United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, Annandale, VA, Employer
__________________________________________

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

Docket No. 15-0989
Issued: July 29, 2015

Case Submitted on the Record

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

JURISDICTION
On March 30, 2015 appellant filed a timely appeal from a January 21, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of October 24, 2011 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this claim.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the January 21, 2015 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt,
57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits because her request was not timely filed and did not establish clear evidence
of error.
FACTUAL HISTORY
On February 8, 2010 appellant, then a 50-year-old enforcement assistant, filed an
occupational disease claim alleging that she developed right hand and wrist pain as a result of
repetitive clerical work, including moving boxes and employing cabinets of legal folders. She
first became aware of her condition and realized it resulted from her employment on
May 29, 2009. The record indicates that appellant intermittently used sick and annual leave, but
did not stop work.
Appellant received treatment from Dr. Terence B. Thompson, a Board-certified family
practitioner. In a handwritten February 26, 2010 prescription note, Dr. Thompson related her
complaints of a hand injury and lower back pain and noted that she was off work from
February 22 to April 19, 2010. In a June 18, 2010 work status note, he requested that appellant
remain off work until August 22, 2010.
By letter dated April 2, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested a detailed description of the employment-related
activities which she believed caused her condition and a medical report from a physician with
examination results, a medical diagnosis, and an opinion based on medical rationale on the cause
of her medical condition.
In a decision dated May 7, 2010, OWCP denied appellant’s claim. It found that the
factual evidence was not sufficient to identify the specific employment factors that she believed
caused her alleged condition and that the medical evidence failed to demonstrate that she
sustained a diagnosed condition as a result of factors of her employment.
Appellant requested reconsideration, received by OWCP on June 29, 2010. In a May 10,
2010 statement, appellant reported that she began to work for the employing establishment on
September 5, 2007 doing physically exhausting labor such as emptying cabinets of legal folders,
packing folders, loading boxes of folders onto the carrier, and unloading the boxes to another
part of the office. She described how from 2007 to 2010 she organized boxes and folders,
created an inventory list of over 700 close folders and uniform system of files, and worked as an
assistant. Appellant stated that her daily duties caused her physical pain and exhaustion. She
related that a couple of months prior she experienced dizziness and had no coordination between
her head, neck, and upper and lower extremities. Appellant also noted that she often experienced
muscle spasms in her arm and hand when walking, sitting, or leaning.
Appellant submitted medical reports from 2007 and 2008. In an October 26, 2007 note,
Dr. Shaliman Eivazzadeh, a Board-certified family practitioner, stated that appellant was
examined for severe myalgia of both hands because of overuse. On April 7, 2008 appellant was
examined in the emergency room by Dr. Mai Lai, Board-certified in emergency medicine, for

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complaints of back pain after she did some gardening. Dr. Lai indicated that she could return to
work on April 9, 2008.
Appellant also provided various diagnostic reports. In a March 4, 2010 diagnostic report,
Dr. Satoshi Tateshima, a Board-certified diagnostic radiologist, stated that appellant had a
dilation of the distal left supraclinoid internal carotid artery and that a magnetic resonance
imaging (MRI) scan revealed evidence of hemorrhage or other pathology. In a May 21, 2010
MRI scan of the lumbar spine, Dr. Brian F. King, a Board-certified diagnostic radiologist, noted
appellant’s complaints of chronic low back pain from a lifting injury. He observed broad-based
posterior 2 to 3 millimeter (mm) annular disc bulge resulting in mild late recess stenosis, slight
compression of the L5 nerve roots, and mild L4 neural foraminal stenosis. In a June 10, 2010
electromyography and nerve conduction study examination, Dr. A. Elizabeth Bloze, Boardcertified in physical medicine and rehabilitation, diagnosed right carpal tunnel syndrome with
denervation with no evidence of right Guyon’s, cubital or radial tunnel syndrome.
In a May 26, 2010 report, Dr. Judy F. Lane, a chiropractor, examined appellant for
evaluation and treatment related to musculoskeletal problems that she had experienced for the
past three to four months. She noted that appellant was extremely disturbed about her work
environment and overwhelmed by her workload. Dr. Lane diagnosed lumbosacral somatic
dysfunction, radicular neuritis, cervical somatic dysfunction, and upper extremity somatic
dysfunction.
On June 3, 2010 appellant was examined by Dr. Bloze, who related appellant’s
complaints of pain in the low back radiating down both legs and pain in her right hand and wrist.
Dr. Bloze noted that appellant had a history of intermittent back pain since 2008 and that a recent
MRI scan of the lumbar spine revealed a two mm disc protrusion at L4-5. She diagnosed
possible right carpal tunnel syndrome. Dr. Bloze reported that appellant believed that her low
back pain was a result of lifting boxes at work.
In a June 4, 2010 prescription note, Dr. Richard E. Nussbaum, a Board-certified
orthopedic surgeon, stated that appellant was seen in the office on May 26, 2010 for lumbar
spine complaints. He noted a diagnosis of lumbar spine disc displacement.
Appellant was also examined by Dr. Paul Simic, a Board-certified orthopedic surgeon,
who noted in a June 9, 2010 report that she complained of right hand pain and numbness for the
past three months. Upon examination, Dr. Simic observed mild tenderness to palpation volarly
and intact extensor mechanisms and flexor digitorum superficials. Sensation was intact to light
touch and motor examination was 5/5 throughout. Dr. Simic diagnosed right hand carpal tunnel
syndrome.
On July 26, 2010 Lydia Morales, one of appellant’s supervisors, responded and provided
comments about appellant’s May 10, 2010 statement. She stated that appellant began to work as
an enforcement assistant in September 2007. Ms. Morales noted that, almost immediately after
appellant began to work, she began wearing a wrist bandage and stated that it was for support
and comfort and was not related to her employment. She reported that the employing
establishment could not corroborate or confirm several incidents where appellant described that
she felt pain because she failed to report it to her supervisor. Ms. Morales stated that appellant

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was informed to always request help when a task involved moving or carrying heavy boxes or
similar material.
In a handwritten August 16, 2010 statement, appellant related that she needed surgery to
correct carpal tunnel syndrome induced by adverse work conditions. She requested information
on the status of her case in order to determine how to pay for the surgery.
By decision dated September 16, 2010, OWCP affirmed the May 7, 2010 denial decision
with modification. It accepted that appellant’s duties included lifting and moving boxes,
assembling materials for use in a training session, and removing and replacing old file folder
labels and that she was diagnosed with right carpal tunnel syndrome. OWCP denied her claim
finding insufficient medical evidence to establish that her right carpal tunnel syndrome was
causally related to factors of her employment.
Appellant submitted reconsideration requests which were received by OWCP on
February 28 and July 26, 2011. She provided another statement describing in detail her various
work duties at the employing establishment and noted her disagreements with her supervisors’
July 26, 2010 statement.
In November 4, 2010 and July 8, 2011 reports, Dr. Simon Lavi, an orthopedic surgeon,
reviewed appellant’s description of her job duties and the medical treatment she received for her
low back and bilateral wrist pain. He conducted an examination and diagnosed lumbar
discopathy and bilateral carpal tunnel syndrome. Dr. Lavi opined that appellant’s complaints
were related to the continuous activities performed while working at the employing
establishment.
By decisions dated May 26 and October 24, 2011, OWCP denied modification of
OWCP’s denial decisions.
Appellant again requested reconsideration, received by OWCP on October 29, 2014.
In a February 21, 2014 neurosurgical consultation report, Dr. Fredric L. Edelman, a
Board-certified neurological surgeon, noted appellant’s complaints of dizziness as a result of
harassment at work from 2007 to 2008. He reviewed various medical records and conducted an
examination. Dr. Edelman observed full range of motion of the neck and no tenderness. He also
reported that eye movements, facial sensation, and cranial nerves were normal. Dr. Edelman
diagnosed dizziness, anxiety and depression, and incidental left supraclinoid carotid dilation.
Appellant was also examined by Sheelah Muhammad, a physician assistant, who in a
March 28, 2014 report noted that appellant was under the care of a neurologist and psychiatrist.
Ms. Muhammad reviewed appellant’s history and conducted an examination. She observed no
scoliosis or deformities in appellant’s back and full range of motion of the extremities.
Ms. Muhammad diagnosed benign essential hypertension, migraine without aura, dizziness and
giddiness, and unspecified hyperlipidemia.
Appellant provided several diagnostic reports. In a May 23, 2014 x-ray of the right
ankle, Dr. Severiano Valenzuela, a Board-certified diagnostic radiologist, noted that no fracture
was seen and that alignment and joint space were well preserved. In an April 17, 2014 MRI scan
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of the brain, Dr. Bonnie Freitas, a Board-certified diagnostic radiologist, who specializes in
neuroradiology, observed stable fusiform dilation of the left supraclinoid segment with extension
of fusiform dilation into an aneurysm at the origin of the left posterior communicating artery.
In reports dated May 28 and June 11, 2014, Dr. Peter A. Lucero, a family practitioner,
examined appellant for complaints of moderate to severe pain to the right wrist and neck pain
radiating to the upper extremity. He related that she was diagnosed with carpal tunnel syndrome
seven years ago and now experienced depression and anxiety due to the constant pain.
Dr. Lucero stated that appellant had seen a lot of specialists for the past year for her multiple
problems, primarily headaches and dizziness. He noted diagnoses of hyperlipidemia, migraine
without aura, major depressive affective disorder, and cerebral aneurysm. Dr. Lucero further
reported that about one week ago appellant fell down and injured her right ankle. Upon
examination, he observed right wrist tenderness and weakness to grip. Tinel’s sign was positive
and straight leg raise testing was restricted due to pain. Dr. Lucero diagnosed bilateral carpal
tunnel syndrome, chronic neck and low back pain, and multilevel disc bulges. He recommended
that appellant follow up at the office in two months.
Appellant also received medical treatment from Dr. Jacob E. Tauber, a Board-certified
orthopedic surgeon. In reports dated September 24 and October 4, 2014, Dr. Tauber noted that
she began to work for the employing establishment in September 2007 as an enforcement
assistant and that he reviewed a detailed description of her employment activities. He related
that appellant’s job duties included assisting financial analysts, cleaning offices, typing,
operating a computer, and sending and mailing reports and that her physical requirements
consisted of prolonged sitting, repetitive movement of the upper extremities, lower extremities,
repetitive gripping, grasping, and fine finger manipulation. Dr. Tauber reviewed her medical
history and reported her complaints of constant headaches, constant neck pain radiating into her
upper back and shoulders, and constant lower back pain. He reported that appellant was
documented to have bilateral carpal tunnel syndrome, narrowing of the central canal and a disc
bulge, and disc protrusion at L4/5 and stenosis at L4/5.
Dr. Tauber opined that all of appellant’s pathology was industrial in that she carried out
extensive repetitive motion duties. He stated that she carried out strenuous duties such as
repetitive lifting, carrying, gripping, and grasping in the course of her employment. Dr. Tauber
reported that these strenuous duties not only resulted in appellant’s carpal tunnel syndrome, but
contributed to and likely caused pathology in her cervical and lumbar spine. He noted that
appellant had provided him with extensive records which documented the nature of her strenuous
and repetitive duties including having to reach up and pull folders and deal with as many as 700
legal folders. Dr. Tauber concluded that she had bilateral carpal tunnel syndrome and cervical
radiculopathy with cervical stenosis and a disc protrusion as a result of her repetitive work
duties.
By decision dated January 21, 2015, OWCP denied appellant’s request for
reconsideration because it was untimely filed and failed to establish clear evidence of error.

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LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
OWCP regulations provide that an application for reconsideration must be received by OWCP
within one year of the date of OWCP decision for which review is sought.3 The Board has found
that the imposition of the one-year time limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4 The one-year period
begins on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board.5
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nonetheless
undertake a limited review of the evidence previously of record to determine whether the new
evidence demonstrates clear evidence of error.6 In this regard, OWCP will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.7 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of OWCP such that it improperly denied merit review in the face of such evidence.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest on
its face that OWCP committed an error.9 Evidence that does not raise a substantial question
concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of
error.10 It is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion.11 The evidence submitted must not only be of sufficient probative value to
create a conflicting medical opinion or establish a clear procedural error, but must be of
sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of OWCP’s decision.12

3

Id. at § 10.607.

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

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

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Nelson T. Thompson, 43 ECAB 919 (1992).

8

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

9

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

10

Jimmy L. Day, 48 ECAB 652 (1997).

11

Id.

12

Annie L. Billingsley, 50 ECAB 210 (1998).

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ANALYSIS
The only decision before the Board is the January 21, 2015 nonmerit decision, in which
OWCP denied appellant’s request for reconsideration because her request was untimely filed and
failed to establish clear evidence of error. On October 24, 2011 OWCP denied modification of
the May 26, 2011 decision denying appellant’s occupational disease claim. In a letter received
by OWCP on October 29, 2014, appellant requested reconsideration. The Board finds that more
than one year elapsed from the most recent OWCP merit decision dated October 24, 2011, to
appellant’s request for reconsideration received on October 29, 2014.13 Thus, appellant’s request
for reconsideration is found to be untimely filed.
The Board also finds that appellant failed to establish clear evidence of error. Along with
her request for reconsideration appellant provided various medical reports not previously
reviewed. In reports dated September 24 and October 4, 2014, Dr. Tauber reviewed her history
and noted that her job duties included assisting financial analysts, cleaning offices, typing,
operating a computer, and sending and mailing reports and that her physical requirements
consisted of prolonged sitting, repetitive movement of the upper extremities, lower extremities,
repetitive gripping, grasping, and fine finger manipulation. He reported that appellant was
documented to have bilateral carpal tunnel syndrome, narrowing of the central canal and a disc
bulge, and disc protrusion at L4/5 and stenosis at L4/5. Dr. Tauber stated that she carried out
strenuous duties such as repetitive lifting, carrying, gripping, and grasping in the course of her
employment. He opined that these strenuous duties not only resulted in appellant’s carpal tunnel
syndrome, but contributed to and likely caused pathology in her cervical and lumbar spine.
Dr. Tauber concluded that she had bilateral carpal tunnel syndrome and cervical radiculopathy
with cervical stenosis and a disc protrusion as a result of her repetitive work duties.
The Board notes that while Dr. Tauber’s opinion is generally supportive of a causal
relationship between appellant’s bilateral carpal tunnel syndrome and lumbar conditions and her
employment duties as an enforcement assistant, it does not establish clear error on the part of
OWCP in denying her occupational disease claim. The report fails to show that OWCP
committed an error in denying the claim nor does it raise a substantial question as to the
correctness of OWCP’s decision.
The additional medical reports by Drs. Lucero, Freitas, Thompson, Edelman, and
Valenzuela are likewise insufficient to shift the weight of evidence in favor of appellant’s claim.
While the medical reports contain findings on examination and provide a medical diagnosis of
her condition, they do not raise a substantial question that OWCP erred by denying her
occupational disease claim. Therefore, the Board finds that appellant has not presented clear
evidence of error on the part of OWCP.
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued would
13

Pursuant to OWCP regulations, an application for reconsideration must be received within one year of the date
of OWCP’s decision for which review is sought. 20 C.F.R. § 10.607(a).

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have created a conflict in medical opinion requiring further development is not clear evidence of
error.14 In this case, the medical reports appellant submitted in support of her untimely request
for reconsideration are insufficient to shift the weight of evidence in favor of her claim or raise a
substantial question that OWCP erred by denying her occupational disease claim. None of the
evidence submitted manifests on its face that OWCP committed an error in denying her claim.
Therefore, the Board finds that appellant has not presented clear evidence of error on the part of
OWCP.
On appeal, appellant reviewed the evidence she had submitted and alleged that the
evidence was sufficient to establish her occupational disease claim. As previously explained,
however, the Board does not have jurisdiction over the merits of the occupational disease issue
of the claim. It can only make a determination regarding the January 21, 2015 nonmerit decision
of OWCP. Accordingly, the Board finds that OWCP properly declined to reopen appellant’s
claim because her request for reconsideration was untimely filed within the one-year time
limitation period set forth in 20 C.F.R. § 10.607 and did not show clear evidence of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits because it was untimely filed and failed to show clear evidence of
error.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5(a) (October 2011).

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ORDER
IT IS HEREBY ORDERED THAT the January 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 29, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

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

Docket No. 17-1160
Issued: December 19, 2018

Case Submitted on the Record

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

JURISDICTION
On May 6, 2017 appellant filed a timely appeal from an April 21, 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 this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 21, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the periods May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23, 2016
and continuing causally related to her accepted February 13, 2014 employment injury.
FACTUAL HISTORY
On February 15, 2014 appellant, then a 40-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on February 13, 2014 she sustained neck, back, lumbar
spine, left hip, and right knee injuries when she was involved in a motor vehicle accident while
delivering mail. She stopped work on February 13, 2014. OWCP initially accepted the claim for
a head contusion.
Appellant filed numerous forms requesting wage-loss compensation (CA-7 forms) for
periods of disability commencing February 13, 2014. The record indicates that appellant was paid
wage-loss compensation on the supplemental rolls for the period February 14 to May 16, 2014
In a May 16, 2014 report, Melissa Cooper, a nurse practitioner, related that appellant had
completed physical therapy and had been released to return to work, without restrictions. On
October 3, 2014 she related that appellant had work restrictions due to her February 13, 2014
employment injury.
In an August 26, 2014 memorandum to file, OWCP reported that appellant had been
employed less than one year and that the employing establishment terminated her employment
during her probationary period. It noted that she had been released to full-duty work in a medical
report dated May 16, 2014.
On March 30, 2015 appellant was examined by Dr. Kathleen Warner, a Board-certified
internist, who diagnosed lumbosacral, right knee, and left hip sprains and lumbar radiculopathy.
Dr. Warner noted that appellant had been involved in a motor vehicle accident while delivering
mail on February 13, 2014 and that the claim had only been accepted for the condition of head
contusion. She provided a medical history and details of the February 13, 2014 motor vehicle
accident. Dr. Warner noted that appellant had been disabled from work since February 13, 2014
and that the employing establishment terminated her employment on March 8, 2014 based on her
failure to report to work. She related that the mechanism of injury was consistent with the
diagnosed low back conditions.
In a March 30, 2015 duty status report (Form CA-17), Dr. Warner noted a February 13,
2014 injury and provided work restrictions
In reports dated June 1 and 16, 2015, Dr. Rhett Krone, an emergency medicine physician,
provided examination findings. He opined that appellant’s motor vehicle accident aggravated a
chronic underlying lumbosacral condition as she had no pain prior to the accident, but was
currently experiencing chronic lumbosacral pain. Dr. Krone observed that appellant’s symptoms
were suggestive of L4-5 radiculopathy.

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Dr. Krone, in a July 6, 2015 report, opined that appellant sustained injuries due to the
February 13, 2014 employment-related motor vehicle accident and he provided examination
findings.
By decisions dated July 29 and August 7, 2015, OWCP advised appellant that acceptance
of her claim had been expanded to include the additional conditions of sprain of right knee lateral
collateral ligament; and sprain of the hip and thigh; and sprain of the lumbar region of the back.
In an August 10, 2015 report, Dr. Krone provided examination findings and opined that
appellant might have a compressed spine fracture based on her continued pain complaints. On
September 14, 2015 he related that review of appellant’s lumbosacral magnetic resonance imaging
(MRI) scan revealed some mild L4-5 and L5-S1 disc bulging.
In a report dated June 8, 2016, Dr. Jeff Summers, Board-certified in pain medicine,
diagnosed lumbar spondylosis and hip pain, with resolved lumbar radiculopathy. He noted that
appellant was neurologically intact and that she had reported no symptoms in her lower extremities
following her last epidural steroid injection.
In another report dated June 8, 2016, Dr. Michael Winklemann, a Board-certified
physiatrist, related that appellant was seen for refill of her medications, and that she still had
complaints of pain in the distribution of the left greater trochanteric bursa.
On August 18, 2016 OWCP received appellant’s CA-7 form claiming wage-loss
compensation for the period May 17, 2014 to September 18, 2015.
By development letter dated August 26, 2016, OWCP informed appellant that additional
evidence was needed to establish her wage-loss claim for the period May 17, 2014 to
September 18, 2015. It afforded her 30 days to provide the requested information.
In a letter dated September 1, 2016, appellant noted her disagreement with her termination
from employment by the employing establishment as well as the denial of her claim for wage-loss
compensation by OWCP.
By decision dated October 19, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period May 17, 2014 to September 18, 2015. It found that none of the
medical evidence she submitted addressed disability for the period in question.
By separate decision also dated October 19, 2016, OWCP denied appellant’s claim for
wage-loss compensation for June 23, 2016 and continuing as none of the medical evidence she
submitted addressed disability for the period in question.
On October 24, 2016 OWCP received a report and office notes dated October 13, 2016
from Dr. Samuel J. Chmell, Board-certified in orthopedic surgery. Dr. Chmell detailed the history
of appellant’s accepted February 13, 2014 employment injury and her medical history. He
provided appellant’s physical examination findings. Dr. Chmell indicated that appellant’s medical
records had been reviewed, including MRI scans, and that the records were consistent with her
history. He diagnosed L4-5 and L5-S1 disc protrusions with facet arthropathy and radiculopathy,
right knee torn posterior medial horn meniscus with coccydynia and chondromalacia, and left hip
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greater trochanteric bursitis with sprain and aggravation of osteoarthritis, which he attributed to
the accepted February 13, 2014 employment injury. Dr. Chmell observed that appellant continued
to have pain in the lower back, left hip, and right knee and that physical examination findings
showed objective deficits. He recommended that appellant’s claim be expanded to include the
above-listed conditions.
Appellant, in a letter dated November 2, 2016, requested a review of the written record by
an OWCP hearing representative of the October 19, 2016 decisions denying her wage-loss
compensation claims for the periods May 17, 2014 to September 18, 2015 and June 23 and
continuing. She argued that the October 13, 2016 report by Dr. Chmell supported her disability
from work for the periods in question.
In a December 8, 2016 report, Dr. Chmell noted that appellant was evaluated on
October 13, 2016 for multiple injuries sustained as the result of a February 13, 2014 employmentrelated motor vehicle accident. He concluded that as a result of the employment injury, appellant
had sustained lumbar sprain, right torn medial meniscus, left hip traumatic arthritis, L4-5 and L5S1 disc herniations with radiculopathy, and coccydynia. Dr. Chmell opined that appellant required
further medical treatment for her work injuries and that she was currently totally disabled from
work due to her employment injury.
A March 22, 2017 report from Dr. Winklemann noted examination findings, medication,
and treatment provided.
By decision dated April 21, 2017, an OWCP hearing representative affirmed the
October 19, 2016 decision denying appellant’s claim for disability compensation for the period
May 17, 2014 to September 18, 20153 and June 23, 2016 and continuing. She found that appellant
failed to submit rationalized medical evidence attributing her disability for the periods in question
to her accepted February 13, 2014 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of disability
claimed, the employee has the burden of establishing that she was disabled for work as a result of
the accepted employment injury.6 Whether a particular injury causes an employee to become

3

The Board, in Docket No. 17-0875 (issued December 13, 2018) affirmed the denial of total disability for the
period March 30 to May 15, 2015. Findings made in prior Board decisions are res judicata absent any further review
by OWCP under section 8128 of FECA. See B.R., Docket No. 17-0294 (issued May 11, 2018).
4

Supra note 1.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

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disabled for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.7
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the periods May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23,
2016 and continuing.
In support of her claims for wage-loss compensation for the period May 17, 2014 to
March 29, 2015, and from May 16 to September 18, 2015, appellant submitted reports from a
nurse practitioner, Ms. Cooper, as well as Drs. Warner and Krone. For period the June 23, 2016
and continuing, she submitted reports from Drs. Chmell and Winkelmann.
Appellant was initially treated during the time periods in question by Ms. Cooper. The
Board has held that treatment notes signed by nurse practitioners have no probative value as these
providers are not considered physicians as defined under FECA.11 Therefore, the treatment notes
of record from Ms. Cooper are of no probative medical value in establishing appellant’s claim.12
The reports from Dr. Warner and reports from Dr. Krone do not directly address
appellant’s disability claim for the periods in question. Dr. Warner provided examination findings
and diagnoses including low back pain, lumbosacral, strain, right hip and knee sprains, and lumbar
radiculopathy while Dr. Krone provided examination findings. Both doctors reported that
appellant had been involved in a work-related motor vehicle accident on February 13, 2014.
However, none of their reports addressed specific dates of disability or provided medical rationale
explaining why appellant was totally disabled from work. An award of compensation may not be
7

See Edward H. Horton, 41 ECAB 301 (1989).

8
S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003);
20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

11
See David P. Sawchuk, 57 ECAB 316, 320n.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); A.L., Docket No. 16-1707 (issued
August 17, 2017) (nurse practitioners are not considered physicians as defined under FECA).
12

See N.W., Docket No. 17-1415 (issued November 7, 2017).

5

based on surmise, conjecture, speculation, or on the employee’s own belief of disability from
work.13 For this reason, the reports of Drs. Warner and Krone are insufficient to support
appellant’s claim for wage-loss compensation for the period May 17, 2014 to March 29, 2015 and
May 16 to September 18, 2015.
In support of her claims for wage-loss compensation for the period June 23, 2016 and
continuing, appellant submitted June 8, 2016 reports from Drs. Summers and Winkleman. These
reports from Dr. Summers and Dr. Winklemann do not directly address appellant’s disability claim
for the period in question. Dr. Summers diagnosed lumbar spondylolysis, resolved lumbar
radiculopathy, and hip pain and provided examination findings. Dr. Winklemann noted
appellant’s complaints of persistent left greater trochanteric bursa distribution pain and lower back
pain. Neither physician noted any specific dates of disability. Thus, these reports from
Drs. Summers and Winklemann are insufficient to support appellant’s claim for wage-loss
compensation for June 23, 2016 and continuing.14
Dr. Chmell, in a December 28, 2016 report, diagnosed lumbar sprain, right torn medial
meniscus, left hip traumatic arthritis, L4-5 and L5-S1 disc herniations with radiculopathy, and
coccydynia. However, his opinion was based on diagnoses not accepted by OWCP as part of this
claim. Dr. Chmell attributed the diagnosed conditions to the accepted February 13, 2014
employment injury, but no supporting rationale was provided as to how or why the additional
diagnoses were related to the accepted employment injury. A medical opinion should reflect a
correct history and offer a medically sound explanation by the physician of how the specific
employment incident physiologically caused or aggravated the diagnosed conditions.15 The Board
therefore finds that Dr. Chmell’s opinion is of limited probative value on the issue of whether
appellant’s disability on and after June 23, 2016 is causally related to her February 13, 2014 work
injury.16
It is appellant’s burden of proof to establish that she was disabled from work during the
claimed periods due to her accepted conditions. The record does not contain rationalized medical
opinion evidence, based on a complete factual and medical background, supporting causal
relationship between the accepted February 13, 2014 conditions and disability for the periods
May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23, 2016 and
continuing.17 The Board therefore finds that the evidence of record is insufficient to meet
appellant’s burden of proof.

13

See S.H., Docket No. 17-1447 (issued January 11, 2018).

14

Id.

15

See J.M., Docket No. 17-1002 (issued August 22, 2017).

16

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

17

C.S., Docket No. 08-2218 (issued August 7, 2009); see also R.M., Docket No. 16-0807 (issued August 26, 2016).

6

As appellant failed to submit such rationalized evidence, she has failed to establish her
claim for wage-loss compensation for the periods May 17, 2014 to March 29, 2015, from May 16
to September 18, 2015, and from June 23, 2016 and continuing.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the periods May 17, 2014 to March 29, 2015; May 16 to September 18, 2015; and June 23,
2016 and continuing causally related to her February 13, 2014 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 19, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COMMUNITY BASED OUTPATIENT CLINIC,
Grants Pass, OR, Employer
__________________________________________

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

Docket No. 12-558
Issued: October 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On January 13, 2012 appellant filed a timely appeal from a December 12, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
On appeal, appellant contended that she sustained an emotional condition causally related
to the duties of her federal employment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence after issuance of the December 12, 2011 decision. The
Board lacks jurisdiction to review evidence submitted for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On June 10, 2011 appellant, then a 58-year-old health technician, filed an occupational
disease claim alleging that, as a result of the duties of her federal employment, she sustained a
rash and hives covering her shins, thighs, hip, abdomen, back, arms and neck that caused
extreme itching and caused her occasional bleeding. She stated that her physician increased the
dosage of her medication with no relief. In response to the query as to the relationship of her
illness to her employment, appellant stated that she “contacted Union Rep. about some issues at
work, and the physical effects it was having on my body.”
By letter dated June 30, 2011, OWCP wrote a letter to appellant asking that she submit
further information in support of her claim.
Appellant submitted a letter dated June 21, 2011 alleging that on March 15, 2011 she was
counseled by her supervisor, Debra Minchon, for failure to maintain a regular work schedule.
According to her, the memorandum concerned her usage of annual leave, sick leave and leave
without pay. Appellant noted that her use of leave was due to two surgeries and other medical
issues that were verified by letters from the hospital. She stated that she asked a union
representative to be present at the meeting because the memorandum was worded in an
intimidating and threatening manner. Appellant also stated that she was prematurely accused of
not telephoning in when sick, but that she left messages on a recorder and they were not heard
until later in the day. She noted that she heard that Ms. Minchon was upset that someone else
had approved appellant taking her birthday off, and that Ms. Minchon stated that she would not
have approved it. Appellant also discussed some issues regarding lab work being drawn
incorrectly. A meeting was called with regard to the incident. Appellant expressed her concern
about this meeting and noted that she feared that she was going to lose her job.
Appellant alleged that the stress from these actions caused her physician to prescribe
medication for anxiety. She developed hives and a rash that caused extreme discomfort.
Appellant went to the Emergency Department in case she was having a reaction to the
medication. She stated that Ms. Minchon had informed appellant in the past two months of her
concern as to whether appellant was able to handle the telephone, make appointments and
document appropriately. Appellant noted that Ms. Minchon had informed her that her duties
were going to change in the near future. She noted that a bell system was set up to let her know
of new patients, that it was extremely irritating and disruptive, so she unplugged the bell and
would check the lobby for new arrivals. Finally, appellant stated that Ms. Minchon incorrectly
accused her of sending away a patient and of giving medical advice.
The employing establishment responded to appellant’s comments by noting that a
meeting had been scheduled to review appellant’s attendance and job performance and that she
was notified that union representation was always welcome. The employing establishment noted
that it discussed with appellant her attendance and reviewed her new work duties. Appellant was
told that her duties would be limited to answering telephones, scheduling appointments and
taking messages. The employing establishment noted that, after counseling, she did have fairly
good attendance and a great reduction in tardiness, that she was putting great effort into learning
and completing the task and that things went well until May 2011 when an issue developed with
the bell system. The employing establishment stated that the bell system was instituted to

2

announce that Veterans were waiting for lab work, but that appellant removed the bell because
she found the noise irritating and did not let clerical personnel know. As a result, labs started
building up and caused frustration. The employing establishment indicated that appellant was
not answering the telephone properly and that she did not always call when she was going to be
late. A clerical employee advised that she called appellant several times to wake her and told her
to come to work. The supervisor stated that she tried to help appellant with anxiety issues and
counsel her on how to handle her duties. She noted that she overheard appellant sharing medical
advice and stated that she advised appellant that this was not appropriate.3
Appellant also submitted other documents, including a copy of her resume, position
description and some medical records.
By decision dated December 12, 2011, OWCP denied appellant’s claim as she did not
establish that an event or injury occurred.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, a claimant must submit: (1) medical evidence establishing that she has an emotional or
stress-related disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
stress-related condition.4 If a claimant does implicate a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor.5 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,7 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.8 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.9 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
3

The Board notes that, although the statement is unsigned, it appears that it was primarily prepared by appellant’s
supervisor Ms. Minchon.
4

G.S., Docket No. 09-764 (issued December 18, 2009); see also Leslie C. Moore, 52 ECAB 132 (2000).

5

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

6

Id.

7

28 ECAB 125 (1976)

8

5 U.S.C. §§ 8101-8193.

9

See Robert W. Johns, 51 ECAB 136 (1999).

3

emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.10 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.12 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.13 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.14
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of various
employment incidents and conditions. OWCP denied her claim on the grounds that she did not
establish any compensable employment factors. The Board must, thus, initially review whether
these alleged incidents and conditions of employment are covered employment factors under the
terms of OWCP. The Board finds that appellant has not attributed her emotional condition to
regular or specially assigned duties of her position as a health technician. Therefore, she has not
alleged a compensable factor under Cutler.15
Certain allegations made by appellant concerned personnel or administrative matters.
Specifically, she alleged that she was reprimanded with regard to taking too much annual leave,
sick leave and leave without pay and also about her tardiness. Appellant contended that
Ms. Minchon was upset when someone else approved a day off for her birthday. She also
alleged that she was accused of not following proper procedures for calling in with regard to
absence and tardiness. Other allegations with regard to administrative matters include that
10

Cutler, supra note 7.

11

Id.

12

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

13

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
14

Roger Williams, 52 ECAB 468 (2001).

15

Supra note 7.

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appellant was told that she sent a patient away and that she improperly gave medical advice. In
response to her allegations, the employing establishment discussed issues concerning her
attendance and tardiness and stated that regular attendance was very important in order to best
serve the Veterans. The Board has held that an administrative or personnel matter will be
considered to be an employment factor only where the evidence discloses error on the part of the
employing establishment.16 In determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.
Appellant has failed to submit evidence that she was treated unfairly in this manner.
Furthermore, she also stated that she was stressed with regard to meetings that were called with
regard to some laboratory errors and with regard to her attendance issues. Appellant alleged that
these meetings caused her to fear losing her job. The handling of disciplinary actions and
evaluations are administrative functions of the employer and not duties of the employee.17 There
is no evidence that appellant was unfairly treated with regard to these meetings. Furthermore,
her allegations that the memorandum was worded in a threatening and intimidating matter and
thus she did not want to attend the meeting alone are not supported by any substantive evidence,
such as by submission of the memorandum. Absent evidence of such error or abuse, any
reaction must be considered self-generated not employment generated.18
The Board notes that the assignment of work is an administrative function of a supervisor
and, absent error or abuse, frustration at not being assigned what the employing establishment
may consider meaningful work is not a compensable factor of employment but frustration from
not being permitted the particular work desired.19 The Board has held that the assignment of
work or the matter in which a supervisor exercises his or her discretion are administrative
matters that generally fall outside the scope of FECA.20 Appellant’s concerns include the
assignment of work clerical work and the use of a bell to alert appellant that she was needed to
perform lab work. However, the Board has recognized that a supervisor or manager must be
allowed to make decisions or perform duties that the employees will, at times, dislike. Mere
disagreement or dislike or a supervisor’s management decision will not be compensable absent
evidence of error or abuse.21
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.22

16

Cynthia R. Harrill, 55 ECAB 522 (2004).

17

See Janet I Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 55, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1267 (1988).
18

H.B., Docket No. 11-2058 (issued May 8, 2012).

19

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

20

See Robert Knoke, 51 ECAB 319 (2000); Frank B. Gwozdz, 50 ECAB 434 (1999).

21

T.G., 58 ECAB 189 (2006).

22

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 12, 2011 is affirmed.
Issued: October 4, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FCI MEMPHIS,
Memphis, TN, Employer
__________________________________________

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Appearances:
Daniel DeCiccio, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 21-0301
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On December 24, 2020 appellant, through counsel, filed a timely appeal from a
December 3, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of the claim to include additional conditions of left knee primary osteoarthritis and a right medial
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

meniscus tear causally related to the accepted August 23, 2019 employment injury; and
(2) whether OWCP abused its discretion by denying appellant’s requests for authorization of a left
knee injection and right knee surgery.
FACTUAL HISTORY
On August 23, 2019 appellant, then a 49-year-old corrections officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained injuries to his knees as a result of
a partial floor cave-in while in the performance of duty. OWCP accepted the claim for bilateral
knee contusions.
In a report dated September 5, 2019, Dr. Robert H. Miller, a Board-certified orthopedic
surgeon, diagnosed bilateral knee contusions. He noted that on August 23, 2019 appellant was
walking on an elevated floor when his right leg fell through the floor. Appellant landed on his
kneecaps. Since that time, he had significant pain in both knees, left worse than right. Appellant
told Dr. Miller that he had previous intermittent pain and swelling in the left knee requiring him
to use a cane and that he had been given a cane several years prior “for preexisting knee arthritis.”
A magnetic resonance imaging (MRI) scan of the left knee obtained on September 26, 2019
demonstrated a small free edge tear in the body of the lateral meniscus and mild and moderate
patellofemoral compartment osteoarthritis.
In a follow-up report dated January 30, 2020, Dr. Miller noted that an MRI scan of the left
knee demonstrated a small free edge tear in the body of the lateral meniscus and low -grade
chondral loss in the lateral compartment. He advised that appellant should treat his arthritis with
continued therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain
approval for a hyaluronic acid injection.
An MRI scan of appellant’s right knee obtained on February 13, 2020 demonstrated a
horizontal tear of the posterior horn and body of the medial meniscus and mild tricompartmental
osteoarthritis. It was also noted that the medial collateral ligament was thickened proximally
consistent with a remote injury.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
On March 9, 2020 appellant requested authorization for right knee surgery.
In a development letter dated March 11, 2020, OWCP advised appellant that, at that time,
the proposed right knee surgery could not be approved. It found that the request for surgery did
not match his approved condition of right knee contusion. OWCP requested that appellant submit
a narrative report from his physician explaining how the new diagnosis of right knee meniscus tear
was causally related to the accepted traumatic injury. It afforded him 30 days to submit the
requested evidence.
On April 2, 2020 appellant requested authorization for a left knee injection.
2

In a development letter dated April 8, 2020, OWCP advised appellant that, at that time the
proposed left knee injections could not be approved. It found that the request for a left knee
injection did not match his approved condition of left knee contusion. OWCP requested that
appellant submit a narrative report from his physician explaining how the new diagnosis of left
knee osteoarthritis was causally related to the accepted traumatic injury. It afforded him 30 days
to submit the requested evidence. No response was received within the time allotted.
By decision dated May 18, 2020, OWCP denied appellant’s request to expand the
acceptance of his claim to include left knee primary osteoarthritis as causally related to the
accepted August 23, 2019 employment injury and denied his request for authorization for a left
knee injection.
By separate decision also dated May 18, 2020, OWCP denied appellant’s request to expand
the acceptance of his claim to include a right knee medial meniscus tear as causally related to the
accepted employment injury and denied his request for authorization for right knee surgery.
On June 2, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On October 5, 2020, counsel submitted the results of a May 12, 2015 MRI scan, which
demonstrated minimal lateral compartment chondromalacia and minimal chondromalacia of the
patella and minimal signal in the posterior horn of the medial meniscus, likely reflecting
intrasubstance degeneration. He also enclosed a note dated September 30, 2020 from Dr. Miller
in which he described the results of the May 12, 2015 MRI scan.
A hearing was held on October 8, 2020. The hearing representative afforded appellant 30
days to submit additional medical evidence.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently accepted for bilateral knee contusions. He opined that the acceptance of the claim should
be expanded to include an aggravation of left knee primary osteoarthritis and a left la teral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary to avoid surgery.
By decision dated December 3, 2020, the hearing representative affirmed the May 18, 2020
decisions.

3

LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 4 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background. 5 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.6
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation. 7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. 8 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.9 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.10

3

A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
4

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

5

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

6

Id.

7

5 U.S.C. § 8103.

8

M.C., Docket No. 17-1615 (issued August 23, 2018).

9

Id.

10

Id.

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis and a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury.
In his September 5, 2019 report, Dr. Miller diagnosed bilateral knee contusions, and noted
that appellant had related he had been given a cane some years prior for preexisting left knee
arthritis. This report merely diagnosed the accepted bilateral knee contusions, but did not offer
Dr. Miller’s diagnosis of any other bilateral knee conditions. The Board has held that a medical
report lacking a firm diagnosis and a rationalized medical opinion that the medical condition is
causally related to the employment incident is of no probative value. 11 Therefore, Dr. Miller’s
report is insufficient to establish appellant’s request for expansion of the claim.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently approved for bilateral knee contusions. He opined that the acceptance of the case should
be expanded to include an aggravation of left knee primary osteoarthritis and a left lateral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary and could avoid surgery. The Board finds that Dr. Miller’s
November 5, 2020 report is insufficient to establish appellant’s request for expansion of the claim.
Dr. Miller’s explanation that appellant’s left knee osteoarthritis and right knee meniscal tear were
“possibly” secondary to the August 23, 2019 incident is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal are of diminished probative value. 12 While
Dr. Miller provided a possible explanation as to how the incident of August 23, 2019 caused or
aggravated appellant’s left knee primary osteoarthritis and a right medial meniscus tear, his
opinion was couched in speculative terms, and did not fully address appellant’s history and
preexisting bilateral knee conditions. In any case where a preexisting condition involving the same
part of the body is present and the issue of causal relationship, therefore, involves aggravation,
acceleration or precipitation, the physician must provide a rationalized medical opinion that
differentiates between the effects of the work-related injury or disease and the preexisting

11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.5(c)(3); D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued
August 23, 2019).

5

condition.13 In addition, while Dr. Miller noted that medical literature supported a finding that
appellant’s diagnosed conditions could have been caused by the type of trauma he experienced,
the Board has held that reliance on medical literature has little probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in
the articles to the specific factual situation at issue in the case. 14 Therefore, Dr. Miller’s
November 5, 2020 report is insufficient to meet appellant’s burden of proof. 15
OWCP also received MRI scan reports. The Board, however, has held that diagnostic tests,
standing alone, lack probative value as they do not provide a physician’s opinion on whether there
is a causal relationship between appellant’s accepted employment incident/exposure and a
diagnosed condition.16 This evidence is, therefore, insufficient to establish expansion of his claim.
As the evidence of record is insufficient to establish causal relationship between his
additional diagnosed medical conditions and the accepted employment injury, appellant has not
met his burden of proof to expand the acceptance of his claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 17 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation. 18 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of proof to establish that the expenditure is incurred for treatment of
the effects of an employment-related injury or condition. 19
Section 10.310(a) of OWCP’s implementing regulations provide that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.20
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
14

S.J., Docket No. 20-0896 (issued January 11, 2021); R.G., Docket No. 18-0917 (issued March 9, 2020); T.S.,
Docket No. 18-1518 (issued April 17, 2019); K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne,
55 ECAB 535 (2004).
15

See C.B., Docket No. 20-0464 (issued July 21, 2020).

16

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
17

Supra note 1 at § 8103(a).

18

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50
ECAB 288 (1999).
19

M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

20

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

6

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.21 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. 22
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for authorization for a left knee injection and right knee surgery.
On March 9, 2020 appellant requested authorization for right knee surgery. On April 2,
2020 appellant requested authorization for a left knee injection.
In a January 30, 2020 report, Dr. Miller noted that an MRI scan of the left knee
demonstrated a small free edge tear in the body of the lateral meniscus and low-grade chondral
loss in the lateral compartment. He advised that appellant should treat his arthritis with continued
therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain approval for a
hyaluronic acid injection.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
In a narrative report dated November 5, 2020, Dr. Miller opined that the left knee
injections were necessary to avoid surgery.
As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness. 24 In the instant case, appellant did not submit evidence to support that the
requested left knee injection and right knee surgery were medically necessary to treat his accepted
conditions. The Board thus finds that OWCP did not abuse its discretion by denying her request
21

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
22

D.S., Docket No. 18-0353 (issued May 18, 2020).

23

Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).

24

Supra note 22; see also A.W., Docket No. 14-0708 (issued January 2, 2015).

7

for authorization for physical therapy. 25 Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis a nd a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury. The Board
further finds that OWCP did not abuse its discretion by denying appellant’s requests for
authorization of a left knee injection and right knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

25

D.C., Docket No. 18-0080 (issued May 22, 2018); B.J., Docket No. 17-1825 (issued February 23, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES CLEVELAND MEDICAL
CENTER, Brecksville, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1021
Issued: September 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 6, 2007 appellant timely appealed the July 13, 2006 merit decision of the
Office of Workers’ Compensation Programs, which terminated compensation and medical
benefits. She also timely appealed the Office’s December 29, 2006 nonmerit decision which
found that she had abandoned her request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the claim.1
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation and
medical benefits effective July 13, 2006; and (2) whether appellant abandoned her request for an
oral hearing.

1

The record on appeal contains evidence received after the Office issued its December 29, 2006 decision. The
Board’s review is limited to the evidence of record at the time the Office rendered its final decision. 20 C.F.R.
§ 501.2 (2007).

FACTUAL HISTORY
On January 8, 1974 appellant, then a 27-year-old nursing assistant, injured her back
during an altercation with a patient. The Office accepted her claim for low back contusion,
aggravation of discogenic pathology at L4-5, acute lumbosacral sprain with radiculitis and
psychogenic overlay. Appellant last worked in 1976. On November 20, 1992 she underwent a
decompression laminectomy and removal of herniated disc at L4-5, which the Office authorized.
Following her 1992 surgery, appellant had a recurrent herniated disc at L4-5. However, because
of her weight and cardiac condition she was not considered a suitable candidate for further
surgery.
In October 1995, appellant’s then treating physician, Dr. Barry J. Greenberg,
considered her to be totally and permanently disabled.2 Dr. Dennis A. Glazer, an impartial
medical examiner, expressed a similar opinion in April 2000.3 While appellant continued to
experience problems with her back, she was not receiving any specific psychiatric treatment for
her accepted condition of psychogenic overlay.4
Dr. Steven A. Cremer, a Board-certified physiatrist, examined appellant on July 24, 2003.
He diagnosed chronic lumbar pain and noted that there was not much he could do for appellant
because of her multiple medical problems. A recent x-ray of the lumbar spine showed
significant degenerative disease, inadequate fusion with motion present on flexion and extension
and foraminal encroachment by spurs from the facet joints at multiple levels in the lumbar spine.
Dr. Cremer recommended medication, a transcutaneous electrical nerve stimulator (TENS) unit
and a follow-up evaluation in one month.
In a January 14, 2004 report, Dr. Cremer noted that appellant had not returned for a
follow-up examination and, therefore, he could not say whether she benefited from the
recommended TENS treatment. In response to a series of questions posed by the Office,
Dr. Cremer indicated that there was no evidence of any low back contusion on appellant’s
previous examination. He also indicated that clinical findings of lower extremity weakness
supported that appellant had an ongoing lumbosacral sprain with radiculitis. Dr. Cremer stated
that there was a temporary aggravation of the L4-5 disc, but he was unable to determine whether
the aggravation had ceased. With respect to appellant’s 1992 surgery, he noted that appellant’s
radiculitis and limited range of motion were evidence of ongoing residuals from the prior
surgery.
Dr. Priti Nair, a Board-certified physiatrist and Office referral physician, examined
appellant on April 13, 2004. He found that appellant’s low back contusion had completely
resolved. Dr. Nair also stated that there were no objective findings on physical examination to
2

Dr. Greenberg is a Board-certified orthopedic surgeon and he performed the November 20, 1992 surgical
procedure.
3

Dr. Glazer is a Board-certified orthopedic surgeon. He found that appellant was severely limited in the activities
she could perform. According to Dr. Glazer, appellant could work one hour or less sitting and pushing up to five
pounds. The Office selected Dr. Glazer to resolve a conflict of medical opinion between Dr. Greenberg and
Dr. Sheldon Kaffen, a Board-certified orthopedic surgeon and Office referral physician.
4

Dr. Michael A. Kachmer, a Board-certified psychiatrist and Office referral physician, evaluated appellant on
September 17, 1999 and found that she was not suffering from any significant psychiatric disorder at that time.

2

support ongoing lumbosacral strain with radiculitis. Regarding the accepted aggravation of
discogenic pathology at L4-5, he noted that there were insufficient physical findings to suggest
continued aggravation. However, Dr. Nair noted that appellant’s reported symptoms of low back
pain and an April 13, 1993 lumbar magnetic resonance imaging (MRI) scan were consistent with
discogenic pathology at L4-5. According to him, the physical examination findings did not
support an active radiculopathy. Dr. Nair also noted that the pain distribution appellant reported
in her left lower extremity was more consistent with the degenerative pathology noted on the
MRI scan at L5-S1. He concluded that the condition of L4-5 discogenic pathology was static
without any substantial alteration in appellant’s physical condition and the aggravation caused by
work activity had returned to baseline level. While appellant could not perform her duties as a
nursing assistant, Dr. Nair indicated that she could potentially work in a light-duty or sedentary
job classification. He also noted that there was no need for further medical treatment.
Dr. Nair did not complete a work capacity evaluation (Form OWCP-5c) as previously
requested and it was unclear from his opinion whether appellant’s inability to resume her former
nursing assistant duties was due to her January 8, 1974 employment injury. The Office
requested clarification on several occasions, but was unable to obtain a supplemental report from
Dr. Nair.
Approximately two years lapsed before the Office referred appellant for another second
opinion examination. Dr. Kaffen, who previously examined appellant at the Office’s behest in
1999, reexamined her on April 5, 2006. In a report dated May 3, 2006, he found that the
accepted conditions of low back contusion, acute lumbosacral sprain and lumbar radiculitis,
secondary to herniated disc at L4-5 had all resolved. Dr. Kaffen also noted that there was “no
indication that [appellant] sustained an aggravation of her preexisting condition.” While he
noted that appellant had undergone surgery in 1992, he did not otherwise comment on long-term
effects of the procedure. Dr. Kaffen also stated that appellant had nonwork-related conditions
consisting of lumbar facet arthrosis, degenerative disc disease at L5-S1 and recurrent left-sided
herniated disc at L4-5. According to him, appellant’s current back problems were not causally
related to her 1974 employment injury, but secondary to the nonallowed conditions of recurrent
herniated disc and degenerative disc disease at L5-S1 as well as facet arthrosis. Dr. Kaffen
recommended that future treatment consist of nonnarcotic analgesic medication and restriction of
activities. He did not complete a work capacity evaluation form or otherwise address appellant’s
ability to resume work as a nursing assistant.
On May 31, 2006 the Office advised appellant of its intention to terminate her
compensation and medical benefits based on the opinions of Dr. Nair and Dr. Kaffen. Appellant
was afforded 30 days to respond to the proposed termination of benefits. She did not respond
and on July 13, 2006 the Office issued a final decision terminating future compensation and
medical benefits effective immediately.
On August 10, 2006 appellant requested an oral hearing. On November 14, 2006 the
Office notified appellant that a teleconference/hearing was scheduled for December 20, 2006.
The hearing did not proceed as scheduled and on December 29, 2006, the Branch of Hearings &
Review issued a formal decision finding that appellant abandoned her hearing request.

3

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.7 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.8
ANALYSIS -- ISSUE 1
The Office terminated compensation and medical benefits on the basis that the weight of
the medical evidence established that the work-related conditions of “low back contusion, acute
lumbosacral sprain with lumbar radiculitis, aggravation of discogenic pathology at L4-5 and
psychogenic overlay” had resolved. The Office relied upon Dr. Kachmer’s September 17, 1999
psychiatric evaluation as a basis for concluding that the accepted condition of psychogenic
overlay had resolved. With respect to appellant’s orthopedic condition, the Office relied on
Dr. Nair’s April 13, 2004 report and Dr. Kaffen’s May 3, 2006 report as a basis for terminating
compensation and medical benefits.
While the record supports that appellant does not have any continuing disability or
residuals associated with her accepted condition of psychogenic overlay, the Board finds that the
Office did not meet its burden to terminate compensation and medical benefits relevant to
appellant’s accepted orthopedic condition. The Office previously questioned Dr. Nair’s
April 13, 2004 report and requested clarification from him. After repeated requests, the Office
was unable to obtain a supplemental report and, therefore, it referred appellant to Dr. Kaffen for
evaluation. The Office’s subsequent resurrection of Dr. Nair’s report is untenable. Dr. Nair’s
opinion as to whether appellant has any continuing employment-related disability remains
unclear. In this instance, the Office offered no reasonable explanation for relying on a medical
opinion it had previously found to be unreliable; and was by the time of the Office’s decision
several years stale. The Board also notes that Dr. Nair based his April 13, 2004 opinion in larger
part on what was at the time an 11-year-old lumbar MRI scan. Appellant obtained a more recent
x-ray of her lumbosacral spine in July 2003 that Dr. Nair apparently was not privy to.
With respect to Dr. Kaffen’s recent opinion, the Board notes that he had previously
examined appellant for the Office, but neither Dr. Kaffen nor the Office made mention of his
prior report dated July 10, 1999. His current report, dated May 3, 2006, is deficient for at least
three reasons. First, Dr. Kaffen did not comment on appellant’s ability to resume her former
5

Curtis Hall, 45 ECAB 316 (1994).

6

Jason C. Armstrong, 40 ECAB 907 (1989).

7

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

8

Calvin S. Mays, 39 ECAB 993 (1988).

4

duties as a nursing assistant. Second, he did not accept that appellant sustained an aggravation of
a preexisting condition. The Office accepted the claim for “aggravation of discogenic pathology
at L4-5.” Dr. Kaffen’s three-page report offers no explanation for his disagreement with the
Office’s acceptance of the claim for aggravation of discogenic pathology. From both a legal and
medical standpoint, this claim has proceeded for over three decades on the premise that the
January 8, 1974 employment incident aggravated a preexisting degenerative condition in
appellant’s lumbar spine.
Absent a clear rationale, Dr. Kaffen’s contrary opinion is
unpersuasive. His May 3, 2006 report is also deficient in that he did not identify appellant’s
November 20, 1992 L4-5 laminectomy and herniated disc removal as employment related. This
is particularly significant because Dr. Kaffen noted that appellant’s July 4, 2003 x-ray revealed a
laminectomy defect at L4-5. He also noted, without explanation, that appellant’s recurrent disc
herniation at L4-5 was not employment related. If the 1992 Office-approved surgery failed to
resolve appellant’s condition, then it is unclear how her current L4-5 disc herniation is not
associated with her accepted employment injury. When Dr. Cremer examined appellant on
July 24, 2003 he noted x-ray evidence of an “inadequate fusion….” In his January 14, 2004
report, Dr. Cremer noted that there were ongoing residuals from appellant’s 1992 surgery.
The evidence relied upon by the Office to terminate compensation and medical benefits
does not address the issue of whether appellant has any disability or residuals associated with her
November 20, 1992 Office-approved surgery. In fact, the decision’s conclusion does not include
the November 20, 1992 surgery among the list of accepted employment-related conditions.
Because the effects of appellant’s 1992 surgery have not been adequately addressed, the Board
finds that the Office improperly terminated appellant’s compensation and medical benefits with
respect to her accepted orthopedic condition. This aspect of the July 13, 2006 decision is
accordingly reversed. However, the Office properly found that appellant’s psychiatric condition
had resolved. Therefore, she is no longer entitled to medical benefits for treatment of the
accepted condition of psychogenic overlay.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision on her claim is entitled, upon timely request, to a
hearing before a representative of the Office.9 Unless otherwise directed in writing by the
claimant, the Office hearing representative will mail a notice of the time and place of the oral
hearing to the claimant and any representative at least 30 days before the scheduled date.10 The
Office has the burden of proving that it mailed the claimant a notice of the date and time of the
scheduled hearing.11

9

5 U.S.C. § 8124(b) (2000); 20 C.F.R. § 10.616(a) (2007).

10

20 C.F.R. § 10.617(b). The employing establishment will be provided similar notice at least 30 days in advance
of the scheduled hearing. Id.
11

Nelson R. Hubbard, 54 ECAB 156, 157 (2002). In the absence of evidence to the contrary, it is presumed that a
notice mailed in the ordinary course of business was received in due course by the intended recipient. Kenneth E.
Harris, 54 ECAB 502, 505 (2003). This presumption is commonly referred to as the “mailbox rule.” Id. It arises
when the record reflects that the notice was properly addressed and duly mailed. Id.

5

Assuming proper notice has been provided by the Office, a hearing is considered to have
been abandoned when each of the following three conditions has been met: (1) the claimant has
not requested a postponement; (2) the claimant has failed to appear at a scheduled hearing; and
(3) the claimant has failed to provide any notification for such failure within 10 days of the
scheduled date of the hearing.12 If all three conditions have been met, the Branch of Hearings &
Review will issue a formal decision finding that the claimant has abandoned her request for a
hearing, and the case record will be returned to the appropriate district Office.13
ANALYSIS -- ISSUE 2
On August 10, 2006 appellant timely requested an oral hearing in connection with the
Office’s July 13, 2006 decision terminating compensation and medical benefits. She chose the
option of having a teleconference if the Office deemed it suitable. In a November 14, 2006
notice to appellant at her address of record, the Office advised her that the hearing she requested
was scheduled for 10:00 a.m., December 20, 2006.14 The record does not indicate that appellant
participated in the scheduled teleconference/hearing. On December 29, 2006 the Office issued a
decision finding that appellant had abandoned her request for a hearing.
Appellant does not claim that she did not receive the November 14, 2006 hearing notice.
On appeal, she explained that she was unable to participate in the scheduled hearing because she
received a call on December 20, 2006 from her son’s physician informing her that he would
likely die that day. According to appellant, her son passed away at approximately 4:00 p.m. on
December 20, 2006.15
When the Office issued its decision on December 29, 2006, the record contained no
explanation for appellant’s failure to participate in the December 20, 2006 scheduled hearing.
Appellant acknowledged on appeal that she had not previously advised the Office that her son
had passed away the day of the scheduled hearing. A finding of abandonment is appropriate
where the claimant has not requested a postponement, has failed to appear at the scheduled
hearing, and has failed to provide any notification for such failure within 10 days of the
scheduled date of the hearing.16 All three conditions are present in the instant case, and
therefore, the Office properly found that appellant abandoned her request for a hearing. The
unfortunate circumstances of her son’s untimely demise would have undoubtedly justified

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
13

Id. In cases involving prerecoupment hearings, the Branch of Hearings & Review will also issue a final
decision on the overpayment, based on the available evidence, before returning the case to the district Office. Id.
14

The November 14, 2006 notice also included a toll free telephone number and a pass code, along with
instructions on how to connect to the teleconference/hearing.
15

Appellant provided the Board documentation relevant to her son’s date, time and cause of death. As previously
noted, the Board may not consider evidence that was not a part of the record at the time the Office issued its final
decision. See supra note 1.
16

See supra note 12.

6

postponement of appellant’s hearing.17 However, she did not provide this information and the
proper documentation in a timely fashion. Because the record at the time the Office issued its
decision contained no explanation for appellant’s failure to participate in the December 20, 2006
scheduled hearing, the Office’s December 29, 2006 decision was proper.
CONCLUSION
The Office properly terminated appellant’s medical benefits with respect to her accepted
condition of psychogenic overlay. However, the Office did not meet its burden to terminate
wage-loss compensation and medical benefits with respect to appellant’s accepted orthopedic
condition and approved surgery. Additionally, the Branch of Hearings & Review properly found
that appellant abandoned her request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2006 decision of the Office of
Workers’ Compensation Programs is reversed in part and affirmed in part in accordance with this
decision. The December 29, 2006 decision of the Branch of Hearings & Review is affirmed.
Issued: September 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

17

See 20 C.F.R. § 10.622(c).

7