United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, LUGONIA STATION
POST OFFICE, Redlands, CA, Employer
__________________________________________

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

Docket No. 20-0335
Issued: August 7, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 30, 2019 appellant filed a timely appeal from a July 12, 2019 merit decision
and an August 7, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation benefits, effective July 12, 2019, as she no longer had residuals or
disability causally related to her accepted left wrist condition; (2) whether appellant has met her
burden of proof to establish continuing employment-related disability causally related to her
1

The Board notes that following the August 7, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

accepted left wrist condition on or after July 12, 2019; and (3) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 24, 2017 appellant, then a 35-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed left wrist pain due to factors of her federal
employment including repetitively lifting parcels, grasping, casing, and delivering mail. She
indicated that she first became aware of her condition and realized its relationship to her federal
employment on October 19, 2017. Appellant stopped work on October 20, 2017. OWCP accepted
her claim for left wrist sprain. It paid wage-loss compensation on the supplemental rolls, effective
November 1, 2017.
In a March 2, 2018 work status report, Dr. Keith R. Wresch, who specializes in family and
occupational medicine, released appellant from his care and reported that she could return to full
duty with no restrictions or limitations.
In a March 21, 2018 rehabilitation action report, the vocational rehabilitation counselor
indicated that appellant had not yet returned to work because she was on maternity leave as of
March 17, 2018.
On September 19, 2018 appellant underwent a left wrist magnetic resonance imaging
(MRI) scan, which revealed tenosynovitis of the first extensor compartment tendon or
de Quervain’s tenosynovitis, a volar ganglion cyst, a small four millimeter (mm) volar ganglion
cyst, sprain of ulnar attachment of triangular fibrocartilage, and a five mm area of bone contusion.
In a September 25, 2018 report, Dr. Shaheen Zakaria, who specializes in general surgery,
noted appellant’s complaints of continued left wrist pain, which was exacerbated by repetitive
hand use. She noted that the left wrist MRI scan showed small ganglion cysts, extensor
tenosynovitis, and sprain of the triangular fibrocartilage complex. Examination of her left wrist
revealed tenderness on the extensor surface. Dr. Zakaria diagnosed left wrist tenosynovitis and
left wrist sprain. She recommended that appellant work light duty with restrictions for her left
wrist, including no gripping and grasping, limited pushing and pulling up to 10 pounds, and no
repetitive motion of the left hand.
In reports dated October 16 and November 13, 2018, Dr. Ramy Elias, a Board-certified
orthopedic surgeon, noted appellant’s complaints of left wrist pain, numbness, and tingling. He
indicated that appellant worked as a letter carrier, which required repetitive work with her left
hand. Upon examination of appellant’s left wrist, Dr. Elias observed positive tenderness diffusely,
no swelling, and full range of motion. He diagnosed left wrist tendinitis and mild carpal tunnel
syndrome. Dr. Elias reported that, based on appellant’s history and examination, it appeared that
she sustained an injury to her left wrist arising out of and caused by her industrial exposure. In the
November 13, 2018 status note, he indicated that appellant could return to work with restrictions
of working for six hours per day, no gripping and grasping with the left hand, and no commercial
driving.

2

On November 24, 2018 appellant returned to part-time, modified duty working for six
hours per day. OWCP paid wage-loss compensation on the supplemental rolls for the remaining
two hours of the day beginning November 24, 2018.
In a December 11, 2018 impairment rating and progress report, Dr. Elias reviewed
appellant’s medical and employment history and noted that he examined her for follow up of a left
wrist injury. Upon examination of her left wrist, he observed tenderness over the first dorsal
compartment and full range of motion. Dr. Elias diagnosed left de Quervain’s tendinitis with
failure of conservative treatment. He reported that appellant’s condition had reached maximum
medical improvement (MMI) as of the date of his report. Dr. Elias indicated that she would be
discharged from his care with permanent prophylactic restrictions. He completed a work status
note in which he found that appellant could return to work for six hours per day, with no gripping
or grasping with the left hand, and no commercial driving.
By notice dated June 6, 2019, OWCP proposed to terminate appellant’s wage-loss
compensation benefits because she no longer had disability causally related to her accepted left
wrist condition. It found that the weight of the medical evidence rested with the December 11,
2018 report of Dr. Elias who indicated that appellant had no objective findings to support ongoing
disability. OWCP noted that Dr. Elias provided prophylactic work restrictions, which were not
compensable.
Appellant submitted a progress report and work activity status report dated July 2, 2019 by
Dr. Elias. He indicated that he was treating appellant for follow-up of left wrist de Quervain’s
tendinitis. Examination of appellant’s left wrist revealed tenderness diffusely and full range of
motion. Dr. Elias diagnosed left de Quervain’s tendinitis and flexor carpi radialis tendinitis. He
noted that appellant was released from his care and could return to modified duty with restrictions
of limited use of the left hand up to six hours per day, lifting up to five pounds, pushing and pulling
up to five pounds, no commercial driving, and no gripping or grasping of the left hand.
Appellant also continued to submit claims for wage-loss compensation (Form CA-7) dated
June 5 to July 5, 2019.
By decision dated July 12, 2019, OWCP finalized the termination of appellant’s wage-loss
benefits, effective that date. It found that the weight of medical evidence rested with Dr. Elias,
appellant’s treating physician, who concluded in his December 11, 2018 report that appellant no
longer had continuing disability causally related to her accepted left wrist injury.
On July 24, 2019 appellant requested reconsideration.
OWCP received a work status report from a physician assistant dated November 8, 2017,
which indicated a diagnosis of left wrist tendinitis. Appellant provided a handwritten notation
explaining that this note was when the diagnosis changed to tendinitis of the left wrist.
Appellant also resubmitted a March 2, 2018 work status report by Dr. Wresch, which
indicated a diagnosis of left wrist tendinitis. She included a handwritten notation that the diagnosis
remained throughout this date when she was released from care.

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By decision dated August 7, 2019, OWCP denied appellant’s request for reconsideration
of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
termination or modification of benefits.2 It may not terminate compensation without establishing
either that the disability has ceased or that it is no longer related to the employment.3 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective July 12, 2019.
OWCP accepted appellant’s occupational disease claim for a left wrist sprain. Appellant
stopped work and returned to part-time, modified duty working six hours per day on
November 24, 2018. By decision dated July 12, 2019, OWCP terminated her wage-loss
compensation benefits based on the opinion of Dr. Elias, appellant’s treating physician, who
reported that appellant would be discharged from his care with permanent prophylactic restrictions.
In a December 11, 2018 impairment rating and progress report, Dr. Elias reviewed
appellant’s medical and employment history. He conducted an examination and diagnosed left
de Quervain’s tendinitis. Dr. Elias reported that appellant had reached MMI that date and would
be discharged from his care with permanent prophylactic restrictions. He completed a work status
note, which reported that appellant could work with restrictions of working six hours per day, no
gripping or grasping with the left hand, and no commercial driving.
The Board has held that the weight of a medical opinion is determined by the opportunity
for and thoroughness of examination, the accuracy and completeness of the physician’s knowledge
of the facts of the case, the medical history provided, the care of analysis manifested, and the
medical rationale expressed in support of stated conclusions.5 Herein, the Board finds that
Dr. Elias did not provide any medical reasoning or explanation for why appellant’s partial
disability had ceased. Although Dr. Elias reported that appellant was released from his care with
prophylactic work restrictions, he offered no supporting medical rationale to establish that
appellant’s work restrictions of working up to six hours per day, with no gripping or grasping with
the left hand, and no commercial driving were no longer related to her accepted left wrist condition.
2
A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
3

A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54
ECAB 734 (2003).
4

R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

5

J.J., Docket No. 15-0475 (issued September 28, 2016).

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Thus, the Board finds that Dr. Elias’ opinion on disability is conclusory in nature and lacks
sufficient medical rationale to justify termination of appellant’s wage-loss compensation benefits.6
The Board thus finds that OWCP has not met its burden of proof to establish that appellant
was no longer partially disabled, effective July 12, 2019, due to her accepted condition.7
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective July 12, 2019.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: August 7, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6

See L.D., Docket No. 19-0308 (issued July 24, 2019); see also S.W., Docket No. 18-0005 (issued May 24, 2018).

7
In light of the disposition of the first issue, the second issue regarding appellant’s continuing disability and the
third issue regarding denial of appellant’s reconsideration request are moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Portland, OR,
Employer
__________________________________________

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

Docket No. 15-1822
Issued: November 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 4, 2015 appellant filed a timely appeal of an August 4, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed since the last merit decision on November 19, 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 case.
ISSUE
The issue is whether appellant abandoned her request for a hearing before an OWCP
hearing representative.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has previously been before the Board. Appellant filed a Form CA-2
occupational disease claim on July 14, 2010 alleging that she sustained an emotional condition as
a result of her federal employment as a computer support worker. OWCP denied the claim by
decision dated November 4, 2010. On November 29, 2010 appellant advised OWCP of an
address change from Portland, Oregon to Las Vegas, Nevada. In an order dated December 12,
2011, the Board remanded the case to OWCP for a proper decision.2 The Board found that
OWCP had not made adequate explanation for its findings as to the compensability of alleged
work factors, and also noted that OWCP had not addressed some of the allegations.
By decision dated November 4, 2014, OWCP again denied the claim, finding that as
appellant had not established compensable work factors, she did not sustain an emotional
condition in the performance of duty. The decision was mailed to appellant at a Portland,
Oregon address. On November 19, 2014 OWCP reissued the decision to the last known address
in Las Vegas, NV.
In a letter postmarked November 24, 2014, and received on December 2, 2014, appellant
requested an oral hearing before an OWCP hearing representative. By letter dated December 2,
2014, addressed to appellant’s last known address in Las Vegas, NV, the Branch of Hearings and
Review acknowledged receipt of appellant’s request for an oral hearing. Appellant was advised
that if the case was in posture for hearing, she could expect the case to appear on a hearing
docket within six to eight months.
The record contains a memorandum of telephone call (Form CA-110) dated April 13,
2015, indicating that appellant had inquired as to the status of her hearing request. Appellant
stated that she had not received any communication from OWCP’s Branch of Hearings and
Review. A Form CA-110 dated April 14, 2015 indicated that appellant was advised that the case
had not yet been assigned to a hearing representative or placed on the hearing docket. OWCP
confirmed that appellant’s last known address remained correct. The record contains a Form
CA-110 dated April 24, 2015 indicating that appellant had spoken to the Branch of Hearings and
Review, but she asserted they were not helpful regarding a hearing date.
By letter dated June 10, 2015, mailed to appellant’s last known address, appellant was
advised that a hearing was scheduled for July 15, 2015 at 3:45 p.m. OWCP indicated that the
hearing would be conducted by telephone conference and appellant was provided a telephone
number and pass code. The record contains no further communication from appellant.
By decision dated August 4, 2015, an OWCP hearing representative determined that
appellant had abandoned her request for a hearing. He indicated that appellant had not contacted
OWCP either prior to or following the scheduled hearing on July 15, 2015.

2

Docket No. 11-937 (issued December 12, 2011).

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LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.3 Unless otherwise directed in writing by the claimant, OWCP’s
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.4
OWCP procedures provide that a claimant who fails to appear at a scheduled hearing may
request in writing within 10 days after the date set for the hearing that another hearing be
scheduled. Where good cause for failure to appear is shown, another hearing will be scheduled
and conducted by teleconference.5 The failure of the claimant to request another hearing within
10 days, or the failure of the claimant to appear at the second scheduled hearing without good
cause shown, shall constitute abandonment of the request for a hearing.6 Where it has been
determined that a claimant has abandoned his or her right to a hearing, OWCP’s Branch of
Hearings and Review will issue a formal decision finding that the claimant has abandoned his or
her request for a hearing.7
ANALYSIS
Appellant timely requested a hearing before an OWCP hearing representative with
respect to the November 19, 2014 OWCP decision denying her claim for compensation. He was
notified by letter dated June 10, 2015 addressed to her last known address, that a hearing was
scheduled for July 15, 2015. It is well established that, in the absence of evidence to the
contrary, it is presumed that a notice mailed to an addressee in the ordinary course of business
was received by the addressee.8
The record indicates that appellant did not participate in the scheduled telephone hearing
or contact OWCP prior to the scheduled hearing. In addition, appellant did not request, within
10 days of the scheduled hearing, that another hearing be scheduled.9 Under these
circumstances, OWCP properly determined that appellant abandoned her request for a hearing.10

3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
6

Id.

7

Id.

8

See Larry L. Hill, 42 ECAB 596, 600 (1991).

9

Supra note 6.

10

See C.C., Docket No. 15-0007 (issued September 17, 2015).

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On appeal appellant asserts that she was “out of town” in June and July 2015 and did not
receive notice of the scheduled hearing. The Board notes that notice of the hearing is mailed to a
claimant “unless otherwise directed in writing by the claimant.”11 Appellant had an opportunity
to notify OWCP of her absence and provide an appropriate address or method of communicating
the notice of the scheduled hearing. There is no indication that appellant contacted OWCP in
this regard. Based on the evidence of record, OWCP properly found that appellant abandoned
her hearing request in this case.
CONCLUSION
The Board finds that appellant abandoned her request for a hearing before an OWCP
hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 4, 2015 is affirmed.
Issued: November 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

Supra note 4.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Memphis, TN, Employer
__________________________________________

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

Docket No. 08-979
Issued: September 2, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 19, 2008 appellant filed a timely appeal of a January 10, 2008 decision of
the Office of Workers’ Compensation Programs, denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the January 10,
2008 decision. The Board does not have jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On April 2, 2002 appellant, a 51-year-old grading equipment operator, filed an
occupational disease claim alleging work-related hearing loss. He retired on March 1, 2002.
The Office accepted appellant’s claim for noise-induced hearing loss. On January 16, 2003
appellant filed a claim for a schedule award.

By decision dated April 22, 2004, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that he had a ratable hearing loss. A December 13, 2002
narrative report and audiometric test results from Dr. Edgar R. Franklin, an otolaryngologist and
an Office referral physician, revealed a mild high frequency sensorineural hearing loss in
appellant’s ears. However, based on the test results and the standardized Office procedures for
determining hearing loss using the American Medical Association, Guides to the Evaluation of
Permanent Impairment, appellant had no ratable loss of hearing in either ear. By decision dated
January 28, 2004, the Office affirmed the April 22, 2002 decision.
On December 9, 2004 appellant requested reconsideration and submitted a report
previously of record. By decision dated December 21, 2004, the Office denied appellant’s
request for reconsideration on the grounds that the evidence was insufficient to warrant further
merit review.
By letter received by the Office on January 4, 2008, appellant requested reconsideration
and submitted additional evidence. An August 10, 2007 report from a hearing testing facility
indicated that testing on July 23, 2007 revealed moderate hearing loss in both ears. Appellant
also submitted audiograms dated July 23 and December 4, 2007. The audiograms were not
certified by a physician.
By decision dated January 10, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was not timely filed within one year of the last merit
decision on January 28, 2004 and failed to show clear evidence of error.1
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.4 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the request for reconsideration is filed within one year of
the date of that decision.5 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).6
1

Subsequent to the January 10, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal
2

5 U.S.C. § 8128(a).

3

Thankamma Mathews, 44 ECAB 765 (1993).

4

Id. at 768.

5

20 C.F.R. § 10.607; see also Alberta Dukes, 56 ECAB 247 (2005).

6

Thankamma Mathews, supra note 3 at 769.

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Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7 To establish clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by the Office.8 The evidence must be positive, precise and
explicit and must be manifest on its face that the Office committed an error.9 Evidence which
does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.10 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.11 To show clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflict in
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.12 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.13
ANALYSIS
The merits of appellant’s case are not before the Board. His request for reconsideration
was received by the Office on January 4, 2008. As this request was filed more than one year
after the Office’s January 28, 2004 merit decision, it is not timely.14 The next issue to be
determined is whether appellant demonstrated clear evidence of error in his untimely request for
reconsideration.
The Board finds that the Office properly denied appellant’s untimely request for
reconsideration on the grounds that the evidence failed to demonstrate clear evidence of error in
the January 28, 2004 merit decision.
Appellant submitted an August 10, 2007 report from a hearing testing facility indicating
that testing on July 23, 2007 revealed moderate hearing loss in both ears. He also submitted
7

20 C.F.R. § 10.607(b); see also Donna M. Campbell, 55 ECAB 241 (2004).

8

Dean D. Beets, 43 ECAB 1153 (1992).

9

Leona N. Travis, 43 ECAB 227 (1991).

10

Darletha Coleman, 55 ECAB 143 (2003).

11

Leona N. Travis, supra note 9.

12

Darletha Coleman, supra note 10.

13

Pete F. Dorso, 52 ECAB 424 (2001).

14

Pursuant to Paul R. Reddy, 45 ECAB 488 (1991), a valid request for an increased schedule award, rather than a
request for reconsideration, is not subject to the one-year time limitation. To establish a claim for increased
schedule award appellant must submit probative medical evidence in support of such claim. Appellant did not
submit valid medical evidence and his request for review was properly treated as a request for reconsideration.

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audiograms dated July 23 and December 4, 2007. The audiometric test results do not meet the
Office’s criteria to establish an employment-related loss of hearing. The test results were not
certified by a physician as being accurate. The Office does not have to review every uncertified
audiogram which has not been prepared in connection with an examination by a medical
specialist.15 Additionally, none of the evidence explained how the 2007 hearing test results were
related to appellant’s federal job from which he had retired five years earlier on March 1, 2002.
For these reasons, the evidence submitted does not constitute probative medical evidence on the
issue of appellant’s entitlement to a schedule award for his hearing loss. It does not raise a
substantial question concerning the correctness of the Office’s January 28, 2004 decision and is
insufficient to establish clear evidence of error.
For these reasons, the Office properly denied appellant’s request for reconsideration.
On appeal, appellant asserts that he did not submit a timely request for reconsideration of
the January 28, 2004 merit decision because the Office hearing representative did not contact
him when he submitted additional evidence. The record shows that he left a June 30, 2004
voicemail message for the hearing representative, stating that he had submitted additional
evidence and had not heard from the hearing representative. However, in a July 2, 2004 letter
sent to appellant’s address of record, the Office hearing representative advised him that, as
explained in the list of appeal rights attached to the January 28, 2004 decision, any additional
evidence had to be submitted to the district Office, along with a request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that his request was untimely and failed to demonstrate clear evidence of error.

15

See Robert E. Cullison, 55 ECAB 570 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2008 is affirmed.
Issued: September 2, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0756
Issued: September 16, 2015

Case Submitted on the Record

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

On February 18, 2015 appellant filed a timely appeal of September 25, 2014 and
January 28, 2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
The Board assigned Docket No. 15-756.
The Board has duly considered the matter and concludes that the case is not in posture for
decision.
On January 29, 2014 appellant, then a 64-year-old pipefitter, filed a traumatic injury
claim alleging that on January 14, 2014 he injured his right knee when his chair gave way while
he was taking inventory. OWCP denied his claim finding that he failed to establish fact of
injury. It found that the record contained no diagnosed medical condition causally related to the
January 14, 2014 incident. By decisions dated September 25, 2014 and January 28, 2015,
OWCP denied modification. In its September 25, 2014 decision, it indicated that it copied
records from OWCP File No. xxxxxx624, “which covers residuals of a work-related right knee
injury on May 31, 2013” into the current OWCP claim, File No. xxxxxx600.
The Board has duly considered the matter and concludes that the case is not in posture for
a decision. OWCP procedures provide that cases should be doubled when a new injury is
reported for an employee who previously filed an injury claim for a similar condition and further

indicates that the cases should be doubled as soon as the need to do so becomes apparent.1 As
OWCP referenced a prior claim which had been accepted for a right knee condition in denying
appellant’s claim for a new right knee injury, it should have combined the case files in
accordance with its procedures.
As the record before the Board does not contain all the evidence from the prior claim, the
Board is unable to properly address and adjudicate the issue of appellant’s current traumatic
injury under OWCP File No. xxxxxx624
On remand, OWCP should combine the present case record, OWCP File No. xxxxxx600,
with OWCP File No. xxxxxx624. After combining these case records on remand, it should
consider the evidence contained in the combined case record and, following any necessary
further development, issue a de novo decision regarding whether appellant sustained an injury in
the performance of duty on January 14, 2014.
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 28, 2015 and September 25, 2014 are set aside and the
case remanded for further proceedings consistent with this order of the Board.
Issued: September 16, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Bloomfield, MI, Employer
__________________________________________

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

Docket No. 09-2002
Issued: April 7, 2010

Case Submitted on the Record

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

JURISDICTION
On August 3, 2009 appellant, through his representative, filed a timely appeal from the
July 13, 2009 decision of the Office of Workers’ Compensation Programs, which found that he
did not sustain an injury on October 17, 2006, as alleged. Pursuant to 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 sustained an injury in the performance of duty on
October 17, 2006, as alleged.
On appeal, appellant’s attorney contends that the Office’s decision is contrary to fact and
law.
FACTUAL HISTORY
This is the second appeal before the Board. In a decision dated May 22, 2009, the Board
affirmed the Office’s January 4 and July 25, 2008 decisions denying appellant’s claim. The

Board found that appellant did not establish that he sustained an injury on October 17, 2006.
The facts and history as set forth in the prior decision are incorporated by reference.1
By letter dated May 28, 2009, appellant, through his attorney, requested reconsideration.
In a July 24, 2008 report, Dr. Norman E. Walter, an attending Board-certified orthopedic
surgeon, noted that he commenced treatment of appellant on November 16, 2006. He noted that
appellant was referred to him by Dr. Hindi Ahmed and reiterated that he was first informed on
December 17, 2007 about a work injury that occurred when appellant slipped and fell on a
handicap ramp, which appellant advised, precipitated the pain he was having in his knee.
Dr. Walter noted that this would explain why the other knee was bothering him as he was
favoring one knee. Appellant still complained of occasional pain. Dr. Walter stated, “The
diagnosis presently is status post partial meniscectomy, plica, early arthritis and there appears to
be some causal relationship and that [appellant] had no symptoms prior to the complaint and a
meniscal tear was demonstrated.” In a February 23, 2009 treatment note, he noted that he had
not seen appellant “in a while.” Dr. Walter noted that appellant was having trouble with his knee
as it was giving out on him. On examination, there was no effusion in the left knee, but a little
on in the right knee, which was asymptomatic. Dr. Walter noted that appellant’s ligaments were
intact but there was visible evidence of atrophy of the distal thigh. He noted that appellant’s
x-rays were remarkable for dramatic changes in the patella, which represented some form of
osteoporosis.
By decision dated July 13, 2009, the Office found that the evidence was not sufficient to
support modification of the prior denial. It found that appellant failed to provide a
comprehensive, probative medical opinion explaining how the October 17, 2006 incident led to
his left knee condition.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5 The employee must

1

Docket No. 08-2282 (issued May 22, 2009). On October 17, 2006 appellant, then a 48-year-old letter carrier,
alleged that he slipped and fell down a handicap ramp while in the performance of duty, sustaining a torn meniscus
of the left knee.
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.

2

also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
In order to satisfy the burden of proof, an employee must submit a physician’s
rationalized medical opinion on the issue of whether the alleged injury was caused by the
employment incident.9 Neither the fact that the condition became apparent during a period of
employment nor appellant’s belief that the employment caused or aggravated his condition is
sufficient to establish causal relationship.10 The weight of medical opinion is determined by the
opportunity for one thoroughness of examination, the accuracy and completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the opinion.11
ANALYSIS
The Board previously found that appellant had not provided sufficient medical evidence
to establish that his left knee condition was a result of the October 17, 2006 incident. The only
new evidence submitted are reports by Dr. Walter dated July 24, 2008 and February 23, 2009.
The Board finds that neither of these reports is sufficient to establish a causal relationship. On
July 24, 2008 Dr. Walter summarized his prior reports of record, appellant’s conservative care
for arthritis and arthroscopic surgery on May 1, 2007. He noted that appellant had a distal radius
fracture of the wrist due to a fall when seen on May 24, 2007 and was placed in a cast. On
July 9, 2007 the case was removed. Appellant continued in physical therapy for his left knee.
Dr. Walter stated that “some causal relationship,” existed between appellant’s diagnosis and the
work incident. His opinion does not clearly explain between the October 17, 2006 incident and
appellant’s left knee condition. The February 23, 2009 treatment note does not discuss any
causal relationship between appellant’s left knee condition and the October 17, 2006
employment incident. As noted, appellant saw Dr. Walter approximately one month after the
work incident but failed to mention the incident to Dr. Walter until December 17, 2007.
6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

Gary L. Fowler, 45 ECAB 365 (1994).

10

Phillip L. Barnes, 55 ECAB 426 (2004); Jamel A. White, 54 ECAB 224 (2002).

11

James R. Taylor, 56 ECB 537 (2005).

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Dr. Walter does not adequately explain how the accepted incident caused the arthritis to
appellant’s left knee or contributed to this condition. The record reflects that appellant was
diagnosed with arthritis of the patellofemoral joint and underwent surgery to correct a torn
meniscus. Dr. Walter does not adequately explain how the October 16, 2006 incident aggravated
the arthritis or contributed to the need for surgery.
An award of compensation may not be based on surmise, conjecture, speculation or
appellant’s belief of causal relationship.12 The medical evidence is insufficient to establish that
appellant sustained a work-related injury on October 17, 2006. Accordingly, the Board finds that
appellant failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury to his left
knee on October 17, 2006, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 13, 2009 is affirmed.
Issued: April 7, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 57 (1979).

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

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

Docket No. 12-1946
Issued: April 16, 2013

Case Submitted on the Record

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

JURISDICTION
On September 24, 2012 appellant, through counsel, filed a timely appeal from a July 13,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s medical benefits on the
grounds that he had no need for further medical treatment due to his accepted lower back sprain.

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 13, 2012 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal, counsel contends that there is an unresolved conflict in the medical opinion
evidence.
FACTUAL HISTORY
On July 29, 2008 appellant, then a 44-year-old city carrier, filed a traumatic injury claim
alleging that on that day he sprained his lower back when he slipped on a curb and heard a pop in
his back. OWCP accepted the claim for lower back sprain. Appellant stopped work on July 29,
2008 and returned to a part-time modified job on August 2, 2010.
On October 19, 2010 appellant was referred for a second opinion evaluation with
Dr. Lawrence I. Barr, an osteopath, for a functional capacity examination. In a November 8,
2010 report, Dr. Barr, based upon a review of the statement of accepted facts, employment injury
history, magnetic resonance imaging (MRI) scans and physical examination, diagnosed chronic
low back pain, morbid obesity and lumbar sprain with degenerative disc disease. He noted that it
appeared appellant had chronic low back pain, which predated the employment injury and that
the low back sprain had resolved. Dr. Barr opined that no further medical treatment for the low
back sprain was necessary as the condition had resolved. He stated that he found no clinical
signs supporting a diagnosis of radiculopathy or neuropathy.
In response to OWCP’s letter, appellant submitted a January 3, 2011 progress note which
noted physical findings and indicated that he continued to have lower back pain with spasms.3
In a January 6, 2011 supplemental report, Dr. Barr opined that appellant was capable of
returning to his date-of-injury job as his back sprain had stabilized. He noted that appellant’s
primary complaint was lumbar degenerative disc disease.
On February 22, 2011 OWCP issued a notice proposing to terminate appellant’s medical
benefits.4 It found that the reports of Dr. Barr established that he had no residuals or disability
due to the accepted lower back strain.
By decision dated March 25, 2011, OWCP finalized the termination of appellant’s
medical benefits effective that day.
In an April 5, 2011 reevaluation progress note, initialed by Dr. Arthur G. Nahas, an
osteopath and appellant’s treating physician indicted that appellant was diagnosed with
acute/chronic lumbosacral pain, morbid obesity and radicular bilateral leg pain. Dr. Nahas found
that Dr. Barr’s report was prejudiced and inaccurate about appellant’s condition.
On April 20, 2011 appellant requested review of the written record of the March 25, 2011
decision terminating his medical benefits.

3

The report contains initials, but no signature.

4

On February 17, 2011 OWCP had issued a decision terminating appellant’s wage-loss compensation effective
that day also on the basis of Dr. Barr’s report.

2

On May 23, 2011 counsel also requested reconsideration of the March 25, 2011 decision
terminating his medical benefits. A telephonic hearing was held on July 15, 2011.
OWCP received a May 13, 2011 report from Dr. Nahas and a May 23, 2011 request to
expand his claim to include lumbar radiculopathy.
On May 13, 2011 Dr. Nahas opined that appellant was totally disabled and sustained a
permanent low back injury. He related that appellant was last seen on April 5, 2011 for low back
pain and muscle spasms and bilateral radicular leg pain. Dr. Nahas opined that based on a nerve
conduction study appellant has moderate left L5-S1 radiculopathy and mild right L5
radiculopathy. In concluding, he opined that appellant was disabled from performing his duties
as a mail carrier due to back injury.
On July 18 and 21, 2011 OWCP received additional reports from Dr. Nahas. In a
May 31, 2011 report, Dr. Nahas attributed appellant’s disability commencing October 15, 2010
to his modified job duties which exacerbated his symptoms and aggravated his back condition.
He further opined that appellant’s repetitive job duties exacerbated his lower back and leg pain.
Dr. Nahas, in a July 8, 2011 report, opined that appellant continued to have residuals due
the accepted July 29, 2008 employment injury. With respect to the cause of appellant’s
disability on and after October 14, 2010, he concluded that the disability was due to a new claim
based on the progression of appellant’s symptomatology and aggravating work factors. In
concluding, Dr. Nahas opined that appellant’s total disability beginning October 14, 2010 and
continuing was due to a new employment injury to appellant’s back.
By decision dated August 25, 2011, OWCP’s hearing representative set aside the
March 25, 2011 decision terminating appellant’s medical benefits and remanded the case for
further medical development on the issue of whether his L5-S1 radiculopathy was causally
related to the accepted July 29, 2008 employment injury.
In a December 2, 2011 supplemental report, Dr. Barr noted that he reviewed the
additional notes and objective evidence provided by OWCP. A review of the nerve conduction
study revealed mild right L5 and moderate L5-S1 radiculopathy. However, Dr. Barr related that
as there was no needle component to the test, this nerve conduction velocity study was
inadequate to support a diagnosis of radiculopathy. In concluding, he noted that, while he found
radicular complaints in his initial examination, he found no clinical radiculopathy signs during
his January 8, 2010 examination.
By decision dated December 13, 2011, OWCP terminated appellant’s medical benefits
effective that day. It found that the opinion of Dr. Barr established that appellant no longer had
any residuals due to his accepted employment condition.
In correspondence dated December 19, 2011, counsel requested an oral hearing before an
OWCP hearing representative.
By decision dated March 15, 2012, OWCP’s hearing representative found that the case
was not in posture for a decision. It vacated the December 13, 2011 decision and remanded the
case to OWCP for further development of the medical evidence. OWCP was instructed to refer
3

appellant back to Dr. Barr to assess whether a lumbar radiculopathy condition is present and
whether it is causally related to the accepted July 29, 2008 employment injury. It instructed that
medical benefits for the accepted lumbar strain be reinstated.
In a June 4, 2012 report, Dr. Barr performed an updated examination, provided his
findings and conclusions and diagnoses of low back sprain, lumbar degenerative disc disease and
morbid obesity. A physical examination revealed positive straight leg raising for back pain at 40
degrees, a negative Patrick’s sign, nontender sacroiliac joints and no true sacrosciatic notch
tenderness. Dr. Barr reported that a January 30, 2009 MRI scan showed mild L5-S1
degenerative disc disease and small right lateral recess spur. He also reviewed a May 24, 2012
electromyography test which showed sensory neuropathy. Dr. Barr opined that appellant had
plateaued medically and no further medical treatment was necessary. In response to OWCP’s
questions, he stated that he found no clinical signs of radiculopathy as appellant had good
strength, sensation and reflexes and no atrophy. Dr. Barr stated that appellant is disabled, but
that any disability is due to his morbid obesity and preexisting degenerative disc disease. He
noted that the physical examination revealed that appellant had good reflexes, strength and
sensation and no atrophy. Dr. Barr concluded that appellant sustained a low back injury with an
exacerbation of an underlying lumbar degenerative disc disease due to the accepted employment
injury. A review of an MRI scan revealed L5-S1 degenerative disc disease and right lateral
recess spur. Dr. Barr opined that appellant no longer required any medical care or treatment for
the accepted lumbar spine low back sprain. Lastly, he attributed appellant’s current disability to
his preexisting degenerative disc disease and morbid obesity.
On June 22, 2012 Dr. Barr in response to questions posed by OWCP, related that
appellant had no clinical signs of radiculopathy based on no atrophy, good strength, sensation
and reflexes. He opined that appellant required no further medical treatment of his low back
sprain. Dr. Barr stated that, while the objective testing revealed sensory neuropathy, this
condition was attributed to appellant’s diabetic condition.
By decision dated July 13, 2012, OWCP terminated appellant’s medical benefits based on
Dr. Barr’s June 4, 2012 report. It also found the evidence insufficient to establish a diagnosis of
lumbar radiculopathy as causally related to the accepted July 29, 2008 employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.6 To terminate

5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).

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authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which would require further medical treatment.7
ANALYSIS
OWCP accepted that on July 29, 2008 appellant sustained a low back sprain in the
performance of duty. On December 13, 2011 it terminated his medical benefits as it found the
medical evidence established that he no longer required further medical treatment for his
accepted employment injury.
By decision dated March 15, 2012, OWCP’s hearing
representative remanded the case to OWCP to request that Dr. Barr determine whether lumbar
radiculopathy was present and if yes, whether there was a causal relationship with the July 29,
2008 employment injury. On July 13, 2012 OWCP terminated medical benefits based on
Dr. Barr’s updated finding that lumbar radiculopathy was not present and appellant no longer
required any medical treatment. The issue on appeal is whether OWCP met its burden to
terminate appellant’s medical benefits. The Board finds that it properly relied upon the
thorough, well-rationalized opinion of Dr. Barr, who served as an OWCP referral physician.
Dr. Barr’s reports established that appellant required no further medical treatment for his
accepted employment conditions.
Dr. Barr provided an extensive review of appellant’s medical history, reported
examination findings in his reports. In reports dated November 8, 2010 and June 4, 2012, he
diagnosed conditions including low back pain sprain, morbid obesity, lumbar sprain and lumbar
degenerative disc disease. Dr. Barr noted an unremarkable examination of appellant’s lumbar
spine with full range of motion and only minimal tenderness to light touch and no neurological
findings. In a June 22, 2012 addendum, he reported no atrophy, good strength, sensation and
reflexes and no evidence of radiculopathy on physical examination. Dr. Barr attributed
appellant’s sensory neuropathy to appellant diabetes. He indicated that any disability was due to
appellant’s morbid obesity and preexisting degenerative disc disease.
The Board finds that Dr. Barr’s reports represent the weight of the medical evidence and
that OWCP properly relied on his reports in terminating appellant’s medical benefits. Dr. Barr’s
opinion is based on proper factual and medical history as he reviewed a statement of accepted
facts and appellant’s prior medical treatment and test results. He also related his comprehensive
examination findings in support of his opinion that the accepted work-related condition had
resolved. Dr. Barr indicated that appellant did not have residuals from the condition of lower
back sprain and that his current condition was due to his preexisting degenerative disc disease
and morbid obesity. There is no contemporaneous medical evidence of equal weight supporting
appellant’s claim for medical residuals. Thus, OWCP met its burden of proof to terminate his
medical benefits.
Appellant submitted reports and progress notes from Dr. Nahas, who continued to treat
appellant for acute lumbar sprain. Dr. Nahas diagnosed lumbosacral pain, morbid obesity and
radicular bilateral leg pain in April 5, 2011 progress notes. In reports dated May 13 and 23,
2011, he requested expansion of appellant’s claim to include the diagnosis of lumbar
7

B.K., Docket No. 08-2002 (issued June 16, 2009); Kathryn E. Demarsh, supra note 6; James F. Weikel, 54
ECAB 660 (2003).

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radiculopathy. On May 31, 2011 Dr. Nahas attributed appellant’s lower back and leg pain to
exacerbation from appellant’s repetitive job duties. In a July 8, 2011 report, he opined that
appellant continued to require medical treatment for injuries sustained as a result of his accepted
July 29, 2008 employment injury. However, none of Dr. Nahas’ reports specifically provide any
medical reasoning to explain how any continuing condition was causally related to the July 29,
2008 employment injury, accepted for a low back sprain and, therefore, are of limited probative
value.8 Additionally, the Board notes that OWCP has not accepted the condition of lumbar
radiculopathy as due to the July 29, 2008 employment injury.9 Dr. Nahas provided insufficient
rationale addressing how the work incident caused lumbar radiculopathy particularly when he
opined that appellant’s work duties aggravated his symptoms and back condition. The Board has
held that opinions unsupported by rationale are of diminished probative value.10 Thus,
Dr. Nahas’ opinion is insufficient to create a conflict in the medical opinion evidence with the
opinion of Dr. Barr.
The Board finds that OWCP properly relied upon Dr. Barr’s reports to conclude that
appellant had no continuing medical residuals of his accepted employment injury. Therefore,
OWCP met its burden to terminate appellant’s medical benefits.
On appeal, counsel contends there is an unresolved conflict in the medical opinion
evidence between Dr. Barr and Dr. Nahas. As explained above, the Board finds that the weight
of the evidence rested with the opinion of Dr. Barr and that the opinion of Dr. Nahas was
insufficiently rationalized to create a conflict.
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 has met its burden of proof in terminating appellant’s
medical benefits.

8

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

9

Charles W. Downey, 54 ECAB 421 (2003); Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not accepted
by OWCP as being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship).
10

T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 13, 2012 is affirmed.
Issued: April 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
G.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cayey, PR, Employer
__________________________________________

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

Docket No. 19-0815
Issued: January 16, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 4, 2019 appellant filed a timely appeal from a January 30, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from OWCP’s last merit decision, dated October 13, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the case.3

1

Appellant also appealed a purported decision dated February 12, 2019. The February 12, 2019 correspondence
from OWCP, however, is informational in nature and does not constitute a final decision with appeal rights. 20 C.F.R.
§ 501.2(c).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the January 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case,
as set forth in the Board’s prior decision, are incorporated herein by reference. The relevant facts
are as follows.
On August 30, 2011 appellant, then a 28-year-old transitional employee (TE) carrier, filed
a traumatic injury claim (Form CA-1) alleging that he injured his back on August 25, 2011 while
in the performance of duty. He indicated that he was attacked by a dog, and that he stumbled and
fell over a car. Appellant stopped work on August 26, 2011 and returned to work on
August 30, 2011. OWCP accepted the claim for lumbar back sprain.
Appellant filed claims for compensation (Form CA-7) for wage loss from October 3, 2011
through January 6, 2012.
By decision dated July 18, 2016, OWCP denied appellant’s claim for wage-loss
compensation for disability for the period October 3, 2011 through January 6, 2012. It found that
because his attendance was irregular even before the August 25, 2011 employment injury, it could
not authorize payment of compensation as appellant failed to show that the removal was a result
of disability after the employment injury. OWCP further found that the medical evidence of record
around the time of the alleged September 25, 2011 recurrence failed to provide a rationalized
explanation as to how the work stoppage was caused by a spontaneous change or worsening in the
accepted lumbar strain without an intervening injury. It also noted that there was a gap in medical
evidence from 2011 through 2013 and that most of the medical evidence received was from 2015
and 2016.5
On June 21, 2017 appellant requested reconsideration of OWCP’s July 18, 2016 decision
denying compensation for the period October 3, 2011 through January 6, 2012. By decision dated
October 13, 2017, OWCP denied modification of its July 18, 2016 decision. It found that the
medical evidence submitted was insufficient to establish that the accepted employment injury
caused, contributed to, or aggravated the diagnosed conditions to the point of total disability for
the claimed period of October 3, 2011 through January 6, 2012. OWCP additionally found that
the evidence supported that appellant was terminated for cause due to attendance issues that
4

Docket No. 17-1860 (issued January 11, 2018).

5

By separate decision also dated July 18, 2016, OWCP denied appellant’s claim for recurrence of disability due to
a change in the nature and extent of his light-duty job requirements or withdrawal of a light-duty assignment made
specifically to accommodate appellant’s work-related injury without misconduct. It found that appellant was removed
from the job he held because his attendance was not irregular and for other causes, not because of his employment
injury. On June 29, 2017 appellant requested reconsideration of OWCP’s July 18, 2016 decision denying his
recurrence claim.5 By decision dated August 1, 2017, OWCP denied appellant’s request for reconsideration.
Appellant appealed to the Board. By decision dated January 11, 2018, the Board affirmed OWCP’s August 1, 2017
nonmerit decision. Id.

2

occurred prior to the employment incident and was not due to disability as a result of the accepted
employment incident.
On May 30, 2018 appellant requested reconsideration of the October 13, 2017 decision.
Evidence received in support of his request included requests for authorization, physical therapy
notes, notes regarding the scheduling of medical treatment or evaluation, and diagnostic testing.
An August 7, 2017 magnetic resonance imaging (MRI) scan of the lumbosacral spine, reported
small central disc protrusion at L5-S1 and loss of the normal lumbar lordosis, an August 14, 2017
MRI scan of the cervical spine noted abnormal findings, and a March 25, 2016 electromyogram
and nerve conduction velocity (EMG/NCV) study, indicated abnormal findings with evidence of
right sided acute to chronic C5-6 polyradiculopathy.
In a September 1, 2017 report, Dr. Ivette Ostolaza, a family practitioner, noted the history
of the August 25, 2011 employment incident, appellant’s medical course, and presented
examination findings. A diagnosis of lumbar disc derangement, lumbar disc herniations and
lumbar radiculopathy was provided.
In medical reports dated February 19, March 7, April 2, May 3, July 9, and December 6,
2018 and January 17, 2019, Dr. Mark A. Seldes, a Board-certified family practitioner, were
received. He noted the August 25, 2011 employment incident, appellant’s medical history, and
his examination findings and diagnosed lumbar radiculopathy with bilateral lower extremity
radicular symptoms in an L5-S1 distribution, cervical radiculopathy with bilateral C5-C6 radicular
distribution, and bilateral carpal tunnel syndrome. Dr. Seldes also presented treatment plans.
In his February 19, 2018 report, Dr. Seldes opined that appellant was disabled from work
on January 11, 2012 due to the injuries he had from the pit bull attack as well as the injury of
falling into his vehicle during the attack. In his April 2 and May 3, 2018 reports, he opined that
appellant was disabled on January 11, 2012 due to the injuries he suffered while at work. In his
July 9, 2018 report, Dr. Seldes requested that the diagnoses of cervical radiculopathy, which
occurred on the date of injury, and carpal tunnel syndrome be accepted. He explained that the
carpal tunnel syndrome developed over the course of appellant’s employment as a city letter carrier
and his symptoms had worsened by the time of his employment incident.
By decision dated January 30, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a

6
5 U.S.C. § 8128(a); see also A.B., Docket No. 18-0596 (issued August 5, 2019); D.L., Docket No. 09-1549 (issued
February 23, 2010); W.C., 59 ECAB 372 (2008).

3

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.7
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.8 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.9 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that this case is not in posture for decision.
The last merit decision in this case was OWCP’s October 13, 2017 decision, which found
that the medical evidence of record did not establish that the accepted employment injury caused
disability during the claimed period of October 3, 2011 through January 6, 2012, and that appellant
was terminated for cause due to attendance issues that occurred prior to the accepted employment
incident.
Following the October 13, 2017 decision appellant requested reconsideration on May 30,
2018 and submitted additional medical evidence.
By decision dated January 30, 2019, 245 days after the reconsideration request, OWCP
found that the evidence submitted with the May 30, 2018 request for reconsideration was irrelevant
or immaterial to the underlying disability issue. OWCP’s procedures provide a timeliness goal for
issuing reconsideration decisions within 90 days from the receipt of the request.11 As OWCP’s
January 30, 2019 decision was issued more than 90 days after it received appellant’s request for
reconsideration, the question becomes whether the delay has impacted appellant’s ability to file a
timely request for reconsideration of the merits of his case under 5 U.S.C. § 8128(a).12 Had OWCP
issued the reconsideration decision within its 90-day timeliness goal, appellant would have had an
additional 46 days to seek review under the criteria set forth for a timely request for reconsideration
with OWCP. Here, the delay has impacted appellant’s ability to bring a timely request for
reconsideration of OWCP’s October 13, 2017 merit decision. Any further requests for
reconsideration would be untimely as they would be filed more than one year following the
October 13, 2017 merit decision. The standard of review for an untimely request for

7
20 C.F.R. § 10.606(b)(3); see A.B., id., L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No.
08-1569 (issued December 9, 2008).
8

20 C.F.R. § 10.607(a).

9

Id. at § 10.608(a); see D.L., Docket No. 18-0449 (issued October 23, 2019); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); see D.L., id.; E.R., Docket No. 09-1655 (issued March 18, 2010).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(c) (October 2011).

12
E.I., Docket No. 18-0634 (issued January 23, 2019) (the Board ordered a merit review where OWCP delayed its
reconsideration decision more than 90 days from the receipt of the request).

4

reconsideration requires appellant to demonstrate clear evidence of error. The Board has
repeatedly held that clear evidence of error is intended to represent a difficult standard.13
Therefore, the Board finds that this case is not in posture for decision. To preserve
appellant’s right to file a timely request for reconsideration this case will be remanded to OWCP
for a merit review of the evidence of record followed by an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision.
Issued: January 16, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

P.L., Docket No. 18-0813 (issued November 20, 2018); W.R., Docket No. 09-2336 (issued June 22, 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melville, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1187
Issued: March 10, 2020

Case Submitted on the Record

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

JURISDICTION
On May 19, 2018 appellant, through her representative, filed a timely appeal from a
February 13, 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.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of
Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before
OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first
time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time
on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish cervical and lumbar
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 3, 2016 appellant then a 59-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that she aggravated her neck and back conditions due to
factors of her federal employment including lifting magazines. She first became aware of her
condition and realized it was causally related to her employment on November 11, 2015.
Appellant did not stop work, but continued in a limited-duty assignment related to a separate workrelated injury.
Appellant was treated by Dr. Edward Firouztale, an osteopath Board-certified in
neurology, on November 11, 2015, for intermittent radiating back pain. She reported having
difficulty lifting heavy magazines at work. Dr. Firouztale noted diagnostic testing which included
a magnetic resonance imaging (MRI) scan of the lumbar spine, dated January 3, 2009, that revealed
minimal disc bulging at L2-3 and a small degenerative disc bulge and annular tear at L4-5 as well
as a cervical spine MRI scan, dated December 20, 2011, that revealed interval progression from
the prior study of cervical spondylosis most notably at C5-6, C6-7, impingement upon left C7
nerve root, central stenosis, and straightening of the cervical lordosis. Findings on examination
revealed back and neck pain. Dr. Firouztale diagnosed radiculopathy of the lumbar region and
spinal stenosis. He recommended further examination with a spine specialist, pain management,
an electromyogram (EMG), and a reduction in appellant’s work schedule to three days a week
limited duty. A duty status report (Form CA-17) from Dr. Firouztale dated November 12, 2015
noted a diagnosis of cervical and lumbar radiculopathy and returned appellant to work on
November 12, 2015 for three days per week of limited duty.
A March 2, 2016 Form CA-17 from a nurse practitioner noted a diagnosis of cervical and
lumbar radiation and returned appellant to work three days per week with restrictions.
In an April 6, 2016 claim development letter, OWCP requested that appellant submit
additional factual and medical information in support of her claim and provided a questionnaire to
substantiate the factual elements of her claim. It also requested that she clarify whether she was
claiming an occupational disease or a traumatic injury. OWCP afforded appellant 30 days to
submit the requested information.
In a statement dated May 10, 2016, appellant indicated that in 1994 she sustained a cervical
and lumbar injury when she slipped on ice while delivering mail, OWCP File No. xxxxxx716.4
She reported that her back and neck conditions worsened and Dr. Firouztale reduced her work
hours on November 11, 2015. Appellant indicated that her ongoing work duties aggravated her
preexisting condition over a period of time. She noted that on October 17, 2011 her work
4
OWCP assigned OWCP File No. xxxxxx716 and accepted the claim for cervical strain, lumbosacral strain, and
lumbosacral neuritis/radiculitis. On October 17, 2013 appellant filed a traumatic injury claim alleging that on July 25,
2009 she had exacerbated her cervical and lumbar conditions while performing work outside of her restrictions.
OWCP assigned File No. xxxxxx021 and denied the claim.

2

assignment involved “rips and tears” in which she lifted and carried buckets half filled with
magazines, flats, catalogues, and newspapers weighing 10 to 15 pounds. Appellant indicated that
repetitively lifting and carrying the buckets aggravated her back and created sciatica. She reported
performing these duties five days per week until her physician reduced her work schedule to three
days per week on November 11, 2015.
By decision dated June 10, 2016, OWCP denied appellant’s claim finding that she had not
established that her claimed medical condition was causally related to the established work-related
events.
On June 20, 2016 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on February 16, 2017.
In a Form CA-17 dated October 5, 2016, Dr. Firouztale diagnosed cervical and lumbar
radiculopathy. He returned appellant to work three days per week with restrictions.
On February 13, 2017 Dr. Deborah Eisen, Board-certified in family medicine, noted that
appellant had previously been injured in 1994 when she fell on ice at work and sustained lumbar
and cervical sprains. She reviewed appellant’s prior diagnostic testing and performed a physical
examination. Dr. Eisen opined that her job duties of lifting and carrying approximately 700
magazines and catalogues out of buckets for eight hours per day, five days per week would result
in lumbar radiculopathy. She explained that lifting and carrying heavy packages put pressure
across the discs causing them to bulge or herniate. Dr. Eisen noted that when a disc bulges or
herniates, as noted on the MRI scan of November 19, 2015, it presses on spinal nerves creating
stenosis at L4-5, and symptoms of pain, weakness, numbness, and radiculopathy. She opined that
the cervical spine musculature was overworked and in a weakened state due to appellant’s prior
conditions and became strained. Dr. Eisen further opined, within a reasonable degree of medical
certainty, that appellant’s conditions were causally related to her employment duties, noting that
lifting and carrying heavy packages caused bulging lumbar discs leading to stenosis of the nerves,
L4-5 lumbar radiculopathy, and cervical spine sprain.
In letters dated March 17 and 27, 2017, the employing establishment indicated that
appellant was restricted from lifting more than 15 pounds and her duties required lifting less than
this amount. It indicated that the buckets weighed three pounds “when empty” and her estimate
of lifting 700 magazines was a “very high estimate.” The employing establishment also noted that
she could ask for assistance for heavier job duties.
On April 13, 2017 appellant submitted an opinion and award dated November 30, 2015
relating to a grievance she had filed against the employing establishment. The opinion found that
her limited-duty position, in relation to her prior accepted claim, had been improperly abolished
and she had therefore worked in an improper position.
By decision dated May 1, 2017, an OWCP hearing representative affirmed the
June 10, 2016 decision. She found that appellant’s employment duties involved repairing
damaged magazines/catalogs, handling an average of several hundred magazines a day, working
three days a week since November 11, 2015, and lifting which did not exceed 15 pounds. The
hearing representative further found that Dr. Eisen’s report was of diminished probative value as
she based her opinion on an inaccurate and incomplete history of injury because her opinion was

3

based upon appellant lifting about 700 magazines each night and lifting buckets weighing
approximately 10 pounds per bucket.
On November 21, 2017 appellant, through her representative, requested reconsideration.
In support of the request, she submitted a report from Dr. Eisen dated November 17, 2017, who
opined within a reasonable degree of medical certainty that appellant’s conditions, as described,
were causally related to her employment duties. Dr. Eisen opined that lifting and carrying 10pound buckets and lifting approximately 700 magazines per shift would cause bulging of the
lumbar discs leading to stenosis of the nerves, L4-5 lumbar radiculopathy, and cervical spine sprain
of the musculature.
By decision dated February 13, 2018, OWCP denied modification of the May 1, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

4

complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.11
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that the case is not in posture for a decision.
OWCP accepted that appellant’s employment duties involved repairing damaged
magazines/catalogs, handling an average of several hundred magazines per day, working three
days per week since November 11, 2015, and lifting which did not exceed 15 pounds.
In support of her claim, appellant has submitted medical reports from Dr. Eisen who
provided affirmative opinions on the issue of causal relationship. In her February 13, 2017
report, Dr. Eisen acknowledged appellant’s preexisting, work-related lumbar and cervical spine
conditions. She opined that appellant’s job duties of lifting and carrying approximately 700
magazines and catalogues out of buckets for eight hours per day, five days per week would result
in lumbar radiculopathy, explaining that lifting and carrying heavy packages put pressure across
the discs causing them to bulge or herniate. Dr. Eisen further explained that when a disc bulges
or herniates it presses on spinal nerves creating stenosis and symptoms of pain, weakness,
numbness, and radiculopathy. As it relates to the preexisting conditions, she opined that the
cervical spine musculature was overworked and in a weakened state due to appellant’s prior
conditions and became strained. Dr. Eisen concluded that appellant’s cervical and lumbar
conditions were causally related to her employment duties, specifically noting that lifting and
carrying heavy packages caused bulging lumbar discs leading to stenosis of the nerves, L4-5
lumbar radiculopathy, and cervical spine sprain.
In her November 17, 2017 report, Dr. Eisen reiterated her prior causation opinion and
rationale and explained how the employment factors, as set forth by the hearing representative,
were sufficient to have resulted in appellant’s current cervical and lumbar spine conditions.
The Board finds that the reports of Dr. Eisen, when read together, are sufficient to require
further development of the medical evidence to see that justice is done.13 Dr. Eisen is a Board10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

Id.; Victor J. Woodhams, supra note 8.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
13
D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

5

certified physician who is qualified to render an opinion on the issue of causal relationship and
she provided a comprehensive and convincing review of the medical record and case history.
The Board further finds that she provided a pathophysiological explanation as to how the
accepted employment factors were sufficient to cause the currently diagnosed conditions. The
Board has long held that it is unnecessary that the evidence of record in a case be so conclusive
as to suggest causal connection beyond all possible doubt. Rather, the evidence required is only
that necessary to convince the adjudicator that the conclusion drawn is rational, sound, and
logical.14 Following review of Dr. Eisen’s reports, it is found that her medical opinion is well
rationalized and logical and is therefore sufficient to require further development of appellant’s
claim.
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is
done.16
On remand OWCP shall refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician shall provide a well-rationalized
opinion as to whether appellant’s diagnosed conditions are causally related to the accepted
factors of her federal employment. If the physician opines that the current conditions are not
causally related to appellant’s employment duties, he or she must explain with rationale how or
why the opinion differs from that of Dr. Eisen. After such further development of the case record
as OWCP deems necessary, it shall issue a de novo decision.17
CONCLUSION
The Board finds that this case is not in posture for a decision.

14
W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
15

See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

16

See B.C., Docket No. 15-1853 (issued January 19, 2016).

17
The Board notes that appellant’s prior claims, OWCP File Nos. xxxxxx716 and xxxxxx021, have not been
administratively combined with the current case. Upon return of the case record, OWCP shall administratively
combine appellant’s current claim with her prior claims as they relate to the same cervical and lumbar spine conditions.

6

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 10, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7