United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 07-696
Issued: June 19, 2007

Case Submitted on the Record

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

JURISDICTION
On January 17, 2007 appellant filed a timely appeal from a December 19, 2006 merit
decision of the Office of Workers’ Compensation Programs denying her occupational disease
claim. 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 has established that she sustained a left shoulder condition
causally related to factors of her federal employment.
FACTUAL HISTORY
On November 1, 2006 appellant, then a 50-year-old mail handler, filed an occupational
disease claim alleging that she sustained a frozen shoulder and tendinitis due to performing
repetitive work in the course of her federal employment. She did not stop work.
In a report dated October 25, 2006, Dr. Allen Deutsch, a Board-certified orthopedic
surgeon, discussed appellant’s complaints of left shoulder pain and noted that she performed

repetitive lifting for the employing establishment. He diagnosed mild frozen shoulder syndrome
with tendinitis and rotator cuff impingement syndrome. Dr. Deutsch recommended physical
therapy. In a return to work form dated October 25, 2006, he opined that appellant could resume
work on October 28, 2006 with left shoulder restrictions.
On October 31, 2006 appellant related that she injured her shoulder lifting a tub onto a
shelf on October 18, 2006. She experienced pain on October 28, 2006 and went to a physician,
who told her that it was due to her employment.
In a progress report dated November 8, 2006, Dr. Deutsch noted some improvement in
range of motion and again recommended physical therapy for frozen shoulder. In a state
workers’ compensation work status report dated November 8, 2006, he listed work restrictions
for the left shoulder.
On November 13, 2006 the Office requested additional factual and medical information
from appellant, including a comprehensive medical report from her attending physician
addressing causal relationship. In a statement dated November 17, 2006, appellant described in
detail her work duties and history of pain from the left side of her neck through her upper arm
and elbow beginning October 18, 2006. In an additional statement received November 27, 2006,
she related that she began experiencing left shoulder, neck and upper arm pain on
October 18, 2006. Appellant described her work duties and stated, “The repetitive motion of my
left arm has caused me to feel pain in my left side of my neck, down to my left shoulder and
down to my upper left arm.”
By decision dated December 19, 2006, the Office denied appellant’s claim on the
grounds that the medical evidence was insufficient to establish that she sustained a medical
condition causally related to the accepted work factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
1

5 U.S.C. §§ 8101-8193.

2

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

2

presence or existence of the disease or condition for which compensation is claimed;4 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;5 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
The medical evidence required to establish causal relationship generally 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 the claimant’s diagnosed condition and the implicated employment factors.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,8 must be one of reasonable medical certainty9 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10
ANALYSIS
Appellant attributed her left shoulder condition to performing repetitive work in the
course of her federal employment. She submitted a detailed statement describing her repetitive
work duties. The Office accepted the occurrence of the claimed employment factors. The issue,
therefore, is whether the medical evidence establishes a causal relationship between the claimed
conditions and the identified employment factors.
In a report dated October 25, 2006, Dr. Deutsch discussed appellant’s complaints of left
shoulder pain and noted that she performed repetitive work for the employing establishment. He
diagnosed mild frozen shoulder syndrome with tendinitis and rotator cuff impingement
syndrome. Dr. Deutsch listed work restrictions for the left shoulder in an accompanying return
to work report. He did not, however, specifically address the cause of the diagnosed conditions
of frozen shoulder syndrome, tendinitis and rotator cuff impingement syndrome. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.11

4

Michael R. Shaffer, 55 ECAB 386 (2004).

5

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

7

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

Conrad Hightower, supra note 7.

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In a progress report dated November 8, 2006, Dr. Deutsch found that appellant’s range of
motion of the left shoulder had improved. In a form report of the same date, he listed work
restrictions for the left shoulder. As Dr. Deutsch did not address the cause of appellant’s frozen
shoulder or the listed work restrictions, his opinion is of little probative value.12
An award of compensation may not be based on surmise, conjecture or speculation of
appellant’s own belief that there is a causal relationship between her claimed condition and her
employment.13 She must submit a physician’s report in which the physician reviews those
factors of employment identified as causing her condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.14 Appellant failed to submit such evidence and therefore failed
to discharge her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained a left shoulder
condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2006 is affirmed.
Issued: June 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
12

Id.

13

Patricia J. Glenn, 53 ECAB 159 (2001).

14

Robert Broome, 55 ECAB 339 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANIC VETERANS ADMINISTRATION
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________

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Appearances:
Elijah J. Williams, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1621
Issued: December 21, 2012

Case Submitted on the Record

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

JURISDICTION
On July 25, 2012 appellant, through her representative, filed a timely appeal from the
March 19, 2012 merit decision of the Office of Workers’ Compensation Programs denying her
traumatic injury claim and May 25, 2012 nonmerit decision denying her request for an oral
hearing. 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.
ISSUES
The issues are: (1) whether appellant sustained a traumatic injury while in the
performance of duty on September 16, 2012; and (2) whether OWCP properly denied her
hearing request.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 25, 2011 appellant, a 51-year-old pharmacy technician, filed a traumatic
injury claim (Form CA-1) alleging that on September 16, 2011 she sustained neck strain and
spasms in her lower back while pushing an intravenous (IV) cart on an uneven space at work.
She did not stop work on the date of the alleged injury.
The record contains reports from Dr. Michael Miller, an employing establishment
physician, dated September 28, 2011 through January 10, 2012. He stated that appellant
experienced pain at work after pushing a heavy IV cart on September 12, 16 and 19, 2011.
Dr. Miller diagnosed probable muscle strain to the cervical and lumbar spine. On October 4,
2011 Dr. Miller related appellant’s history that she had sustained an injury at work on
September 12, 2011 when she tried to stop an IV cart from falling over. On the date of his
examination, appellant reported recurrent lumbar pain and spasms running up into her neck and
down into her left leg. In follow-up reports through January 10, 2012, Dr. Miller monitored
appellant’s neck and back pain and recommended light duty. The record contains a report of a
January 18, 2012 magnetic resonance imaging (MRI) scan of the lumbar spine.
On February 16, 2012 OWCP notified appellant that the evidence submitted was
insufficient to establish that she experienced the traumatic incident alleged to have caused injury.
It advised her to provide, within 30 days, additional information and documentation, including a
firm diagnosis and a physician’s opinion as to how her injury resulted in the diagnosed condition.
OWCP specifically asked appellant to provide a detailed description as to how the injury
occurred.
In a February 16, 2012 report, Dr. Randy S. Katz, a treating physician, noted appellant’s
report that she sustained an injury in mid-September 2011 while pushing a 200- to 300-pound IV
cart into an elevator. Appellant did not know the exact date, but that the incident occurred
between September 12 and 16, 2011. Dr. Katz provided examination findings and diagnosed
“left shoulder impingement; cervical facet/disc disease; likely cause of neck pain, no injury; and
L5-S1 disc herniation.”
On March 13, 2012 Dr. Katz stated that sometime between September 12 and 16, 2011,
appellant was pushing a 200- to 300-pound IV cart onto an elevator. When appellant pushed the
cart over the uneven flooring, it began to tilt. She caught the cart before it fell over. Appellant
did not fall during the alleged incident and believed she was okay at the time. The next day,
however, she woke up in pain. Dr. Katz reiterated his previous diagnoses and provided work
restrictions.
In a merit decision dated March 19, 2012, OWCP denied appellant’s claim. It found that
the evidence was insufficient to establish that the claimed incident occurred as alleged. The
medical evidence did not establish that appellant had a diagnosed condition causally related to
the claimed event.

2

In a letter to the Branch of Hearings and Review dated April 18, 2012, appellant, through
her representative, requested an oral hearing,2 The record contains a copy of the envelope that
contained appellant’s request reflecting a postmark of April 30, 2012. Appellant asked that her
claim be accepted for an aggravation of preexisting anxiety and depression. She also submitted
additional medical evidence relating to her claimed emotional condition.
In a statement dated April 17, 2012, appellant provided another account of the claimed
injury. She alleged:
“On September 12, 2011 she was pushing the extremely heavy IV cart (weighing
anywhere from 200-350 lbs) onto the elevator. The floor and the elevator were
not leveled even; therefore, in order for me to get the cart across the uneven
surface, I had to shove/push the cart with force onto the elevator. At that time the
cart fell over and I grabbed it. At that time I felt a strain in my back but I
continued to make my 11:30 round onto the floor and in the different units.”
In a decision dated May 25, 2012, OWCP found that appellant’s request was untimely
and that she was not entitled to a hearing as a matter of right. It considered her request and
denied a discretionary hearing on the grounds that she could equally well address any issues in
her case by requesting reconsideration before OWCP and submitting evidence not previously
considered which established that she sustained an injury in the performance of duty, as alleged.
LEGAL PRECEDENT -- ISSUE 1
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”4
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, that an injury was sustained in the performance of duty as alleged and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 When an employee claims that he or she sustained a traumatic injury in the
performance of duty, he or she must establish the “fact of injury,” namely, he or she must submit
sufficient evidence to establish that he or she experienced a specific event, incident or exposure
2

The representative asked the Branch of Hearings and Review to reconsider the denial of appellant’s claim.

3

5 U.S.C. § 8102 (a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
5

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

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occurring at the time, place and in the manner alleged, and that such event, incident or exposure
caused an injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a prima facie
case has been established, such circumstances as late notification of injury, lack of confirmation
of injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met his or her burden when there are
such inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
In order to establish a causal relationship between the diagnosed condition and the
established incident or factor of employment, a claimant must provide rationalized medical
opinion evidence. The physician’s opinion must be based on a complete factual and medical
background of the claimant, 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 established incident or factor of employment.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury to her neck or back on September 16, 2011. Appellant’s
presentation of the factual history is not supported by the evidence of record and does not
establish her allegation that a specific incident occurred which caused an injury on the date in
question.11 Moreover, there are inconsistencies in the evidence which cast doubt on the validity
of her claim.

6

See Paul Foster, 56 ECAB 208 (2004). Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54
ECAB 608 (2003). The term “injury” as defined by FECA, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).
7

See Betty J. Smith, supra note 6.

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

John W. Montoya, 54 ECAB 306 (2003).

11

See Dennis M. Mascarenas, supra note 9.

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Appellant initially reported on her October 25, 2011 CA-1 form that she sustained neck
strain and spasms in her lower back while pushing an IV cart on an uneven space at work on
September 16, 2011. She provided no detailed account of the incident, as required in a traumatic
injury claim. Appellant’s allegations were vague and did not relate with specificity the
circumstances, or the exact and immediate consequences, of the injury. Although OWCP
specifically asked her to provide a detailed description as to how the alleged injury occurred, she
provided no additional information prior to the March 19, 2012 merit decision. Although
appellant alleged that the incident was witnessed by a coworker, she provided no statement to
corroborate her claim from any witness, or to whom she immediately reported, the incident.
Appellant’s claim is further undermined by inconsistencies in the evidence. In her Form
CA-1, she alleged that she injured her neck and back on September 16, 2011. On September 28,
2011, however, appellant informed Dr. Miller that she experienced pain at work after pushing a
heavy IV cart on three separate dates, namely September 12, 16 and 19, 2011. On October 4,
2011 Dr. Miller related appellant’s report that she had sustained an injury at work on
September 12, 2011 when she tried to stop an IV cart from falling over. On February 16, 2012
appellant told Dr. Katz that she sustained an injury mid-September 2011 while pushing a 200- to
300-pound IV cart into an elevator, and that, although she did not know the exact date, the
incident occurred between September 12 and 16, 2011. On March 13, 2012 she reported to
Dr. Katz that sometime between September 12 and 16, 2011, a heavy IV cart began to tilt when
she shoved it over uneven flooring onto an elevator. Appellant allegedly caught the cart before it
fell over, did not fall, and she believed she was okay at the time. The next day, however, she
woke up in pain.
Appellant failed to provide a consistent history as to how or when the alleged incident
occurred. Thus, she has failed to establish the fact of injury: she did not submit sufficient
evidence to establish that she actually experienced an employment incident at the time, place and
in the manner alleged or that the alleged incident caused her condition. Therefore, the Board
finds that appellant has not met her burden of proof to establish that she sustained an injury in the
performance of duty on September 16, 2011.12
On appeal, appellant’s representative contends that appellant reported the September 12,
2011 injury to her employer on September 13 and 16, 2011 and that her filing was delayed
because she was given incorrect filing information. For the reasons stated, the Board finds that
appellant failed to meet her burden of proof.13
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.

12

As appellant failed to establish that the claimed event occurred as alleged, it is not necessary to discuss the
probative value of medical evidence. Id.
13

Appellant’s representative also requests that the claim be expanded to include an aggravation of appellant’s
emotional condition. As this issue was not addressed by OWCP in its March 19, 2012 decision, the Board does not
have jurisdiction over this matter.

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LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.14
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.15
A claimant is entitled to a hearing or review of the written record as a matter of right only
if the request is filed within the requisite 30 days.16 Although there is no right to a review of the
written record or an oral hearing if not requested within the 30-day time period, OWCP may
within its discretionary powers grant or deny appellant’s request and must exercise its
discretion.17 Its procedures require that it exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration under section 8128(a).18
ANALYSIS -- ISSUE 2
In its March 19, 2012 merit decision, OWCP denied appellant’s traumatic injury claim.
Appellant’s request for an oral hearing was dated April 18, 2012. The record, however, contains
the envelope in which the request was made reflecting a postmark of April 30, 2012. A hearing
request is considered timely if it was mailed (as determined by the postmark or other carrier’s
date marking) within 30 days of the date of the district OWCP’s decision.19 As appellant’s
request was postmarked more than 30 days after the date of issuance of OWCP s March 19, 2012
decision, it was untimely filed and he was not entitled to an oral hearing as a matter of right.
OWCP also has the discretionary authority to grant a request for hearing or review of the
written record when a claimant is not entitled to such as a matter of right. The Board has held
that the only limitation on OWCP s authority is reasonableness and an abuse of discretion is
generally shown through proof of manifest error, a clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from established facts.20
In its May 25, 2012 decision, OWCP properly exercised its discretion by notifying appellant that
it had considered the matter in relation to the issue involved and indicated that additional
argument and evidence could be submitted with a request for reconsideration. Consequently, it
properly denied her request for an oral hearing.
14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. §§ 10.616, 10.617.

17

Id. at § 10.616(a).

18

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
19

20 C.F.R. § 10.616; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.4(a) (October 2011)
20

Samuel R. Johnson, 51 ECAB 612 (2000).

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CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury to her back or neck in the performance of duty on September 16, 2011.
ORDER
IT IS HEREBY ORDERED THAT the May 25 and March 19, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 21, 2012
Washington, DC

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

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

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

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

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

Docket No. 18-0181
Issued: May 22, 2019

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 November 1, 2017 appellant filed a timely appeal of an August 11, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a left upper extremity
injury causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its August 11, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

On appeal appellant contends that the diagnostic reports of record establish that she
required left shoulder and elbow surgery due to her federal employment.
FACTUAL HISTORY
On May 10, 2016 appellant, then a 47-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 4, 2016 she fractured her left elbow while loading heavy tri
walls up ramps using a hand jack. She stopped work on May 7, 2016.
In a May 7, 2016 radiology report, Dr. Timothy G. DeZasiro, a Board-certified radiologist,
noted that three views of appellant’s left shoulder revealed no evidence of fracture, subluxation,
or acute articular abnormality of the glenohumeral or acromioclavicular joint spaces. The three
views of the left elbow suggested a subtle fracture of the coronoid process along its medial side.
In a development letter dated May 20, 2016, OWCP informed appellant that further evidence,
including medical evidence, was necessary to support her claim. It afforded appellant 30 days to
submit additional evidence.
In a May 22, 2016 statement, appellant recounted the history of her injury indicating that
her left shoulder and elbow began hurting a week before her claimed date of injury of May 4, 2016.
She noted that the pallets were heavy and that due to her shoulder pain she had requested help days
prior to push the pallets onto the trailer. Appellant stated that she did not want to continue to work
in that capacity due to her increased pain.
In a June 13, 2016 report, Dr. Kenneth McCulloch, a Board-certified orthopedic surgeon,
noted that appellant had a work-related injury on May 4, 2016 affecting her left elbow and left
shoulder. He diagnosed left elbow traumatic lateral epicondylitis and left shoulder rotator cuff
tendinopathy. Dr. McCulloch recommended obtaining a magnetic resonance imaging (MRI) scan
of appellant’s left elbow and left shoulder because appellant’s symptoms had been persistent
despite conservative measures. In a September 12, 2016 report, he summarized his treatment of
appellant. Dr. McCulloch noted that he had evaluated appellant on a monthly basis from May 16
through September 12, 2016. He noted that treatment of appellant’s symptoms has been
conservative including physical therapy, anti-inflammatories, and activity modification, but that
her symptoms had been persistent. Dr. McCulloch noted that appellant remained disabled from
her job with the employing establishment. He requested MRI scan studies. Dr. McCulloch listed
appellant’s diagnoses as impingement and rotator cuff tendinopathy of the left shoulder and left
elbow traumatic lateral epicondylitis. He further indicated that appellant was asymptomatic up
until acute change in function occurred on May 4, 2016 when she was lifting a very heavy object
and in the process of doing so injured her left shoulder and left elbow.
In a decision dated September 23, 2016, OWCP noted that appellant originally filed this a
traumatic injury claim, but it converted the claim into an occupational disease claim. It determined
that she established that employment factors occurred as alleged. However, OWCP denied
appellant’s claim because she had not established a causal relationship between the accepted
employment factors and the medical diagnosis.
On November 11, 2016 appellant requested reconsideration.

2

In a notice of occupational disease (Form CA-2) dated November 21, 2016, appellant noted
that she had originally filed her claim for traumatic injury; however, she sustained injury to her
left arm and shoulder due to loading trailers for a period exceeding two years. She related that the
weight of the pallets she was pushing on an incline ramp hurt her arm and shoulder.
On October 26, 2016 appellant had an MRI scan of her left shoulder, which was interpreted
by Dr. Michael Brown, a Board-certified radiologist, as showing moderate insertional
supraspinatus tendinosis and mild infraspinatus tendinosis.
On October 31, 2016 Dr. McCulloch released appellant to return to work on
December 12, 2016.
In a January 20, 2017 decision, OWCP conducted a merit review of appellant’s claim, but
denied modification of the September 23, 2016 decision as it determined that she had not
established a causal relationship between the diagnosed conditions and the accepted factors of her
federal employment.
Following the January 20, 2017 decision, OWCP received a December 22, 2016 report
from Dr. McCulloch which related that appellant was seen for injuries to her left shoulder and left
elbow which developed over a period of time as a result of her duties working as a mail handler
for employing establishment. Dr. McCulloch opined that her elbow injury was a repetitive stress
injury which occurred as a result of repetitive use of the left arm and elbow as a mail handler. He
further noted that appellant developed supraspinatus tendinosis and blunting of the supraspinatus
tendon on the humeral head with moderate impingement and superior labral tearing as well. Dr.
McCulloch noted that OWCP had denied the request for left shoulder arthroscopic intervention
and had also denied his request for an MRI scan of the left elbow. He noted that appellant’s
complaints were unchanged from previous multiple visits with pain and weakness in her left
shoulder, worse with overhead movement, which was adversely impacting her activities of daily
living. Dr. McCulloch noted that she had no improvement with conservative measures and
reported pain on a visual analog scale of 8/10. He noted that appellant continued to have pain and
weakness in the left elbow and had indicated that the lateral aspect of the elbow was the epicenter
of the pain. Dr. McCulloch noted that she had failed conservative therapy, and again requested
authorization for arthroscopic surgical intervention for the left shoulder. He concluded that
appellant’s left elbow injury was a repetitive stress injury that was the result of repetitive twisting,
pushing and pulling of the arm and required a high-field 3.0 Tesla MRI scan. Dr. McCulloch
related that the history of injury provided by appellant, the physical examination, and diagnosis
corresponded. Therefore, he opined that the conditions were causally related to appellant’s work
as a mail handler. Dr. McCulloch noted that she remained disabled from her job.
In a March 16, 2017 report, Dr. McCulloch added that the history of appellant’s onset of
symptoms and job requirements, which included repetitive use of her shoulder and arm for lifting,
pushing, pulling, grasping, twisting of up to 70 pounds, were consistent with appellant’s injuries.
He also noted that she had no previous history of injury to her left shoulder or elbow.
Dr. McCulloch responded to OWCP’s opinion by stating that the mechanism of the injury was
very clear and that appellant injured her left shoulder and left elbow with repetitive use of her left
shoulder and arm lifting, pushing, pulling, twisting heavy items up to 70 pounds, including

3

pronating, supinating flexing, and extending, which led to rotator cuff and labral tears of the left
shoulder and lateral epicondylitis of the left elbow.
In an April 27, 2017 report, Dr. McCulloch again noted that appellant developed pain in
her left shoulder and elbow over a period of time due to repetitive flexing, extending, supinating
and pronating the left elbow and with lifting, pushing and pulling involving abduction, forward
flexion, eternal rotation and internal rotation of the left shoulder, and repetitive lifting up to 70
pounds. He opined that, as a result, she developed supraspinatus tendinitis with intrasubstance
tearing of the rotator cuff and superior labral tearing injuries that are known to be produced by her
work activities which have been carefully documented in each of his visits with appellant.
Dr. McCulloch further noted that appellant was reporting deterioration in her left shoulder and left
elbow function as a result of the delay in receiving medical treatment. He concluded that she
remained disabled due to her injury.
On May 15, 2017 appellant requested reconsideration.
In a June 13, 2017 report, Dr. McCulloch noted that, on multiple occasions, he had
carefully documented the history and mechanism of appellant’s injury, including the findings on
physical examination that were consistent with her history of injury. He argued that OWCP’s
denial of appellant’s claim was erroneous.
By decision dated August 11, 2017, OWCP denied modification of it prior decisions. It
found that appellant’s treating physician had not provided a diagnosis supported by diagnostic
testing.
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,3 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.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying the employment factors alleged to have caused or contributed to the presence or
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
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).

4

occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.6
Whether an employee sustained an injury requires the submission of rationalized medical
opinion evidence.7 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical evidence explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.8 The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9
Proceedings under FECA are not adversarial is nature, nor is OWCP a disinterested
arbiter. OWCP shares the responsibility in the development of the evidence to see that justice is
done.11
10

ANALYSIS
The Board finds that this case is not in posture for decision.
An employee who claims benefits under FECA has the burden of establishing by the weight
of reliable, probative, and substantial evidence that the condition for which compensation is sought
is causally related to a specific employment incident or work factors. As part of this burden, the
employee must present rationalized medical opinion evidence based on a complete and accurate
factual and medical background. However, it is well established that proceedings under FECA are
not adversarial in nature and OWCP is not a disinterested arbiter. While an employee has the
burden to establish entitlement to compensation, OWCP shares responsibility in the development
of the evidence and has the obligation to see that justice is done.12
The issue is whether appellant sustained a left upper extremity injury causally related to
the accepted factors of her federal employment as a mail handler.
The evidence establishes that appellant performed heavy work pushing pallets up ramps,
using a hand jack. OWCP converted the claim to an occupational disease claim and accepted the
6

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

7

See J.Z., 58 ECAB 388 (2008); see also M.H., Docket No. 15-0849 (issued July 22, 2016).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

James Mack, 43 ECAB 321 (1991).

10

J.D., Docket No. 17-1520 (issued February 20, 2018).

11

William J. Cantrell, 34 ECAB 1233 (1983).

12

L.K., Docket No. 14-1072 (issued August 3, 2015).

5

alleged factors of employment, but initially denied the claim because the medical evidence was
insufficient to establish that work factors caused or aggravated the diagnosed conditions. In the
last decision dated August 11, 2017, OWCP denied the claim, finding that appellant’s diagnosed
conditions were not supported by objective medical findings.
Dr. Desario and Dr. Brown conducted diagnostic studies. In a May 7, 2016 report,
Dr. Desario noted that x-rays of appellant’s left elbow suggested a subtle fracture of the coronoid
process long the medial side. Dr. Brown interpreted appellant’s October 26, 2016 left shoulder
MRI scan as showing moderate insertional supraspinatus tendinosis and mild infraspinatus
tendinosis.
Appellant’s treating orthopedic surgeon, Dr. McCulloch, diagnosed left elbow traumatic
lateral epicondylitis and left shoulder rotator cuff tendinopathy. He opined that appellant’s elbow
and shoulder injuries occurred as a result of repetitive use of the left arm and elbow as a mail
handler. Specifically, Dr. McCulloch noted that appellant’s injuries were the result of repetitive
twisting, pushing, and pulling of the arm which included abduction, forward flexion, external
rotation, and internal rotation of the left shoulder. He also noted that her injuries were due to
twisting heavy items weighing up to 70 pounds, which included pronating, supinating flexing, and
extending, leading to rotator cuff and labral tears of he left shoulder and lateral epicondylitis of
the left elbow. Dr. McCulloch stated that he had treated appellant on a monthly basis since her
injury and carefully documented the history and mechanism of appellant’s injury. He opined that
the findings on physical examination were consistent with appellant’s history and job description.
Despite Dr. McCullouch’s insistence that appellant’s diagnosed conditions were related to
her employment as a mail handler, OWCP denied her claim, finding that his conclusions are not
supported by diagnostic testing. However, Dr. McCulloch provided numerous medical reports,
which contained accurate descriptions of appellant’s job duties, the tasks she performed, a
description of physical findings, and a discussion as to how appellant’s job duties caused her
diagnosed conditions of left elbow traumatic lateral epicondylitis and left shoulder rotator cuff
tendinopathy. While his opinion may not be sufficient to discharge appellant’s burden of proof,
these reports sufficiently support his diagnoses and causal relationship to require further
development of the case record by OWCP.13
Upon return of the case record, OWCP should forward the medical record and a statement
of accepted facts for a second opinion as to the diagnoses of appellant’s left upper extremity
conditions and whether any such diagnosed conditions are causally related to the accepted factors
of appellant’s federal employment. After this and any other such further development of the case
record as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision as further development of the
medical evidence is necessary.

13

See John J. Carlone, 41 ECAB 153 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

ORDER
IT IS HEREBY ORDERED THAT the August 11, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: May 22, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, U.S. PRISON
LEAVENWORTH, Leavenworth, KS, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-679
Issued: October 22, 2009

Case Submitted on the Record

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

JURISDICTION
On January 12, 2009 appellant filed a timely appeal from an October 22, 2008 decision of
the Office of Workers’ Compensation Programs that found that he had the capacity to earn
wages as a surveillance system monitor and a December 1, 2008 decision that denied his request
for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to reduce appellant’s
wage-loss benefits based on his capacity to earn wages as a surveillance system monitor; and
(2) whether the Office properly refused to reopen his claim for further review of the merits
pursuant to 5 U.S.C. § 8128(a).
Appellant argues on appeal that the Office did not meet its burden of proof as it chose to
select a remote opinion of an attending physician, who stopped treating him two years prior over
the opinion of another treating physician.

FACTUAL HISTORY
On July 8, 1992 appellant, then a 35-year-old correctional officer, sprained his right ankle
while responding to an alarm at work. He stopped work that day and returned on
August 15, 1992. On September 8, 1992 the Office accepted that claim for right ankle sprain.1
On April 22, 2003 appellant filed a claim, alleging that on April 18, 2003 he sustained a
recurrence of disability, due to the 1992 injury. He stopped work on April 22, 2003. On
April 30, 2003 Dr. Susan K. Bonar, a Board-certified orthopedic surgeon, performed a right
ankle ligament repair. In a July 31, 2003 decision, the Office found that appellant did not sustain
a recurrence of disability on April 18, 2003.2
Appellant returned to work on
September 29, 2003.
On November 24, 2003 appellant filed a Form CA-1, traumatic injury claim, alleging that
on November 23, 2003 he sprained his right ankle when he slipped at work. He stopped work
that day and returned on December 1, 2003.3 On April 7, 2004 the Office accepted that appellant
sustained a right ankle sprain.
By decision dated May 12, 2004, an Office hearing representative affirmed the July 31,
2003 decision.
In February 2005, appellant was referred to Dr. Edward J. Prostic, a Board-certified
orthopedic surgeon, for a second opinion evaluation. By report dated March 21, 2005,
Dr. Prostic reviewed the medical record, statement of accepted facts and his complaints of
significant right ankle pain. He provided findings on physical examination and diagnosed
osteoarthritis of the tibiotalar and subtalar joints of the right ankle. Dr. Prostic advised that the
recommended surgery was appropriate. In an attached work capacity evaluation, he provided
restrictions to his physical activity advising that he could walk and stand for two hours daily and
could push, pull, lift, squat, kneel and climb less than one hour daily with a 20-pound weight
restriction.
On June 17, 2005 Dr. Bonar performed a right ankle fusion, a right subtalar fusion and a
posterior iliac crest bone graft. On September 6, 2005 she advised that appellant could return to
work with the restriction of sit-down duties only. On October 21, 2005 Dr. Bonar advised that
appellant should sit 95 percent of the time. On December 2, 2005 she advised that appellant
could walk two hours daily and he returned to limited duty on February 12, 2006.
In a May 9, 2006 report, Dr. Greg A. Horton, Board-certified in orthopedic surgery, noted
appellant’s complaint of continued right ankle pain and mild swelling. He provided physical
examination findings and reviewed computerized tomography (CT) scans, which he described as
showing nonunion. Dr. Horton recommended a revision surgical procedure. On July 21, 2006
he performed right ankle fusion, subtalar fusion and bone graft. Appellant stopped work that day
and returned to limited duty on August 27, 2006 with restrictions of nonweight-bearing. On
1

The record indicates that appellant sustained a gunshot wound to his right ankle in the 1970s and had right ankle
arthroscopic surgery on November 7, 1984.
2

The 1992 right ankle injury was adjudicated by the Office under OWCP File No. xxxxxx310.

3

The 2003 right ankle injury was adjudicated by the Office under OWCP File No. xxxxxx724.

2

September 5, 2006 Dr. Horton advised that appellant could only perform sedentary work. A
functional capacity evaluation performed on February 13, 2007 advised that appellant could
perform light to medium work but was limited regarding his right lower extremity due to poor
balance, lack of equal bilateral weight-bearing and deviated gait. On February 27, 2007
Dr. Horton advised that appellant was at maximum medical improvement. He provided
permanent restrictions of less than one hour walking and standing, pushing 80 pounds for less
than one hour, pulling 60 pounds for less than one hour, lifting 10 pounds from floor for less than
one hour, no squatting, kneeling or climbing, eight hours sitting and no driving at work.
Dr. Horton concluded that appellant needed no further surgery and he would see appellant in the
future if new problems were to arise.
Appellant was removed from the employing establishment effective April 30, 2007 and
was placed on the compensation roll.
In a May 16, 2007 report prepared for appellant’s attorney, Dr. Lynn A. Curtis, a Boardcertified physiatrist, reviewed appellant’s work history, some medical records and noted his
complaint of 5/10 right ankle pain with the inability to walk more than 100 feet at a time. She
performed physical examination, diagnosed chronic ankle pain and performed an impairment
evaluation. Dr. Curtis advised that appellant could perform sedentary work for eight hours a day
with restrictions that he sit for six hours, stand for two, be allowed to change position as needed,
could lift 5 pounds frequently and 10 pounds occasionally but lift nothing from the floor and
could not crawl, kneel or climb.
On May 29, 2007 appellant was referred to Gina Bankowski, a rehabilitation counselor,
for vocational rehabilitation. By decision dated May 31, 2007, the Office vacated the July 31,
2003 decision denying his recurrence of disability claim. It authorized the April 30, 2003
surgery and disability from work for the period April 30 to August 31, 2003. The record reflects
that reemployment efforts were unsuccessful.
On September 21, 2007 Ms. Bankowski identified the positions of surveillance system
monitor and gambling cashier as within the sedentary strength category, with occasional lifting
of 10 pounds and no climbing, kneeling, crawling or crouching. She advised that the positions
were reasonably available in the local labor market at a weekly wage of $458.00 and $478.00
respectively. By letter dated September 5, 2008, the Office proposed to reduce appellant’s wageloss benefits based on his capacity to earn wages as a surveillance system monitor. Appellant,
through his attorney, disagreed with the proposed reduction. In a September 17, 2008 note,
Dr. Mark D. Strehlow, Board-certified in family medicine, stated that appellant had been on
permanent disability for several years secondary to injuries to his right ankle and foot. He
advised that appellant had severe chronic pain and was restricted in any capacity and from
driving due to the use of chronic long-acting morphine pain medication.
By decision dated October 22, 2008, the Office reduced appellant’s compensation
benefits, effective October 26, 2008, based on his capacity to earn wages as a surveillance
system monitor, based on the restrictions provided by Dr. Horton.
On November 23, 2008 appellant’s attorney requested reconsideration, contending that
the Office erred by selecting the opinion of one of appellant’s attending physicians over the

3

other. Moreover, the selected position was not suitable. In a December 1, 2008 decision, the
Office denied appellant’s reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.5
Section 8115 of the Federal Employees’ Compensation Act6 and the implementing
federal regulations provide that wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
the employee has no actual earnings, his wage-earning capacity is determined with due regard to
the nature of his injury, the degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors or
circumstances which may affect his wage-earning capacity in his disabled condition.7
The Office must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which the Office relies must provide a detailed description of the
condition.8 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.9
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.10 Finally, application of the principles set forth in Albert C. Shadrick,11 as codified in

4

James M. Frasher, 53 ECAB 794 (2002).

5

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 5.

8

William H. Woods, 51 ECAB 619 (2000).

9

John D. Jackson, supra note 5.

10

James M. Frasher, supra note 4.

11

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

4

section 10.403 of the Office’s regulations,12 will result in the percentage of the employee’s loss
of wage-earning capacity.13
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairments resulting from both injury related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.14
ANALYSIS -- ISSUE 1
Dr. Horton’s February 27, 2007 report and Dr. Curtis’ May 16, 2007 report established
that appellant was no longer totally disabled due to his accepted condition. The Office properly
referred appellant for vocational rehabilitation counseling in May 2007.15 Because appellant was
unable to secure employment, on September 21, 2007 Ms. Bankowski, the vocational
rehabilitation counselor, identified two positions that were within his capabilities. The Office
determined that he had the capacity to earn wages as a surveillance system monitor, based on
Dr. Horton’s reports.
The Board finds that the Office met its burden of proof in reducing appellant’s wageearning capacity based on his ability to earn wages as a surveillance system monitor. On
February 27, 2007 Dr. Horton advised that appellant was at maximum medical improvement and
could work eight hours a day with permanent restrictions of less than one hour walking and
standing, pushing 80 pounds less than one hour; pulling 60 pounds less than one hour, lifting 10
pounds from floor less than one hour, no squatting, kneeling or climbing, eight hours sitting and
no driving at work. In a May 16, 2007 report, Dr. Curtis essentially agreed with the restrictions
provided by Dr. Horton. She found that appellant could perform sedentary work for eight hours
a day with restrictions that he sit for six hours, stand for two, be allowed to change position as
needed, could lift 5 pounds frequently and 10 pounds occasionally but lift nothing from the floor
but could not crawl, kneel or climb.
In a September 21, 2007 report, the Office vocational rehabilitation counselor determined
that appellant was able to perform the position of a surveillance system monitor. She provided a
job description and advised that it required sedentary strength and with occasional lifting of 10
pounds and no climbing, kneeling, crawling or crouching. The Office vocational rehabilitation
counselor noted that the position was available in sufficient numbers so as to make it reasonably

12

20 C.F.R. § 10.403.

13

James M. Frasher, supra note 4.

14

John D. Jackson, supra note 5.

15

5 U.S.C. § 8104(a); see Ruth E. Leavy, 55 ECAB 294 (2004).

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available within appellant’s commuting area and that the weekly wage of the position was
$458.00.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he was not able to perform the surveillance system monitor position. The brief September 17,
2008 note of Dr. Strehlow did not provide a rationalized opinion on whether appellant could
perform the surveillance system monitor position. Dr. Strehlow noted that appellant had chronic
pain and recommended that he not work or drive due to his medication. He did not provide a
rationalized explanation addressing the duties of the constructed position; and merely stated that
appellant was restricted due to ankle pain and medication. In assessing medical evidence, the
number of physicians supporting one position or another is not controlling. The weight of such
evidence is determined by its reliability, its probative value and its convincing quality. The
factors that comprise the evaluation of medical evidence include the opportunity for and the
thoroughness of physical examination, the accuracy and completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion. The opinion of a physician must be of
reasonable medical certainty and must be supported by medical rationale explaining causal
relationship.16 Dr. Strehlow did not provide an opinion setting forth or addressing any findings
on examination of why appellant could not work at the constructed position. The weight of the
medical evidence, therefore, rests with the opinions of Drs. Horton and Curtis.
Appellant contends that the reports relied on by the Office were stale. The Office will
often develop rehabilitation plans following the receipt of work restrictions from an attending
physician in an effort to return the employee to gainful employment. When such efforts fail, a
constructed wage-earning capacity determination is developed. Such efforts do not necessarily
lend themselves to discrete time periods and must depend on the particular needs of the injured
employee.17 On February 27, 2007 Dr. Horton advised that appellant was at maximum medical
improvement and provided permanent work restrictions. On May 16, 2007 Dr. Curtis reiterated
that appellant was not totally disabled. Their medical reports stand in sharp contrast to the one
paragraph note from Dr. Strehlow. The Board finds that the weight of the medical evidence rests
with the opinions of Drs. Horton and Curtis. Their reports establish that appellant had the
requisite physical ability, skill and experience to perform the position of surveillance system
monitor.18 As the Office considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment, age and employment
qualifications in determining that the position of security desk personnel represented his wageearning capacity,19 the evidence of record establishes that he had the requisite physical ability,
skill and experience to perform the position of surveillance system monitor and that such a
position was reasonably available within the general labor market of his commuting area. The
Office, therefore, properly determined that the position of surveillance system monitor reflected

16

K.W., 59 ECAB ____ (Docket No. 07-1669, issued December 13, 2007).

17

M.A., 59 ECAB ____ (Docket No. 07-349, issued July 10, 2008).

18

Id.

19

James M. Frasher, supra note 4.

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appellant’s wage-earning capacity and using the Shadrick formula,20 properly reduced his
compensation effective October 26, 2008.21
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.22 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).23 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (i) shows that the
Office erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.24 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.25
ANALYSIS -- ISSUE 2
On reconsideration, appellant argued that the Office erred in selecting the opinion of one
of his physicians over the other and that the selected position was not suitable. As noted in the
December 1, 2008 Office decision denying merit review, he had presented this argument in an
October 3, 2008 letter in response to the notice of proposed reduction. Evidence or argument
that repeats or duplicates evidence previously of record has no evidentiary value and does not
constitute a basis for reopening a case.26 Consequently, appellant was not entitled to a review of
the merits of his claim based on the first and second above-noted requirements under section
10.606(b)(2).27
20

Albert C. Shadrick, supra note 11. In this case, the Office determined that appellant’s salary on April 30,
2007, the date his disability recurred, was $1,088.73 per week, that the current adjusted pay rate for his job was
$1,119.70 per week and that he was currently capable of earning $458.00 per week as a surveillance system monitor.
It, then determined that appellant had a 41 percent wage-earning capacity, which resulted in an adjusted wageearning capacity of $446.38 per week. The Office concluded that, based on a 75 percent rate, appellant’s new
compensation rate was $481.71 with cost-of-living adjustment and that his net compensation for each four-week
period would be $1,927.05.
21

James Smith, 53 ECAB 188 (2001).

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.608(a).

24

Id. at § 10.608(b)(1) and (2).

25

Id. at § 10.608(b).

26

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007).

27

20 C.F.R. § 10.606(b)(2).

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With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted no additional evidence with his November 23, 2008 reconsideration request. The
Office, therefore, properly denied his reconsideration request by its December 1, 2008 decision.
As appellant did not submit relevant and pertinent new evidence not previously considered by
the Office, it properly denied his reconsideration request.28
CONCLUSION
The Board finds that the Office met its burden of proof in reducing appellant’s wageearning capacity based on his ability to earn wages in the constructed position of surveillance
system monitor and properly refused to reopen his claim for further consideration of the merits
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 1 and October 22, 2008 be affirmed.
Issued: October 22, 2009
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

28

See Johnnie B. Causey, 57 ECAB 359 (2006).

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

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

Docket No. 17-1006
Issued: August 14, 2017

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 April 7, 2017 appellant filed a timely appeal from a December 21, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits in this case.
ISSUE
The issue is whether appellant met his burden of proof to establish back injury causally
related to an October 17, 2016 employment incident.
FACTUAL HISTORY
On October 17, 2016 appellant, then a 48-year-old distribution and retail clerk, filed an
occupational disease claim (Form CA-2) alleging that lifting heavy parcels over the window and
distributing parcels to the carriers aggravated his back pain. He became aware of his condition
1

5 U.S.C. § 8101 et seq.

and realized it was causally related to his employment on October 17, 2016. Appellant did not
stop work.
Appellant submitted a duty status report (Form CA-17) dated October 17, 2016 from a
physician assistant who noted clinical findings of reproducible pain with muscle spasm. The
physician assistant diagnosed thoracic pain, sprain, and strain and advised that appellant could
return to work with restrictions. In an October 17, 2016 referral form, he diagnosed acute rightsided thoracic back pain and referred appellant for physical therapy.
Appellant submitted physical therapy notes dated October 20, 2016 signed by a physical
therapist and cosigned by a physician assistant who noted that appellant was referred for
evaluation and treatment of acute right- and left-sided thoracic and lumbar back pain. The
physical therapist noted appellant’s history was significant for low back pain treated in
January 2016. He indicated that appellant would benefit from a thoracic and lumbar spine
strengthening program.
The employing establishment provided an accident report (PS Form 1769/301) which
indicated that on October 17, 2016, while working on the window, appellant handled a heavy
parcel, turned, and experienced pain from the shoulder to lower back. Appellant also indicated
that distributing parcels to carriers aggravated his pain. The cause/circumstance of the injury
was repetitive motions.
By letter dated November 4, 2016, OWCP advised appellant of the type of evidence
needed to establish his claim, particularly requesting that he submit a physician’s reasoned
opinion addressing the relationship of his claimed condition to his specific employment factors.
It also advised that a physician assistant did not qualify as a physician under FECA. OWCP
further indicated that it was unclear from the evidence received whether appellant was claiming
an occupational disease or a traumatic injury and requested that he clarify the type of injury
claimed.
In a statement dated November 16, 2016, appellant indicated that the employment
activities that contributed to his condition were breaking down parcels, sorting parcels into
routes, taking parcels over the counter at the front window, and sending them to their
destinations. He performed these duties six days a week for six hours a day. Appellant indicated
that he did not have activities outside of work. He noted that he was claiming a traumatic injury
and indicated that this was a preexisting injury from 2000 which was aggravated. Appellant
submitted a copy of an OWCP notice from the year 2000 which provided a File No. xxxxxx518
and a date of injury of May 6, 2000.2
Appellant submitted employing establishment medical records from February 15, 1995 to
September 23, 2002. On June 13, 2002 Dr. Timothy J. Craven, a Board-certified family
practitioner, performed a medical examination and noted appellant’s history was significant for
an old back injury from two years ago. Appellant also submitted physical therapy reports dated
October 20, 2016.

2

File No. xxxxxx518 is not before the Board on the present appeal.

2

In a December 21, 2016 decision, OWCP denied the claim, finding that appellant failed
to submit medical evidence establishing that a medical condition was diagnosed in connection
with the accepted work incident. Therefore, fact of injury was not established.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury. 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, an 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. Second, an employee must submit medical
evidence to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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 the claimant.6
ANALYSIS
It is undisputed that on October 17, 2016, while working as a clerk, appellant broke down
parcels, sorted parcels into routes, and lifted and handled parcels over the counter and sent them
to their destinations. Although he initially filed an occupational disease claim, he clarified on
November 16, 2016 that he was claiming a traumatic injury. While the work events of
October 17, 2016 are established, the Board finds that appellant failed to submit sufficient
medical evidence to establish that these work activities caused or aggravated a diagnosed back
condition. In a letter dated November 4, 2016, OWCP requested that appellant submit a
comprehensive medical report from his treating physician addressing causal relationship.
Appellant submitted employing establishment medical records from February 15, 1995 to
September 23, 2002. However, these records are of no probative value in establishing the

3

Supra note 1.

4

Gary J. Watling, 52 ECAB 357 (2001).

5

T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

claimed low back condition since they predate the time of the claimed condition of
October 17, 2016 and is irrelevant to the claim.7
Appellant was treated by a physician assistant on October 17, 2016. On October 20,
2016 he was treated by a physical therapist. The Board has held that notes signed by physician
assistants8 or physical therapists9 are not considered medical evidence as they are not considered
physicians under FECA.10 Thus, these treatment records are also of no probative medical value
in establishing appellant’s claim.
As noted, part of appellant’s burden of proof includes the submission of rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
causal relationship between the employment and the diagnosed condition. Therefore, these notes
are insufficient to meet appellant’s burden of proof.
The record contains no other medical evidence. Because appellant has not submitted
reasoned medical evidence explaining how or why a diagnosed back condition is causally related
to the work incident of October 17, 2016, he has not met his burden of proof.
On appeal appellant contends that he had injured his back in 2000 and was in physical
therapy for several months. In October 2016, he was lifting a parcel from the front window line
and twisted wrong and reinjured his back in the same place. As found above, the medical
evidence of record is insufficient to establish that appellant has a diagnosed medical condition
causally related to his accepted work incident. Appellant has not submitted a physician’s report
which describes how or why the work incident on October 17, 2016 caused or aggravated a low
back condition.11
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.

7

See E.P., Docket No. 15-1746 (issued December 3, 2015) (the Board found that medical evidence which
predated the date of injury was of no value and was irrelevant to the claim).
8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (reports of a physician assistant have no probative value as
medical evidence).
9

See L.W., Docket No. 16-1317 (issued June 21, 2017) (reports of a physical therapist have no probative value as
medical evidence).
10

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law). See also Paul Foster, 56 ECAB
208 (2004) where the Board found a nurse practitioner was considered a physician under FECA.
11

To the extent that appellant attributes his current back condition to a prior injury adjudicated under a separate
claim file, he my contact OWCP regarding pursuing the matter under the separate claim file.

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back injury
causally related to the accepted October 17, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1020
Issued: November 1, 2018

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 April 19, 2018 appellant, through counsel, filed a timely appeal from a February 28,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from OWCP’s last merit decision, dated December 1, 2016, 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 over the merits of the case.

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

5 U.S.C. § 8101 et seq.

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
On December 4, 2011 appellant, then a 39-year-old screener, filed a traumatic injury claim
(Form CA-1) alleging that, on December 4, 2011, he sustained injury while at work when pulling
a heavy bag from an x-ray machine. He stopped work on the date of injury and returned to work
the next day.
OWCP initially accepted appellant’s claim for thoracic and cervical sprains.
On February 10, 2012 appellant underwent OWCP-authorized surgery, including anterior
arthrodesis and removal of disc osteophyte complex with hardware placement device at C4-5.3
OWCP later expanded the acceptance of appellant’s claim to include conditions of cervical
herniated disc at C4-5, cervical myelopathy, dysphagia, complete left rotator cuff rupture, deep
vein thrombosis of the left leg, and pulmonary embolism.
Appellant stopped work on February 10, 2012 and received disability compensation on the
daily rolls beginning February 11, 2012. He received disability compensation on the periodic rolls
beginning October 21, 2012.
In a November 19, 2012 report, Dr. Lizette Alvarez, an attending Board-certified physical
medicine and rehabilitation physician, noted that appellant reported that he had been experiencing
bladder urgency since his February 10, 2012 surgery, but was too embarrassed to tell anyone. She
recommended that appellant visit a urologist to evaluate whether he had a neurogenic bladder and
noted that she suspected his bladder problems were a result of the cervical myelopathy.
On January 9, 2013 OWCP referred appellant for a second opinion examination to
Dr. Robert Sciortino, a Board-certified orthopedic surgeon. It requested that Dr. Sciortino evaluate
the current nature of appellant’s cervical condition and determine whether any additional
conditions were associated with the injury.
In a January 25, 2013 report, Dr. Sciortino noted that appellant reported that he had
developed bladder and sexual dysfunction symptoms. Regarding any additional diagnoses, he
reported that appellant’s large herniated C4-5 disc created significant cord compression which
caused weakness in the entire left side of his body, as well as in his right upper extremity. This
condition produced some urinary difficulties and sexual dysfunction, which Dr. Sciortino opined
that were entirely related to the December 4, 2011 work injury.

3
On July 6, 2012 appellant fell off a swimming platform at a lake when his left knee buckled. He fell onto his right
side, hitting a jet ski, and then landed face first in the water.

2

In a March 4, 2013 report, Dr. Luis Anglo, an attending Board-certified urologist, noted
that appellant reported that over the past seven plus months he had noticed more urgency to urinate
and occasional urge incontinence. He advised that appellant also reported complaints of sexual
dysfunction since his cervical accident. Dr. Anglo diagnosed urge incontinence and impotence of
organic origin.
On March 27, 2013 Dr. Anglo performed an unapproved cystoscopy, documenting that
appellant’s bladder/urethra was normal. In several reports from mid-2013, Dr. Alvarez continued
to note that appellant had possible erectile dysfunction.
On July 19, 2013 appellant underwent cervical surgery, including C4-5 hardware removal,
anterior fusion, and discectomies with hardware placement from C5-7. On August 15, 2013 he
underwent left shoulder labral repair, subacromial decompression, and distal clavicle resection.
In a December 9, 2013 report, Dr. Anglo noted that he first saw appellant on March 4, 2013
for multiple urinary complaints and most notably urge incontinence. He indicated that a post void
residual check was performed as a spinal injury or surgery could predispose a person to urinary
difficulty secondary to retention from loss of motor function or bladder hyperactivity. Dr. Anglo
indicated that appellant reported that his symptoms seemed to occur with his injury and certainly
were worse after surgical intervention. He noted that appellant also related difficulties attaining
and maintaining erections after his injury/surgery, which appellant indicated that certainly could
be neurogenic in origin. Dr. Anglo indicated that, although he could not conclusively say that
appellant’s troubles with his voiding and erectile dysfunction were not exactly related, it did seem
“from a history and timing standpoint that it certainly was contributory in light of him not reporting
problems previously.”
In a December 11, 2013 report, Dr. Todd J. Stewart, an attending Board-certified
neurosurgeon, indicated that appellant essentially had a spinal cord injury from the initial
compression and he opined that appellant’s problems with urinary urgency and erectile
dysfunction were related to this cervical cord compression.
On March 3, 2014 OWCP referred appellant’s case to Dr. Daniel Zimmerman, a Boardcertified internist, to serve as an OWCP medical adviser. It requested that Dr. Zimmerman address
the potential consequential conditions of erectile dysfunction and urge incontinence.
In a March 5, 2014 report, Dr. Zimmerman indicated that urge incontinence and erectile
dysfunction could be the consequence of the cervical spine accepted conditions, behavioral health
issues in terms of his marital breakup in April 2013 (in reference to his erectile dysfunction), and/or
the use of medications. He noted that the post void residual check amount reported by Dr. Anglo
did not suggest a neurogenic bladder, as claimed to be the diagnosis by Dr. Alvarez.
Dr. Zimmerman indicated that urge incontinence was subjective and that there was nothing in the
urologic records indicating that appellant had actual urinary incontinence, such as wet under
clothing or using pads for dribbling. He opined that, for much the same reasons, erectile
dysfunction could not be accepted as a consequential diagnosis. Dr. Zimmerman recommended
pursuing urologic work up to further consider the symptoms in terms of consequential conditions.

3

In an April 16, 2014 discharge report, Dr. Stewart opined that appellant’s bladder issues
were directly and causally related to his cervical spinal cord compression.
In an August 4, 2014 letter, appellant’s former counsel requested expansion of the
acceptance of the claim for urinary incontinence and erectile dysfunction due to the employmentrelated compression on his cervical cord, based on Dr. Stewart’s reports.
In a September 3, 2014 report, Dr. Michael Chehval, an attending Board-certified
urologist, noted that appellant was being evaluated for erectile dysfunction, noting that he had a
cervical neck injury one and a half years ago, with subsequent urinary urgency and urge leakage
and poor erections.
On October 10, 2014 OWCP referred appellant for a second opinion examination with
Dr. Carlos Deleste, a Board-certified urologist. It requested that Dr. Deleste evaluate whether
appellant had employment-related urinary or erectile dysfunction conditions.
In an October 23, 2014 report, Dr. Deleste detailed appellant’s factual history, noting that
appellant reported urgency in urination as moderate and urinary incontinence as minimal, with no
dysuria, hematuria, leakage, or pad usage. Appellant reported that erectile dysfunction was an
issue a few weeks post injury. Dr. Deleste reported that the results of urinalysis were negative.
He summarized appellant’s findings as limited turning of motion of his neck, a left varicocele and
walking with a slight drop foot, claims of numbness of his thighs anteriorly, absent
bulbocavernosus, claimed depression, urgency incontinence without frequency, dysuria times
three, and nocturia one time. Dr. Deleste indicated that there was “a conflict for cervical trauma
causing urine urgency incontinence without frequency” because usually there was associated
frequency. He advised that the absent bulbocavernosus reflex was caused by lower spinal cord
injury in the lumbosacral region, and noted that the anal sphinctertone was normal. Dr. Deleste
opined that the occurrence of erectile dysfunction and urgency incontinence could not be
substantiated by cervical trauma alone and noted depression was a contributing factor. He
determined that appellant did not require any work restrictions.
By decision dated January 8, 2016, OWCP denied expansion of the acceptance of
appellant’s claim for the conditions of urinary incontinence and erectile dysfunction, finding that
the weight of the medical opinion evidence rested with the second opinion urologist, Dr. Deleste,
who found that these conditions were not causally related or consequential to the December 4,
2011 employment injury.
On January 10, 2016 appellant, through his former counsel, requested a hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
September 16, 2016, appellant testified that his urinary incontinence and erectile dysfunction
began after his December 4, 2011 employment injury.
By decision dated December 1, 2016, OWCP’s hearing representative affirmed OWCP’s
January 8, 2016 decision. The hearing representative determined that the weight of the medical
opinion evidence with respect to appellant’s claim expansion continued to rest with the opinion of
Dr. Deleste.

4

On November 30, 2017 appellant’s present counsel requested reconsideration of the
December 1, 2016 on behalf of appellant. In a November 30, 2017 memorandum, he argued that
the medical evidence of record established appellant’s claim for expansion of the accepted
conditions to include urinary incontinence and erectile dysfunction. Counsel discussed various
medical reports which he believed supported appellant’s claim, including Dr. Sciortino’s
January 25, 2013 report, Dr. Anglo’s December 9, 2013 report, and Dr. Stewart’s December 11,
2013 report. He also argued that Dr. Deleste’s October 23, 2014 report was insufficient to
constitute the weight of the medical opinion evidence with respect to appellant’s request for the
expansion of the acceptance of his claim to include additional conditions. Counsel cited Board
precedent which he believed showed that appellant’s case should have been further developed with
respect to the urinary incontinence and erectile dysfunction conditions.
Appellant submitted a November 28, 2016 report from Dr. Stewart who detailed
appellant’s continuing complaints of upper and lower extremity symptoms, as well as urinary
incontinence and erectile dysfunction. Dr. Stewart indicated that appellant was able to perform
limited-duty work with restrictions on lifting duties and noted, “[Appellant] has significant
weakness in his distal left foot and is myelopathic with balance problems, urinary incontinence
and erectile dysfunction related to his initial cord compression and injury to his cord.”
By decision dated February 28, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence
and argument submitted by him was repetitious or irrelevant.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.4
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.5 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.6 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.7

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7

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

5

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 For OWCP decisions issued on or after
August 29, 2011, the date of the application for reconsideration is the “received date” as recorded
in the Integrated Federal Employees’ Compensation System (iFECS).9
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record10 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board must consider whether appellant’s timely request for reconsideration met any
of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for further
review of the merits of the claim. The Board finds that his request for reconsideration did not
show that OWCP erroneously applied or interpreted a specific point of law, advance a new and
relevant legal argument not previously considered by OWCP, or constitute relevant and pertinent
new evidence not previously considered by OWCP.12
In support of his request for reconsideration, appellant submitted a November 30, 2017
memorandum in which counsel argued that the medical evidence of record established his claim
for expansion of the accepted conditions to include urinary incontinence and erectile dysfunction.
The Board notes that OWCP has already considered and rejected this argument. Counsel discussed
various medical reports from attending physicians which he believed supported appellant’s claim,
including Dr. Sciortino’s January 25, 2013 report, Dr. Anglo’s December 9, 2013 report, and
Dr. Stewart’s December 11, 2013 report. He also argued that Dr. Deleste’s October 23, 2014
report was insufficient to constitute the weight of the medical opinion evidence with respect to
appellant’s expansion claims. However, OWCP has already considered these reports, finding that
the attending physician reports were insufficient to establish appellant’s expansion claim and that
Dr. Deleste’s report constituted the weight of the medical opinion evidence. Counsel further
argued that, at the very least, appellant’s case should have been further developed with respect to
the claimed urinary incontinence and erectile dysfunction conditions. This argument has already
been considered and rejected by OWCP in that it has been determined that the weight of the
medical evidence continues to rest with Dr. Deleste’s opinion with no need for further
development. Because counsel’s argument repeats or duplicates argument in the case record, the
8

Id. at § 10.607(a).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014).
10

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

11

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

12

See supra note 5.

6

Board finds that appellant’s submission of this argument does not require reopening his claim for
review on the merits.13
The Board notes that the underlying issue of this case, i.e., whether rationalized medical
evidence establishes appellant’s claimed additional conditions as causally related to his
December 4, 2011 employment injury, is a medical issue which must be addressed by relevant
medical evidence.14
Appellant submitted a November 28, 2016 report of Dr. Stewart in which he described
appellant’s current symptoms/condition and indicated that he could return to limited-duty work.
Dr. Stewart noted that appellant had urinary incontinence and erectile dysfunction “related to his
initial cord compression and injury to his cord.” The Board finds, however, that this report is
similar to previously considered reports of Dr. Stewart, including those dated December 11, 2013
and April 16, 2014, in which Dr. Stewart found that appellant had employment-related urinary
incontinence and erectile dysfunction, but did not provide any explanation for such an opinion.
Therefore, the submission of the Dr. Stewart’s November 28, 2016 report does not constitute a
basis for reopening a case.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

13

See supra note 10.

14

See Bobbie F. Cowart, 55 ECAB 746 (2004).

15

See supra note 10.

7

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2018
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

8