

14

T.H., Docket Nos. 17-1578 & 17-1651 (issued April 26, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).

15

T.H., id.; Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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on a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.16
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).
On July 17, 2017 appellant, through counsel, requested reconsideration of the Board’s
May 18, 2017 decision, which affirmed OWCP’s July 20, 2016 decision denying her occupational
disease claim.17 The underlying issue on reconsideration is medical in nature -- whether appellant
established that the implicated factors of her federal employment caused or contributed to her
claimed left knee condition.
In her July 17, 2017 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under section 10.606(b)(3).18
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of reconsideration. In its May 18, 2017 decision, the Board denied appellant’s
occupational disease claim on the merits because Dr. Hebrard did not describe how appellant’s
left knee condition was caused or aggravated by her federal employment. Dr. Hebrard’s June 27,
2016 report also fails to specifically mention appellant’s alleged employment injury of her left
knee. He did not specifically address the defect identified by the Board in the previous merit
decision. Evidence which does not address the particular issue under consideration does not
constitute a basis for reopening a case.19
The Board accordingly finds that appellant failed to 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.
On appeal counsel contends that there was an unresolved conflict of medical opinion
evidence and that OWCP failed to give due deference to the findings of the attending physician.
He also requests that the Board specifically identify any deficiencies in the medical reports of
record. The Board finds that counsel’s contentions on appeal address the merits of the case which

16

M.E., 58 ECAB 694 (2007).

17

The Board notes that OWCP is not authorized to review Board decisions. Board decisions are not subject to
review except by the Board and they become final after 30 days. Although the May 18, 2017 Board decision was the
last merit decision of record, OWCP’s July 20, 2016 initial denial is the appropriate subject of possible modification
by OWCP. See 20 C.F.R. § 501.6(d).
18

S.J., Docket No. 17-1798 (issued February 23, 2018).

19

Id.

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are not currently before the Board,20 and that there was no basis for reopening appellant’s claim
for consideration of the merits.
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).
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 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

20

Supra note 2.

6


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

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

Docket No. 16-0337
Issued: May 2, 2016

Case Submitted on the Record

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

JURISDICTION
On December 15, 2015 appellant, through counsel, filed a timely appeal from a
November 5, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last OWCP merit decision of November 4,
2014 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 27, 2013 appellant, then a 55-year-old retired expeditor, filed an occupational
disease claim (Form CA-2) alleging that she developed a severe cervical condition as a result of
1

5 U.S.C. § 8101 et seq.

her federal duties. She indicated that she sustained two herniated discs, one bulging disc, and
had a compressed nerve in her neck with resulting severe cervical spinal stenosis. She first
became aware of her condition its relation to her federal employment on March 31, 2010. She
retired from the employing establishment on January 31, 2013.
By letter dated December 17, 2013, OWCP advised appellant that this claim was only for
additional work exposure since April 23, 2010. It noted that appellant had previously filed an
occupational disease claim on April 23, 2010 for the same claimed condition with the same date
of injury, which was assigned claim number xxxxxx692.2 OWCP informed appellant of the
deficiencies in her claim and afforded her 30 days in which to submit additional factual and
medical evidence, including a statement of injury detailing her work exposure and factors of
employment since April 23, 2010, medical evidence containing a work-related diagnosis, and a
medical report from a physician discussing how the diagnosed condition was materially caused
or aggravated by her work exposure since April 23, 2010. Appellant submitted additional factual
and medical evidence.
By decision dated February 10, 2014, OWCP denied the claim, finding that the factual
evidence was insufficient to establish a compensable work exposure from April 23, 2010 to
January 31, 2013. OWCP explained that appellant did not demonstrate that she was required to
work beyond her restrictions as the employing establishment provided accommodating work and
there was no evidence of a worsening of the condition due to the employment.
On February 18, 2014 counsel requested a telephonic hearing from OWCP’s Branch of
Hearings and Review, which was held on August 18, 2014. Appellant testified at the hearing
and provided a September 10, 2014 report from Dr. Paul M. Puziss, a Board-certified orthopedic
surgeon.
By decision dated November 4, 2014, an OWCP hearing representative affirmed
OWCP’s February 10, 2014 decision. The hearing representative found that, while appellant
presented sufficient evidence to establish a factual basis for her claim, none of the examining
physicians offered a rationalized medical opinion addressing the worsening of the condition due
to the accepted employment factors from April 2010 to January 2013.
In a letter dated and received on October 14, 2015, counsel requested reconsideration.
Counsel submitted a September 10, 2014 report from Dr. Puziss, which he contended was not
previously considered.
By decision dated November 5, 2015, OWCP denied reconsideration without reviewing
the merits of the case.

2

OWCP indicated that the claim was ultimately denied.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.5 However, a right to reconsideration
within one year accompanies any subsequent merit decision on the issues. This includes any
hearing or review of the written record decision, any denial of modification following
reconsideration, any merit decision by the Board, and any merit decision following action by the
Board.6 When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.7
ANALYSIS
On October 14, 2015 OWCP timely received appellant’s request for reconsideration of its
November 4, 2014 decision. The question for determination is whether her request met at least
one of the three criteria for obtaining a merit review of her case.
The Board finds that appellant did not establish that OWCP erroneously applied or
interpreted a specific point of law, she did not advance a relevant legal argument not previously
considered by OWCP, and she did not submit relevant and pertinent new evidence not previously
considered by OWCP.
Although counsel argued that Dr. Puziss’ September 10, 2014 report was not previously
considered, the record reflects that it was of record and considered in the hearing representative’s
November 4, 2014 decision. Counsel has offered no explanation as to how OWCP committed an
error and failed to specify any law which OWCP allegedly erroneously applied or interpreted.
Evidence or arguments which are duplicative, cumulative, or repetitive in nature are insufficient
to warrant reopening a claim for merit review.8 Thus counsel’s argument is insufficient to
warrant consideration on the merits.

3

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 USC § 8128(a).
4

20 CFR § 10.606(b)(3).

5

Id. at § 10.607(a).

6

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

7

Id. at § 10.608(b).

8

Denis M. Dupor, 51 ECAB 482 (2000).

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The underlying issue was the medical question of whether appellant has established a
worsening of her condition due to the accepted employment factors from April 2010 to
January 2013. Appellant offered no relevant and pertinent new evidence on reconsideration.
Appellant has not met any of the criteria warranting reopening her claim for further merit
review. Therefore, pursuant to 20 CFR § 10.608, OWCP properly denied merit review.
On appeal counsel argues that OWCP’s decision is contrary to fact and law without
pointing to specific errors. Additionally, the Board does not have jurisdiction over the merits of
the claim on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2016
Washington, DC

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

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

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

4


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

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

Docket No. 18-0396
Issued: August 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 18, 2017 appellant filed a timely appeal from a November 15, 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.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award compensation benefits, effective January 11,
2015, as she refused an offer of suitable work under 5 U.S.C. § 8106(c).
FACTUAL HISTORY
On October 6, 2003 appellant, then a 39-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on October 2, 2003 she tripped on a rubber mat and twisted
her left ankle while pulling down letter trays on a machine. A December 2, 2003 magnetic
1

5 U.S.C. § 8101 et seq.

resonance imaging scan demonstrated fracture of the neck and head of the talus, calcaneal bone
bruise, nondisplaced fractures of the navicular, and cuboid, as well as anterior talofibular ligament
sprain. On February 21, 2006 OWCP accepted appellant’s claim for closed fracture of tarsal and
metatarsal. It later expanded acceptance of her claim to include left ankle tendinitis. Appellant
received intermittent wage-loss benefits on the supplemental rolls commencing February 4, 2006.
On April 24, 2009 Dr. Brett Limkuhler, a clinical neuropsychologist, examined appellant
due to chronic pain and depression. He noted her history of injury and foot pain. Dr. Limkuhler
reported appellant’s history of major depression with suicidal ideation, generalized anxiety
disorder, and chronic dysthymic disorder. He found that her judgement was impaired and that she
did not foresee the consequences of her actions. Dr. Limkuhler opined that appellant’s mental
health was further compromised by the stress of chronic pain, work demands, and her work
environment. He found that she was totally disabled. Dr. Limkuhler opined that appellant was
able to work full time until her 2003 employment injury, but that this injury had a significant
deleterious impact on her mental health.
On January 22, 2010 appellant filed a notice of recurrence of disability (Form CA-2a)
alleging that on January 22, 2010 she stopped work due to disability caused by her October 2, 2003
employment injury. By decision dated April 12, 2010, OWCP accepted that she sustained a
recurrence of disability on January 22, 2010 due to her accepted left foot conditions. Appellant
received wage-loss compensation on the periodic rolls as of April 11, 2010.
On May 21, 2010 Dr. Linda Thornton, a podiatrist, performed left foot surgery for
evacuation of exostosis, evacuation of sinus tarsi, and peroneal tendon repair.
Appellant returned to light-duty work four hours a day on March 5, 2011. By decision
dated November 16, 2011, OWCP reduced her wage-loss compensation based on her actual
earnings as a modified clerk for 20 hours a week.
In a report dated January 11, 2012, Dr. Frank Graf, a Board-certified orthopedic surgeon,
provided a history of injury and examined appellant due to her left foot condition. He noted that
following her 2010 foot surgery she had numbness and tingling in the lateral border of her foot.
Dr. Graf also noted appellant’s left-sided low back pain as well as chronic stress and anxiety. He
diagnosed chronic left foot pain, cutaneous nerve damage in her incision, abnormal gait pattern
with a limp, and inability to heel or toe walk, chronic inflammation of the left sacroiliac joint with
chronic sacroiliac joint pain, and chronic lumbosacral pain secondary to gait disturbance. Dr. Graf
opined that appellant could not work due to her left foot and back conditions as well as her chronic
anxiety. He found that she was totally disabled.
On February 3, 2012 appellant filed a notice of a recurrence of total disability (Form CA2a) alleging that on January 4, 2012 she sustained a recurrence of her October 2, 2003 employment
injury such that she could no longer work four hours a day. By decision dated December 31, 2012,
OWCP determined that she had experienced a recurrence of disability commencing
January 4, 2012. As of March 19, 2013 it again paid appellant on the periodic rolls for temporary
total disability.

2

Dr. Thornton completed a work restriction evaluation (Form OWCP-5c) and opined that
appellant could not return to work in her date-of-injury position, but could work in a seated job.
She diagnosed chronic tendinitis neuritis and opined that appellant was unable to walk or stand.
On October 16, 2013 OWCP referred appellant, a statement of accepted facts (SOAF), and
a list of questions for a second opinion evaluation with Dr. Gilbert Shapiro, a Board-certified
orthopedic surgeon. It requested that he assess her current condition and work capacity and
provide any work restrictions due to her work-related conditions as well as any preexisting
conditions.
In a report dated November 12, 2013, Dr. Shapiro reviewed the SOAF and performed a
physical examination. He found that appellant had an antalgic gait favoring the left leg.
Dr. Shapiro found no atrophy of her left lower extremity, pulses in her foot, and a visible incision
over the sinus tarsi which was exquisitely tender, but no swelling. He reported that appellant’s left
ankle had full range of motion and excellent strength. Dr. Shapiro diagnosed nondisplaced fracture
of the talus, navicular fracture, cuboid fracture, and talofibular ligament sprain, as well as sinus
tarsi strain. He noted that appellant reported back complaints, but found that her back examination
was within normal limits with no neurologic abnormalities. Dr. Shapiro found that her back
condition was not disabling. He noted that appellant had been prescribed mood elevators including
klonopin. Dr. Shapiro did not discuss the impact of her emotional condition on her employment.
He opined that appellant would have difficulty with work requiring walking and standing, but
could perform full-time sedentary seated work.
On November 12, 2013 Dr. Shapiro completed a work capacity evaluation (Form OWCP5c) and opined that appellant was disabled from her date-of-injury position, but could work eight
hours a day. He indicated that she could not squat or kneel and found that she could stand and
walk for one to two hours each.
On January 14, 2014 Dr. Graf continued to find diminished sensibility at the lateral aspect
of appellant’s left ankle as well as segmental sensitivity on manipulation at the base of the
lumbosacral spine at L5-S1. He reported tenderness in the left sciatic notch and tenderness to
palpation and manipulation of the left sacroiliac joint.
On July 29, 2014 the employing establishment offered appellant a limited-duty position as
a modified mail processing clerk. The physical requirements of this position included: lifting up
to 30 pounds; standing and walking for one to two hours each; sitting for six hours intermittently;
twisting for one hour intermittently; reaching for eight hours intermittently, and reaching above
the shoulder for two hours intermittently; grasping for eight hours; as well as pushing and pulling
for two hours; and operating machinery for two hours.
On October 23, 2014 the employing establishment advised OWCP that the offered position
was still available and permanent.
In a letter dated November 7, 2014, OWCP informed appellant that the modified mail
processing clerk position was suitable and afforded her 30 days to accept the position or offer her
reasons for refusal. Appellant did not respond.

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By decision dated December 11, 2014, OWCP terminated her wage-loss compensation and
entitlement to schedule award compensation benefits effective January 11, 2015 in accordance
with 5 U.S.C. § 8106(c)(2).
On December 11, 2015 appellant, through her then counsel, requested reconsideration of
the December 11, 2014 decision. In support of this request, she provided additional medical
evidence from Dr. Graf including a report dated February 4, 2015 opining that she could not return
to her date-of-injury position. On November 11, 2015 Dr. Graf again opined that appellant had
likely developed a secondary lumbosacral condition by reason of gait change.
By decision dated January 20, 2016, OWCP denied modification of the December 11, 2014
termination decision.
On May 16, 2017 appellant filed a schedule award claim (Form CA-7). She submitted a
report dated March 2, 2016 from Dr. Graf. Dr. Graf noted that following her surgery in April 2010
she experienced numbness in the lateral ankle and within three months of the surgery she
developed low back pain. He further noted appellant’s treatment for anxiety and depression.
Dr. Graf found that she had permanent impairments including L5 radiculopathy with motor and
sensory deficits in the left lower extremity resulting in 13 percent permanent impairment of the
left lower extremity, lateral cutaneous nerve deficits result in 5 percent permanent impairment of
the left lower extremity, 5 percent permanent impairment of the left lower extremity due to her
accepted fractures, and 5 percent permanent impairment of the left lower extremity due to chronic
peroneal tendinitis. He combined these impairments to reach 25 percent permanent impairment of
the left lower extremity. Dr. Graf opined that appellant was totally disabled.
By decision dated May 30, 2017, OWCP informed appellant that her schedule award claim
was not payable due to the January 11, 2015 termination as set forth in the December 11, 2014
decision.
On August 11, 2017 appellant requested reconsideration of the May 30, 2017 schedule
award decision and submitted medical records from Dr. Graf. In a form report dated January 11,
2012, Dr. Graf indicated that she could lift up to 20 pounds occasionally and carry up to 10 pounds
occasionally. He attributed these restrictions to appellant’s chronic left foot pain, low back, and
sacroiliac joint pain. Dr. Graf indicated that she could sit for four hours a day, and stand and walk
for one hour a day each. He noted that appellant walked with a cane and found that she could
never climb ladders or crawl. In a form report dated November 11, 2015, Dr. Graf indicated that
she was totally disabled. On February 17, 2016 he found in two separate reports that appellant
could not work as a mail processing clerk or postal clerk due to her foot condition as she could not
ambulate sufficiently to walk or run. Dr. Graf completed a report on April 5, 2016 and diagnosed
chronic peroneal tendinitis, as well as chronic anxiety and depression. In a form report dated
May 2, 2016, he indicated that appellant had work restrictions due to chronic foot and low back
pain.
Appellant also submitted documents regarding her 2015 removal from the employing
establishment. On April 25, 2015 the employing establishment issued a letter of removal finding
that she refused suitable work and misrepresented her physical limitations. In a note dated
February 12, 2016, the employing establishment rescinded the notice of removal effective
immediately. In a letter dated August 4, 2017, a union official noted that appellant’s removal was
4

rescinded on February 12, 2016, finding that she had not refused suitable work or misrepresented
her physical limitations.
By decision dated November 15, 2017, OWCP reviewed the merits of appellant’s claim
and found that the December 11, 2014 termination decision should not be modified.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.2 After it has determined that an employee has disability
causally related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.3 Section
8106(c) of FECA4 provides that a partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by, or secured for the employee is not entitled to
compensation. Section 10.517 of the applicable regulations5 provides that an employee who
refuses or neglects to work after suitable work has been offered or secured for the employee, has
the burden of proof to show that such refusal or failure to work was reasonable or justified, and
shall be provided with the opportunity to make such showing before a determination is made with
respect to termination of entitlement to compensation. To justify termination of compensation,
OWCP must show that the work offered was suitable and must inform appellant of the
consequences of refusal to accept such employment.6 Section 8106(c) 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.7
According to OWCP’s procedure, a job offer must be in writing and contain a description
of the duties to be performed and the specific physical requirements of the position.8 Its regulations
provide factors to be considered in determining what constitutes suitable work for a particular
disabled employee, including the employee’s current physical limitations, whether the work is
available within the employee’s demonstrated commuting area, the employee’s qualifications to
perform such work and other relevant factors.9 The issue of whether an employee has the physical
ability to perform a modified position offered by the employing establishment is primarily a
medical question that must be resolved by medical evidence. All impairments, whether work
related or not, must be considered in assessing the suitability of an offered position.10 Section
2

L.L., Docket No. 17-1247 (issued April 12, 2018); Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

G.R., Docket No. 16-0455 (issued December 13, 2016).

4

5 U.S.C. § 8106(c)(2).

5

20 C.F.R. § 10.517(a).

6

L.L., supra note 2; Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

7

L.L., id.

8

L.L., id.; T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9

L.L., id.; J.J., Docket No. 17-0410 (issued June 20, 2017); Rebecca L. Eckert, 54 ECAB 183 (2002).

10

Id.

5

10.517(a) of FECA’s implementing regulations provides that an employee who refuses or neglects
to work after suitable work has been offered or secured by the employee has the burden of proof
to show that such refusal or failure to work was reasonable or justified.11 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.12
After termination or modification of benefits clearly warranted on the basis of the evidence,
the burden for reinstating compensation benefits shifts to appellant.13
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award compensation benefits, effective January 11,
2015, as she refused an offer of suitable work under 5 U.S.C. § 8106(c)(2).
OWCP accepted appellant’s October 2, 2003 traumatic injury claim for closed fracture of
tarsal and metatarsal as well as left ankle tendinitis. Appellant stopped work on January 4, 2012
and OWCP placed appellant on the periodic rolls. On July 29, 2014 the employing establishment
offered her a limited-duty position as a modified mail processing clerk, which she refused. By
decision dated December 11, 2014, OWCP terminated appellant’s wage-loss compensation and
entitlement to schedule award compensation benefits effective January 11, 2015 as she refused an
offer of suitable work.
The Board finds that OWCP failed to establish that appellant was capable of performing
the position of modified mail processing clerk, given her other medical conditions including major
depression with suicidal ideation, generalized anxiety disorder, and chronic dysthymic disorder.14
OWCP relied on the second opinion report of Dr. Shapiro, who provided work restrictions
based on appellant’s accepted left lower extremity conditions. Dr. Shapiro found that her low back
condition was not disabling and mentioned that she was receiving medication for her emotional
conditions, but did not address whether these emotional conditions and treatments would impact
her return to work. The issue of whether a claimant is able to perform the duties of the offered
employment position is a medical one and must be resolved by probative medical evidence.15
While OWCP found that Dr. Shapiro’s opinion contained sufficient medical rationale to support
that appellant could perform the physical duties later contained in the offered position,16 the Board
finds his opinion lacks sufficient rationale to meet OWCP’s burden of proof. It did not secure a
medical report that reviewed the job offer and provide a reasoned opinion as to its suitability for
11

L.L., supra note 2; Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

12

Id. at § 10.516.

13

L.L., supra note 2; K.J., Docket No. 16-0846 (issued August 18, 2016); Talmadge Miller 47 ECAB 673,
679 (1996); see also George Servetas, 43 ECAB 424 (1992).
14

See S.Y., Docket No. 17-1032 (issued November 21, 2017); D.H., Docket No. 17-1014 (issued October 3, 2017).

15

F.B., Docket No. 17-0216 (issued February 13, 2018); Gayle Harris, 52 ECAB 319 (2001).

16

F.B., id.; Maurissa Mack, 50 ECAB 498 (1999).

6

her, considering all existing and relevant conditions.17 The medical evidence of record, therefore,
fails to establish that the offered position was suitable.
As a penalty provision, section 8106(c)(2) of FECA must be narrowly construed.18 Based
on the evidence of record, the Board finds that OWCP improperly determined that the modified
position offered to appellant constituted suitable work within her physical limitations and
capabilities. Consequently, OWCP did not meet its burden of proof to justify the termination of
her compensation benefits. Therefore, appellant’s claim for a schedule award is no longer
precluded due to the effect of the termination decision.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award compensation benefits, effective January 11,
2015, as she refused an offer of suitable work under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 17, 2018
Washington, DC

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

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

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

17

S.Y., supra note 14.

18

D.H., supra note 14.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Austin, TX, Employer
__________________________________________

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

Docket No. 18-1478
Issued: February 4, 2019

Case Submitted on the Record

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

JURISDICTION
On July 14, 20181 appellant filed a timely appeal from a January 23, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

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 January 23, 2018, the date of OWCP’s last decision, was July 22,
2018, a Sunday; consequently, the period for filing the appeal ran to the next business day, Monday, July 23, 2018.
See 20 C.F.R. § 501.3(f)(2). Since using July 23, 2018, 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 July 14, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of the
compounded drug Unique.
FACTUAL HISTORY
On July 30, 2003 appellant, then a 54-year-old tax examining technician, filed an
occupational disease claim (Form CA-2) alleging tendinitis in both upper extremities as a result of
typing on a computer and performing other repetitive work duties. She advised that she first
became aware of her claimed condition on November 14, 2002 and realized that it was related to
factors of her federal employment on December 1, 2002.3 OWCP accepted that appellant
sustained bilateral lateral epicondylitis and ulnar nerve lesion of her right upper extremity. On
March 22, 2007 appellant underwent OWCP-approved right upper extremity surgery, including
neurolysis of the right ulnar nerve in situ and Marcaine block for postoperative pain control.4
Appellant received treatment for her upper extremity problems from several attending
physicians, and she consistently complained of pain, tingling sensation, and numbness in both
upper extremities (right worse than left). In 2012, she began treating with Dr. Anthony M. Hicks,
an occupational medicine physician, for management of her symptoms. In periodic progress
reports, Dr. Hicks noted appellant’s continuing complaints of pain, tingling sensation, and
numbness in both upper extremities (right worse than left). He diagnosed several upper extremity
conditions, including bilateral epicondylitis and chronic pain syndrome, and prescribed pain
medications.
On January 4, 2017 Dr. Hicks noted that the physical examination he performed on that
date showed that appellant had tenderness to palpation about the medial and lateral epicondyles of
her elbows and equivocal Finkelstein’s, Tinel’s, and Phalen’s tests bilaterally. He indicated that
appellant’s complaints of upper extremity symptoms were virtually the same as those reported in
November 2002 and he prescribed several narcotic medications, Lidoderm patches, and
nonsteroidal anti-inflammatory drugs, including Duexis.
In a January 9, 2017 authorization request form (Form CA-26), Dr. Hicks requested
authorization from OWCP for appellant’s use of Unique, a compounded drug which was topically
administered.5 He noted that other noncompounded medications had failed for treatment of
appellant’s primary diagnosis of lateral epicondylitis in both elbows. Dr. Hicks listed the
components of Unique: gabapentin powder, amantadine hydrochloride (HCL) powder, ketoprofen
3

Appellant did not stop work around the time she filed her claim. She later retired from the employing
establishment, although the precise date of her retirement is unclear from the case record.
4

By decision dated March 18, 2008, OWCP granted appellant a schedule award for 11 percent permanent
impairment of her right upper extremity.
5

In an August 31, 2016 letter, OWCP advised appellant that new authorization procedures for compounded drugs
would be implemented effective October 2016. These new procedures required an attending physician to complete a
Form CA-26 explaining the medical necessity for prescribing compounded drugs. See FECA Bulletin No. 17-01
(issued October 14, 2016).

2

powder, amitriptyline HCL powder, bupivacaine HCL powder, ethoxydiglycol liquid, stera base
cream, and fluticasone propionate micronized powder. In the portion of the form entitled,
“certification of medical necessity,” he indicated that appellant developed a permanent, chronic
pain syndrome and was being successfully treated with a multi-disciplinary drug regime which
included compounded drugs.6 Dr. Hicks noted that compounded topical/transdermal drugs were
the safest drugs because little systemic absorption occurred with their usage and they caused fewer
effects than oral drugs. He opined that the success of appellant’s treatment was due, in large part,
to the use of topical/transdermal drugs. Dr. Hicks advised that appellant reported experiencing,
without exception, increased pain and decreased productive functioning when not using such
drugs. He concluded, “Please facilitate the ongoing usage of medically-required compounded
topical/transdermal medications that have been clinically demonstrated to provide significant pain
relief and improved physical functioning for the sequelae of the OWCP-accepted adjudicated
injuries.”
On February 9, 2017 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon who served as an OWCP medical adviser. It requested that he review
the medical evidence of record, including the January 9, 2016 Form CA-26 of Dr. Hicks, and
provide an opinion regarding whether the compounded drug Unique was necessary to treat
appellant’s employment-related conditions.
In a February 18, 2017 report, Dr. Katz advised that he had reviewed the medical evidence
of record and had determined that he was unable to recommend authorization of Unique for
appellant. He indicated that prescribing compounding pharmaceuticals on a custom basis was
expensive and presented risks to patients with respect to purity, side effects, and adverse reactions
resulting from mixing multiple drugs. Dr. Katz noted that, while each of the substances might
have efficacy in managing pain, it was his opinion that the use of such polypharmacy presented
risks. He asserted that Dr. Hicks failed to present a well-reasoned opinion in support of appellant’s
use of Unique.
In a March 8, 2017 informational letter, OWCP advised appellant that the medical evidence
of record was insufficient to establish that Unique was necessary to treat her accepted employmentrelated conditions and it afforded her 30 days to submit a narrative report from her attending
physician containing an adequate explanation for the necessity of this medication. In response,
appellant submitted a March 27, 2017 report of Dr. Hicks containing the same language supporting
the use of Unique as his previous January 9, 2017 Form CA-26.7
On April 14, 2017 OWCP again referred appellant’s case to Dr. Katz for review in his role
as OWCP medical adviser. On April 18, 2017 Dr. Katz advised that he had reviewed Dr. Hicks’
March 27, 2017 report. He provided essentially the same discussion as contained in his
6

Dr. Hicks noted that this treatment regimen included oral over-the-counter drugs, topical/transdermal over-thecounter drugs, topical/transdermal compounded drugs, prescribed nonsteroidal anti-inflammatory drugs, prescribed
pain relievers, trigger point injections, epidural steroid injections, and other invasive interventions.
7

Appellant continued to submit periodic progress reports of Dr. Hicks. In these reports dated between March and
May 2017, Dr. Hicks detailed the treatment of appellant’s upper extremity condition, noting that there was no change
in her upper extremity symptoms.

3

February 18, 2017 report and he advised that his opinion against appellant’s use of polypharmacy
“in a manner unapproved by the FDA [Food and Drug Administration]” remained unchanged from
his prior report.
By decision dated June 8, 2017, OWCP denied appellant’s request for authorization of the
compounded drug Unique. It found that Dr. Hicks failed to adequately explain why Unique was
necessary to treat appellant’s employment-related medical conditions.
On June 19, 2017 appellant requested a telephonic hearing with a representative of
OWCP’s Branch of Hearings and Review.
OWCP referred appellant for a second opinion examination to Dr. Salvador P. Baylan, a
Board-certified physical medicine and rehabilitation physician. It requested that Dr. Baylan
provide an opinion regarding whether the compounded drug Unique was necessary to treat
appellant’s accepted upper extremity conditions.
In an August 21, 2017 report, Dr. Baylan discussed appellant’s factual and medical history,
including the nature of her accepted employment conditions.8 He detailed the findings of the
physical examination he conducted on that date, noting that appellant exhibited tenderness to
palpation of both medial/lateral epicondyles, and 4/5 strength in the prime elbow movers
bilaterally. Appellant was neurovascularly intact in both elbows/forearms, although a positive
Tinel’s sign was present at the right cubital tunnel. Dr. Baylan noted that gabapentin, a component
of Unique, was used for the treatment of seizures and post herpetic neuralgia and; therefore, its use
for other pain was “off-label.” He indicated that gabapentin was designed for gastrointestinal
absorption with a short shelf life and advised that its application as a topical agent was useless.
Dr. Baylan discussed other components of Unique, noting that amantadine HCL was indicated as
a prophylaxis for inﬂuenza A virus and Parkinsonism, and that any other use of the drug was offlabel. He noted that amantadine HCL was not indicated for appellant due to its questionable
therapeutic effectiveness for pain.
Dr. Baylan further explained that ketoprofen was a nonsteroidal agent for inﬂammation
and noted that, although there were studies documenting transdermal absorption, the
pharmacokinetic effect of topical ketoprofen was unclear. He further noted that amitriptyline was
indicated for depression and chronic neuropathic pain, bupivacaine was an anesthetic used for
chronic pain, ethoxydiglycol was a solvent, stera base was a delivery vehicle, and fluticasone was
a steroid. Dr. Baylan opined that Unique was not really indicated for appellant’s chronic
neuropathic pain. He advised that appellant had reported that she gets by with “neuropathic
supplement” and Duexis, and he opined that she required no further medical treatment. Dr. Baylan
concluded that Unique had questionable therapeutic value with respect to appellant’s chronic
medical condition.
An oral hearing was held before an OWCP hearing representative on November 13, 2017,
during which appellant testified that Dr. Hicks prescribed medications/creams that reduced pain
for a few years, but that these medications/creams later “stopped working.” She noted Dr. Hicks
8
Dr. Baylan noted that appellant reported that the only medications she currently used were “neuropathic
supplement” and Duexis.

4

then prescribed “neopathic [sic] supplement capsules,” which relieved her pain more than anything
else. Appellant described the limitations caused by the pain from her accepted upper extremity
conditions, including limited ability to grip with her hands.9
By decision dated January 23, 2018, OWCP’s hearing representative affirmed OWCP’s
June 8, 2017 decision. She found that the well-reasoned opinion of Dr. Baylan showed that Unique
was not necessary to treat appellant’s accepted upper extremity conditions and that appellant failed
to meet her burden of proof to submit evidence sufficient to support authorization for this
medication.
LEGAL PRECEDENT
Section 8103(a) of FECA states in pertinent part: “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 the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.”10
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.11 The only limitation on OWCP’s authority is that
of reasonableness.12 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.13 It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.14
In order to be entitled to reimbursement of medical expenses, it must be shown that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition.15 Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.16

9

Appellant submitted reports, dated between July and October 2017, in which Dr. Hicks noted that there was no
change in appellant’s upper extremity symptoms.
10

5 U.S.C. § 8103.

11

R.C., Docket No. 18-0612 (issued October 19, 2018); Vicky C. Randall, 51 ECAB 357 (2000).

12

Lecil E. Stevens, 49 ECAB 673, 675 (1998).

13

Rosa Lee Jones, 36 ECAB 679 (1985).

14

Id.

15

J.R., Docket No. 17-1523 (issued April 3, 2018); Bertha L. Arnold, 38 ECAB 282, 284 (1986).

16

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

5

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for authorization of the
compounded drug Unique.
The Board finds that the August 21, 2017 report of Dr. Baylan, an OWCP referral
physician, contains a probative medical opinion that Unique was not appropriate for treating
appellant’s employment-related conditions. Dr. Baylan provided a detailed discussion of the
constituent components of Unique in which he described the specific medical conditions these
components were intended to treat. He explained that several of these components would not be
appropriate for treating the pain symptoms of appellant’s accepted employment-related conditions.
In addition, Dr. Baylan advised that the effectiveness of topical application of some of these
components was limited or nonexistent. For example, he indicated that gabapentin was for the
treatment of seizures and postherpetic neuralgia and; therefore, its use for other pain was offlabel.17 Dr. Baylan noted that amantadine HCL was indicated as a prophylaxis for inﬂuenza A
virus and Parkinsonism, and that any other use of the drug was off-label. He opined that
amantadine HCL was not indicated for appellant due to questionable therapeutic effectiveness for
pain. Dr. Baylan also noted that, although ketoprofen was a nonsteroidal agent for inﬂammation,
the effectiveness of topical application of the drug was unclear. He concluded that Unique had
questionable therapeutic value with respect to appellant’s chronic medical condition and its
associated neuropathic pain.
In support of her claim, appellant submitted January 9 and March 27, 2017 reports in which
Dr. Hicks recommended use of the compounded drug Unique. The Board finds that these reports
are of limited probative value regarding appellant’s request for authorization of Unique because
Dr. Hicks failed to provide a rationalized medical opinion explaining how the drug was necessary
to treat her employment-related medical conditions. Dr. Hicks did not describe the accepted
employment-related conditions (bilateral lateral epicondylitis and ulnar nerve lesion of the right
upper extremity) in any detail, or explain why the recommended compounded drug would
effectively treat these employment-related conditions. He concluded that Unique was the safest
drug that appellant could use for treatment of her medical problems, but he did not provide any
explanation for this conclusion. As noted above, proof of causal relationship that medical
expenditures are incurred for treatment of the effects of an employment-related injury or condition
must include supporting rationalized medical evidence.18
As noted above, OWCP has great discretion in determining whether a particular type of
treatment is likely to cure or give relief and the only limitation on OWCP’s authority is that of
reasonableness.19 In denying appellant authorization for the compounded drug Unique, the Board
finds that OWCP has not abused its discretion given that it has not committed manifest error,

17

Dr. Baylan also indicated that gabapentin was designed for gastrointestinal absorption with a short shelf life and
that its application as a topical agent was useless.
18

See supra notes 14 and 15.

19

See supra notes 10 and 11.

6

engaged in a clearly unreasonable exercise of judgment, or taken actions contrary to both logic
and probable deductions from established facts.20
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 denied appellant’s request for authorization of the
compounded drug Unique.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2019
Washington, DC

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

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

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

20

See supra note 12. During the November 13, 2017 hearing and on appeal, appellant suggested that OWCP should
pay for a medication which is taken orally in capsule form. It does not appear that appellant was referring to the
medication which is the subject of the present appeal because Unique is used topically, rather than orally.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF DEFENSE, GREAT LAKES
NAVAL CENTER, MILITARY MEDICAL
SUPORT OFFICE, Great Lakes, IL, Employer
__________________________________________

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

Docket No. 10-840
Issued: April 25, 2011

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant filed a timely appeal from a July 31, 2009 decision of the
Office of Workers’ Compensation Programs denying her traumatic injury claim. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a stress-related
cerebrovascular accident and congestive heart failure in the performance of duty.
On appeal, appellant contends that medical evidence established a causal relationship
between workplace stress and her cardiovascular conditions. She alleged that her supervisors
were hostile to her because she refused to agree with violations of regulations and policies.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 2, 2008 appellant, then a 61-year-old nurse consultant, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a cerebrovascular accident on June 26, 2008 due
to a workplace stress. She also claimed that, while hospitalized on July 6, 2008, she sustained
congestive heart failure when she learned that the employing establishment provided her husband
a traumatic injury claim form and not one for occupational disease. Appellant asserted that
Supervisors Barbara Clarey, Patricia Maravola and James Whitton engaged in a pattern of racial
discrimination,2 hostility, harassment and unfair disciplinary actions and stole parts of her
occupational health records. She alleged that Mar Mayes, a coworker, spit at her on May 21,
2008 but was not disciplined because Ms. Mayes was Caucasian. Appellant contended that
during a meeting on June 25, 2008, Ms. Clarey and Mr. Whitton told her to “[g]et out we do not
need you any more” because her past uncooperativeness necessitated creating cumbersome
communication policies. On June 26, 2008 Ms. Clarey asked appellant to correct a claim
although she believed that the supervisors mismanaged the case. Appellant experienced leftsided hemiparesis and was taken to the emergency room.
In an August 6, 2008 letter, the Office advised appellant of the additional factual and
medical evidence needed to establish her claim. It requested that she submit a detailed
description of all work incidents alleged to have caused or contributed to the claimed conditions.
The Office emphasized the importance of submitting a report from an attending physician
explaining how and why the identified work factors caused the claimed stroke and congestive
heart failure.
In an August 19, 2008 letter, the employing establishment controverted the claim and
submitted supervisory statements. Ms. Maravola provided May 27 and July 28, 2008 letters
noting that on May 21, 2008 appellant accused Ms. Mayes of spitting on her. As appellant
refused to provide a written statement, she could not take further action. Ms. Maravola
explained that each of appellant’s suspensions was warranted by her failure to follow direct
orders or for unprofessional conduct. She provided April 23, 2004 and August 2 and 4, 2005
disciplinary letters advising appellant that she was “out of control.” Ms. Maravola also
submitted complaint letters regarding conduct that resulted in disciplinary action: an April 30,
2001 letter from a hospital official alleging that appellant became abusive when staff refused her
demands for confidential patient information; an October 6, 2003 customer letter alleging that
she was rude and unprofessional on the telephone; a March 23, 2004 contractor letter noting that
appellant criticized how her supervisors managed claims; an August 3, 2005 letter from a clinical
manager alleging that she accused contractors and coworkers of trying to get her fired; and an
April 13, 2007 letter from a commander alleging that appellant was rude to him on the telephone.
Ms. Clarey explained in June 25 and September 8, 2008 statements that she met with
appellant and Mr. Whitton on June 25, 2008 because appellant entered improper remarks against
her coworkers in a patient’s file. She provided a printout of the entry, in which appellant
accused two coworkers of altering a code she had entered, then reporting her to a supervisor.

2

Appellant herself identified as Filipino-American.

2

Mr. Whitton provided July 2 and August 15, 2008 letters asserting that, at the June 25,
2008 meeting, appellant constantly interrupted him and alleged a management conspiracy against
her. He noted that Ms. Clarey dealt calmly with appellant’s repeated outbursts.
In a May 23, 2008 letter, Ms. Mayes stated that on May 21, 2008 appellant yelled at her
to “shut up” and “sit down” then accused coworkers of conspiring against her.
Appellant submitted medical evidence. In a July 2, 2008 report, Dr. Shilpa Bamrolia, an
attending Board-certified internist, noted a June 26, 2008 cerebrovascular accident with
symptom onset while at work. Appellant had a history of hypertension and diabetes mellitus.
By decision dated October 7, 2008, the Office denied appellant’s claim on the grounds
that fact of injury was not established. It found that she failed to establish her allegations of a
hostile work environment, harassment and discrimination as factual. The Office further found
that appellant did not establish that an employee spit at her on May 21, 2008 or that the
supervisors stole her health records. It further found that the June 25, 2008 meeting was an
administrative matter and that no error or abuse was shown.
In an October 27, 2008 letter, appellant requested reconsideration. She submitted
additional medical evidence. Dr. Z. Mark Hongs, an attending physiatrist, noted in July 11 and
23, 2008 reports that appellant experienced neurologic symptoms after an argument at work on
June 25, 2008, then developed congestive heart failure while hospitalized on July 7, 2008 when
she became upset. In a March 10, 2009 report, Dr. Miloslava M. Kyncl, an attending Boardcertified internist, opined that her stressful and argumentative environment at work contributed
to appellant’s stroke and congestive heart failure. Dr. Benjamin Lumicao, an attending Boardcertified cardiologist, opined on March 20, 2009 that appellant’s stroke was precipitated by an
“emotional outburst in her office.”
In a June 24, 2009 letter, Mr. Whitton stated that Ms. Clarey remained calm at the
June 25, 2008 meeting and said nothing to provoke appellant; however, she became agitated and
accused her supervisors of conspiring against her. He noted that appellant had been moved
between sections as she could not interact professionally with customers or coworkers.
Mr. Whitton submitted a December 3, 2003 customer complaint letter describing her rude,
threatening behavior at work.
In a July 17, 2009 letter, appellant alleged that her supervisors’ statements were gossip
and hearsay.
By decision dated July 31, 2009, the Office denied modification, finding that appellant
failed to establish any compensable factor of employment. It further found that she had not
established any error or abuse regarding the administrative matters of case management methods,
the June 25, 2008 meeting and disciplinary suspensions. The Office found that appellant failed
to establish any compensable factor of employment.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
3

illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.3 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS
Appellant claimed that she sustained a cerebrovascular accident due to stress from four
disciplinary suspensions, a June 25, 2008 job discussion and dissatisfaction with her supervisor’s
coding instructions on June 26, 2008. She also claimed that she sustained congestive heart
failure on July 2, 2008 because the employing establishment gave her husband the wrong claim
form. The Office found these incidents were noncompensable as they were administrative
matters that did not occur in the performance of duty. The Board must review whether these
alleged incidents and conditions are covered employment factors under the terms of the Act.
Appellant attributed her condition, in part, to a June 25, 2008 meeting at which her
supervisors allegedly yelled at her to “get out.” Supervisors Clarey and Whitton explained that
the meeting was a job performance discussion regarding an improper entry appellant made in a
patient’s file. The Board has characterized supervisory discussions of job performance as
administrative or personnel matters of the employing establishment, which are covered only
when a showing of error or abuse is made.7 In determining whether the employing establishment
erred or acted abusively, the Board has examined whether the employing establishment acted

3

5 U.S.C. §§ 8101-8193.

4

See Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
5

See Norma L. Blank, 43 ECAB 384 (1992).

6

Id.

7

Roger W. Robinson, 54 ECAB 846 (2003).

4

reasonably.8 To support such a claim, a claimant must establish a factual basis by providing
probative and reliable evidence.9 In this case, appellant did not submit any witness statements
corroborating her version of events. Supervisors Clarey and Whitton submitted several
statements asserting that they remained calm during the meeting but appellant became
confrontational. These accounts tend to disprove appellant’s version of events. As appellant did
not establish any administrative error or abuse regarding the June 25, 2008 job discussion, she
did not establish a compensable factor of employment in this respect.
Appellant also claimed that her condition was due to her frustration with the way
Ms. Clarey processed a claim on June 26, 2008. However, an employee’s dissatisfaction with
the way a supervisor performs duties or exercises discretion in assigning work is not
compensable absent error or abuse.10 Appellant did not submit evidence of error or abuse by
Ms. Clarey in processing the claim. Therefore, she has not established a compensable
employment factor in this regard.
Appellant also attributed her condition, in part, to being suspended four times for
misconduct, although one suspension was later rescinded. The Board has held that disciplinary
actions relate to administrative or personnel matters of the employing establishment, unrelated to
the employee’s regular or specially assigned work duties and do not fall within the coverage of
the Act unless error or abuse is shown.11 Also, rescission of a disciplinary action by itself does
not establish error or abuse.12 In this case, appellant’s supervisors submitted numerous
complaint letters from customers and contractors attesting to her unprofessional behavior from
2001 to 2007. Ms. Maravola asserted that appellant’s conduct warranted the suspensions given.
The Board has reviewed this evidence and finds that appellant’s supervisors acted reasonably in
issuing the suspensions. Appellant has not established any error or abuse regarding these
disciplinary matters. Therefore, she has not established a compensable factor in this regard.
Appellant also contended that she sustained congestive heart failure due to stress because
the employing establishment gave her husband a traumatic injury claim Form CA-1 instead of an
occupational disease Form CA-2. Although handling of a compensation claim is generally
related to the employment, it is an administrative function of the employing establishment and
not a duty of the employee and not compensable absent evidence of error or abuse.13 In this
case, the employing establishment was attempting to assist appellant by giving her husband a
claim form while she remained hospitalized. Also, it was not yet clear if appellant asserted a
traumatic injury or an occupational disease. Therefore, it was reasonable for the employing
establishment to select one of the two forms. There was no error or abuse demonstrated.
8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

See Barbara J. Nicholson, 45 ECAB 843 (1994).

10

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

11

Robert Breeden, 57 ECAB 622 (2006).

12

Paul L. Stewart, 54 ECAB 824 (2003); Mary L. Brooks, 46 ECAB 266, 274 (1994).

13

David C. Lindsey, 56 ECAB 263 (2005).

5

Appellant also alleged a series of incidents that the Office found were not established as
factual. She alleged that on May 21, 2008 a coworker spit at her. Ms. Mayes submitted a
May 27, 2008 letter detailing appellant’s May 21, 2008 outburst but did not mention spitting.
This statement tends to refute appellant’s account of events. Similarly, appellant contended that
the employing establishment stole her medical records. However, she submitted no evidence
corroborating this accusation. The Board has held that mere allegations, in the absence of factual
corroboration, are insufficient to meet a claimant’s burden of proof.14 Thus, appellant has failed
to establish these allegations as factual.
Appellant also attributed her condition to a pattern of harassment and discrimination by
her supervisors. Discrimination and harassment by supervisors, if established as occurring and
arising from the employee’s performance of his or her regular duties, could constitute
employment factors.15 To give rise to a compensable disability under the Act, there must be
probative and reliable evidence that the intimidation and harassment did in fact occur.16 Mere
perceptions of harassment or discrimination are not compensable under the Act.17 In this case,
appellant did not submit witness statements or other evidence corroborating any incident of
discrimination or harassment by a supervisor. Also, Ms. Maravola explained on August 19, 2008
that she could not take action against Ms. Mayes for allegedly spitting at appellant because she
would not submit a requested written statement. This refutes appellant’s allegation that
Ms. Maravola did not discipline Ms. Mayes because she was Caucasian. Thus, she has not
established her allegations of harassment and discrimination as factual.
On appeal, appellant asserts that medical evidence submitted on reconsideration
established a causal relationship between workplace stress and her cardiovascular conditions.
However, as she has not established any compensable work factors, the Board need not consider
the medical evidence of record.18 Appellant also alleged that her supervisors were hostile to her
because she refused to agree with their violations of regulations and policies. As stated, she did
not establish any incidents of hostility or harassment by her supervisors. Appellant did not
establish any compensable employment factor. Therefore, the Office properly denied her claim.
Appellant also contended that the Office violated the U.S. Constitution by accepting the
testimony of single witnesses. However, the Board does not have jurisdiction to review
constitutional issues.19

14

Bonnie Goodman, 50 ECAB 139 (1998).

15

Janice I. Moore, 53 ECAB 777 (2002).

16

Marlon Vera, 54 ECAB834 (2003).

17

Kim Nguyen, 53 ECAB 127 (2001).

18

Margaret S. Krzycki, 43 ECAB 496 (1992).

19

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

6

CONCLUSION
The Board finds that appellant has not established that she sustained a stress-related
cerebrovascular accident and congestive heart failure in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 31, 2009 is affirmed.
Issued: April 25, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Danville, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1392
Issued: January 24, 2013

Case Submitted on the Record

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

JURISDICTION
On June 4, 2012 appellant, through her attorney, filed a timely appeal from the May 8,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim for schedule award compensation. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
permanent impairment to her legs.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on December 9, 2009 appellant, then a 45-year-old nursing
assistant, sustained left shoulder, left upper arm and lumbar strains and lumbar spondylosis when
she was assaulted by a patient at work.2 Appellant stopped work on December 9, 2009 but
returned to light-duty work about a week later.
In a December 14, 2009 report, Dr. Christine M. Cisneros, an attending Board-certified
preventive medicine physician, noted that appellant reported low back pain with no pain
radiating into her legs. Physical examination revealed negative straight leg raise bilaterally. On
December 17, 2009 Dr. Cisneros noted that appellant reported that her pain was confined to the
small of her back. On examination, appellant’s back muscles were supple and she exhibited
good flexion and extension. Dr. Cisneros observed negative straight leg raising bilaterally on
other office visits, including a visit on January 4, 2010.
Magnetic resonance imaging scan testing of appellant’s lumbar spine obtained on
January 7, 2010 revealed a prior left laminectomy at the L5-S1, disc bulging at the L4-5 and a
right ovarian cyst. Dr. Cisneros noted that, by February 2010, appellant began to report pain
radiating from her back down into her left leg. Electromyogram (EMG) testing from March 8,
2010 showed mild root irritation at the L4-5 and L5-S1 roots, with no indication of neuropathy
or entrapment of the sciatic nerve.
By report dated March 31, 2010, Dr. Cisneros noted that on physical examination
appellant’s movements were relatively fluid. She was tender to palpation over the left S1 area,
but there was normal appreciable muscle spasm and she showed no distress with prolonged
sitting. Dr. Cisneros stated that she was struck by the changes in appellant’s complaints. For
example, she felt that she was initially dealing with a piriformis or an obturator syndrome, but
now she was addressing appellant’s sacroiliac joint discomfort. Given these new complaints,
Dr. Cisneros was confused by appellant’s ability to sit comfortably in the clinic.
In an April 22, 2010 report, Dr. Victoria Johnson, an attending Board-certified physical
medicine and rehabilitation physician, advised that appellant had a full range of back motion on
flexion, extension and lateral bending. Straight leg raising reproduced back pain on the left, but
was negative on the right and appellant had 5/5 strength in her leg muscles. Dr. Johnson
diagnosed lumbar spondylosis without radiculopathy. On May 17, 2010 she noted that appellant
had returned to work without physical restrictions and was doing well. On examination,
Dr. Johnson found no tenderness in the lumbar paraspinals. On September 27, 2010 she
indicated that appellant had reached maximum medical improvement. Dr. Johnson suggested
that appellant undergo a functional capacity evaluation.
In a July 2, 2011 report, Dr. William Grant, an attending Board-certified internist, stated
that appellant described constant painful discomfort in her lumbosacral spine with painful
paresthesias radiating down her left leg and occasional painful numbness radiating down her
right leg. There was a positive straight leg test on the left at 15 degrees and on the right at 25
degrees. Dr. Grant diagnosed sprain of the lumbosacral joint/ligament, left shoulder sprain,
2

Appellant indicated that she fell to the floor with the combative patient.

2

upper arm sprain and lumbosacral spondylosis. He opined that appellant had 25 percent
permanent impairment of her left leg and 9 percent permanent impairment of her right leg under
the standards of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). Dr. Grant made reference to Table
16-12 on page 535 indicating that appellant had a class 2 moderate motor deficit of the sciatic
nerve on the left and a class 1 mild motor deficit of the sciatic nerve on the right.
On September 15, 2011 appellant filed a claim for a schedule award due to her accepted
injuries.
On September 20, 2011 OWCP referred the claim to Dr. Sanjai Shukla, a Board-certified
orthopedic surgeon serving as an OWCP medical adviser, for review and a rating of permanent
impairment due to appellant’s work injuries.
By report dated September 25, 2011, Dr. Shukla reviewed Dr. Grant’s report and advised
that it did not establish that appellant had a ratable impairment due to the accepted injuries. He
noted that Dr. Grant’s July 2011 findings were not supported by the medical evaluations
presented by the physicians of record. Dr. Shukla stated that Dr. Johnson had indicated negative
straight leg tests for pain radiating down into the legs. He further noted that she found that
appellant had 5/5 strength in her leg muscles and that she had diagnosed lumbar spondylosis
without radiculopathy. Dr. Shukla stated:
“Using the spine physician’s evaluation, [appellant] does n[o]t have a ratable
impairment. She has full strength, a normal gait and the ability to toe walk
without difficulty. Impairment for both lower extremities is zero percent
“This rating differs from Dr. Grant’s mainly because of the discrepancies in
physical examination. This rating was based on the evaluation by a spine
physician.”
By decision dated November 3, 2011, OWCP denied appellant’s schedule award claim on
the grounds that she did not submit sufficient medical evidence to establish permanent
impairment due to her work injuries. It noted discrepancies in Dr. Grant’s report and that the
weight of the medical opinion evidence rested with the opinion of Dr. Shukla.
Appellant disagreed with OWCP’s decision and requested an oral hearing before an
OWCP hearing representative. At the February 9, 2012 hearing, she was represented by counsel.
Appellant testified as to the history of her injury. She advised that although Dr. Johnson
diagnosed lumbar spondylosis without radiculopathy, she told Dr. Johnson that she did have
radiating pain. Appellant testified that she did not have any back injury after the December 2009
injury event in the instant claim. Counsel argued that Dr. Grant did not have to delineate what
findings might be due to preexisting conditions. He claimed that an OWCP medical adviser was
only supposed to accept the findings as reported by a physician and then determine whether the
calculations were correct based upon those findings.
In a May 8, 2012 decision, OWCP’s hearing representative affirmed the November 3,
2011 decision denying appellant’s claim for schedule award compensation.

3

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim, including that he sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.3
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.4
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. The A.M.A., Guides has
been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.7 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.8
It is well established that in determining the amount of a schedule award for a member of the body
that sustained an employment-related permanent impairment, preexisting impairments of the body
are to be included.9
ANALYSIS
OWCP accepted that on December 9, 2009 appellant sustained left shoulder, left upper
arm and lumbar strains and lumbar spondylosis when she was assaulted by a patient at work.
Appellant submitted a July 2, 2011 report of Dr. Grant, an attending Board-certified internist and
filed a claim for a schedule award due to her accepted work injuries. In November 3, 2011 and
3

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

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

9

See Dale B. Larson, 41 ECAB 481, 490 (1990).

4

May 8, 2012 decisions, OWCP denied her schedule award claim finding that the medical
evidence did not establish that she had impairment related to employment factors.
Appellant was treated by Dr. Cisneros, a Board-certified preventive medicine physician,
and Dr. Johnson, a Board-certified physical medicine and rehabilitation physician. They
reportedly found in the months following her December 9, 2009 work injury that she did not
have radicular symptoms in her legs. These findings were based on diagnostic testing (including
EMG testing) and physical examination findings (including straight leg testing). Appellant did
not complain of left leg radicular symptoms until February 2010.
In support of her schedule award claim, appellant submitted a July 2, 2011 report, from
Dr. Grant who found that she had 25 percent permanent impairment of her left leg and 9 percent
permanent impairment of her right leg under the sixth edition of the A.M.A., Guides.10 Dr. Grant
indicated in the physical findings portion of his report that appellant had positive straight leg
tests bilaterally. However, his opinion on impairment is of diminished probative value because
he failed to provide adequate medical rationale explaining how the observed deficits were related
to the accepted work injuries. Dr. Grant gave no indication of having reviewed appellant’s prior
medical records with regard to the accepted injuries or previous diagnostic testing. He did not
explain how the findings of Dr. Cisneros and Dr. Johnson comported with his apparent belief
that appellant’s radicular symptoms in July 2011 were related to her December 9, 2009 work
injuries.11
On September 25, 2011 Dr. Shukla, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, reviewed the record and determined that there was insufficient evidence
to support that the impairment reported by Dr. Grant would be due to appellant’s accepted
injuries, as the findings were not consistent with those of her prior treating physicians. He
advised that there was no evidence of impairment due to the accepted injuries. The Board finds
that OWCP properly relied on the report of Dr. Shukla in denying appellant’s schedule award
claim as he provided a review of the medical evidence and provided reasoning for his conclusion
that she had sustained no permanent impairment due to the accepted injuries.
For these reasons, appellant did not show that she was entitled to schedule award
compensation and OWCP properly denied her claim. She may request a schedule award or
increased schedule award based on evidence of a new exposure or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment.

10

Dr. Grant made reference to Table 16-12 on page 535 indicating that appellant had a class 2 moderate motor
deficit of the sciatic nerve on the left and a class 1 mild motor deficit of the sciatic nerve on the right.
11

Counsel suggested that appellant had preexisting leg impairment that should be included in any impairment
rating evaluation, but the medical record does not support such a finding in the present case. See supra note 9.
Furthermore, the Board has held that where the claimant did not demonstrate any permanent impairment caused by
the accepted occupational exposure, the claim was not ripe for consideration of any preexisting impairment.
Thomas P. Lavin, 57 ECAB 353 (2006).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to schedule award compensation for permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 24, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6