United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 12-166
Issued: June 14, 2012

Case Submitted on the Record

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

JURISDICTION
On November 2, 2011 appellant filed a timely appeal from a September 28, 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 this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,244.54, and, if so, (2) whether OWCP properly denied waiver of the recovery of
the overpayment; and (3) whether OWCP properly set the rate of recovery of $250.00 from
continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 20, 2003 appellant, then a 33-year-old mail processor, filed a claim for
occupational disease, alleging that he developed a bilateral knee condition due to his federal
duties.
His claim was accepted for bilateral chondromalacia, bilateral internal knee
derangement, bilateral medial meniscus dislocation and bilateral patella dislocation. Appellant
underwent approved surgeries on August 24, 2004, May 2 and July 18, 2006, following which he
stopped work and returned to work intermittently.
As of January 17, 2010, appellant stopped work and received wage-loss compensation on
the periodic rolls each 28 days based on temporary total disability.
On March 22, 2011 OWCP notified appellant that it had made a preliminary finding that
he was overpaid compensation in the amount of $1,244.54 for the period January 17, 2010
through March 12, 2011. It explained that it had underdeducted health benefits premiums from
appellant’s compensation based on an incorrect health benefits code of 455, rather than the
correct code of 105. The calculations provided by OWCP explained how the overpayment was
determined. Appellant was found “without fault” in the creation of the overpayment because he
did not know, or reasonably should have known, that OWCP had incorrectly deducted health
benefits premiums.
Appellant requested a prerecoupment hearing before the Branch of Hearings and Review
on the issues of fault and waiver of the overpayment. A hearing was scheduled for July 12, 2011
to be held by telephone. Appellant failed to appear for the hearing and OWCP conducted a
review of the written record.
On April 8, 2011 OWCP received an Overpayment Recovery Questionnaire completed
by appellant who noted that he was unaware when OWCP changed his insurance deductions.
Appellant only received a statement once per month, and it did not explain the insurance
deductions in detail. When he called OWCP to inquire the reason for the fluctuation in his
compensation, it was unable to provide an answer. Appellant requested a waiver of the
overpayment, as it occurred due to an error on the part of OWCP, and through no fault of his
own. He provided a list of his income, assets and expenses. Appellant listed $4.00 in a checking
account in assets, and he listed a total monthly income of $3,600.00. He listed three dependents,
and reported his total monthly expenses to be $3,100.00.
In a September 28, 2011 decision, OWCP finalized its finding that appellant received an
overpayment of compensation in the amount of $1,244.54 for the period January 17, 2010
through March 12, 2011 because it had underdeducted health benefits premiums from his
compensation. It found him to be without fault, but that he did not qualify for a waiver. The
decision found that appellant was capable of repaying $250.00 per month toward the debt, which
would be deducted from ongoing FECA compensation and applied toward the outstanding
payment.

2

LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.2
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits (FEHB) program. The regulations of the Office of
Personnel Management (OPM), which administers the FEHB program, provides guidelines for
registration, enrollment and continuation of enrollment for federal employees. In this
connection, 5 C.F.R. § 890.502(a)(1) provides that an employee or annuitant is responsible for
payment of the employee or annuitant share of the cost of enrollment for every pay period during
which the enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding required for each
pay period that health benefit withholdings or direct premium payments are not made but during
which the enrollment continues.3
In addition 5 C.F.R. § 890.502(c) provides that an agency that withholds less than or
none of the proper health benefits contributions from an individual’s pay, annuity or
compensation must submit an amount equal to the sum of the uncollected deductions and any
applicable agency contributions required under section 8906 of Title 5 United States Code, to
OPM for deposit in the Employees’ Health Benefits Fund.4
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.5 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.6 The Board has recognized that, when an underwithholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.7
While the employee is receiving compensation under FECA, deductions for insurance are
withheld from the employee’s compensation.8 At separation from the employing establishment,
2

5 U.S.C. § 8102(a).

3

Id. at § 890.502(a)(1).

4

Id. at § 890.502(c).

5

Id. at § 890.502(a)(1).

6

Id.

7

See James Lloyd Otte, 48 ECAB 334 (1997); Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39
ECAB 1377 (1988); 5 C.F.R. § 890.502.
8

5 U.S.C. § 8707(b)(1).

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the FEGLI insurance will either terminate or be continued under compensationer status. If the
compensationer chooses to continue basic and optional life insurance coverage, the schedule of
deductions made will be used to withhold premiums from his or her compensation payments.9
When an underwithholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.10
ANALYSIS -- ISSUE 1
The record establishes an overpayment of compensation. Appellant elected health
insurance coverage under Enrollment Code 105; however, deductions for his insurance
premiums were calculated according to Enrollment Code 455. Once OWCP learned that his
deduction calculations had been incorrectly made, it advised him that he had been paid wage-loss
benefits an incorrect rate and that an overpayment was created. The overpayment worksheet
establishes that proper deduction for appellant’s share of the health insurance premiums under
Enrollment Code 105 was $5,608.36, whereas the deducted amount under Enrollment Code 455
was $4,363.82, which created an overpayment in the amount of $1,244.54. In the absence of a
specific waiver or cancellation of coverage, of which there is none of record, he is responsible
for payment of his share of the cost of enrollment. Appellant has not submitted any evidence to
establish that he cancelled the insurance or that the calculated amounts were incorrect.
Accordingly, the Board finds that OWCP properly determined an overpayment of compensation
in the amount of $1,244.54 from January 17, 2010 through March 12, 2011.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.11 An individual should always
be found without fault where the overpayment resulted from OWCP error in the underdeduction
of health benefits or life insurance premiums.12
If OWCP finds that the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of
FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.13
Recovery will defeat the purpose of FECA if both: (a) the individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
9

Id. at § 8706(b).

10

Id. at § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, supra note 7.

11

20 C.F.R. § 10.433(a).

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.5(b) (June 2009).
13

20 C.F.R. § 10.434. See 5 U.S.C. § 8129(b).

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under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first
$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from
recoupment as a necessary emergency resource. If an individual has current income or assets in
excess of the allowable amount, a reasonable repayment schedule can be established over a
reasonable, specified period of time. It is the individual’s burden to submit evidence to show
that recovery of the overpayment would cause the degree of financial hardship sufficient to
justify waiver.14 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.15
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.16 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes her position for the worse.17
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver and no further request for waiver shall be considered until the requested information is
furnished.18
ANALYSIS -- ISSUE 2
The fact that appellant was found without fault in creating the overpayment does not
mean that OWCP cannot collect the overpayment. He is still required to repay the debt unless
recovery of the overpayment would defeat the purpose of FECA, or recovery of the overpayment
would be against equity and good conscience.
In determining that he was not entitled to a waiver of the recovery of the overpayment,
OWCP reviewed appellant’s income, expenses and assets. Based on the financial documentation
supplied by appellant, OWCP found that he had a household income of $3,600.00 a month and
14

Supra note 12 at Chapter 6.200.6(a) (June 2009). See Miguel A. Muniz, 54 ECAB 217 (2002); 20 C.F.R.
§§ 10.436, 10.437.
15

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

16

20 C.F.R. § 10.437(a).

17

Id. at § 10.437(b).

18

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

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monthly expenses of $3,100.00 a month, or a difference of $500.00. Its procedures provide that
an individual is deemed to need substantially all of his or her current income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00.19 The Board finds that, as appellant’s monthly income of $3,600.00 exceeded
his documented reasonable monthly expenses of $3,100.00 by $500.00, he is not entitled to
waiver as he does not need substantially all of his income to meet current ordinary and necessary
expenses.
Appellant did not allege that he relinquished a valuable right or changed his position for
the worse in reliance on the excess compensation he received from January 17, 2010 through
March 12, 2011. Pursuant to its regulations, OWCP properly found that recovery of the
overpayment would not be against equity or good conscience.
As the evidence in this case fails to support that, recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the overpayment of
$1,244.54.
Appellant contends on appeal that the overpayment was not due to any fault of his own.
For the reasons set forth, the Board finds that OWCP properly determined that waiver of the
recovery of the overpayment was not warranted.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to same. If no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant facts, so as to minimize any hardship.20
ANALYSIS -- ISSUE 3
OWCP found that appellant’s monthly income exceeded expenses by $500.00. It
determined that he could repay the debt at the rate of $250.00 a month without hardship. The
Board finds that OWCP gave due regard to the relevant factors noted above and did not abuse its
discretion in setting a rate of recovery, that allowed for repayment within five months. The
Board will affirm OWCP’s decision on the rate of recovery.21

19

Supra note 12 at Chapter 6.200.6(a)(3) (June 2009).

20

20 C.F.R. § 10.441(a).

21

See B.S., Docket No. 11-487 (issued November 22, 2011) (OWCP did not abuse its discretion in determining a
repayment rate of $25.00 a month when appellant’s monthly income exceeded expenses by $185.09).

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CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $1,244.54 because health benefit premiums were not properly deducted from
his compensation payments for the period January 17, 2010 through March 12, 2011. The Board
further finds that OWCP properly denied waiver of the overpayments and properly set the rate of
recovery of $250.00 from continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2011 is affirmed.
Issued: June 14, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CINCINNATI VA MEDICAL CENTER,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 21-1245
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On November 3, 2020 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 4, 2018 she injured her right arm when she grabbed a
patient who attempted to leave the premises while in the performance of duty. She explained that
the patient became agitated, started to swing his cane at the staff, and attempted to leave the
hospital. Appellant asserted that she grabbed him at the same time the police attempted to subdue
him by placing him on the bed which jerked her arm to the left and pulled her down with the patient
onto the bed. She noted that she initially experienced immediate pain to her wrist and arm, which
worsened with certain activities and continued days later. Appellant stopped work on
December 7, 2018.
In a November 18, 2020 development letter, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
further evidence was submitted.
By decision dated December 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the accepted December 4, 2018 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
In a December 4, 2018 report, Dr. Jason T. Hildebrant, an internist, related that appellant
was involved in a work-related altercation with a patient who was trying to leave the hospital. He
summarized her account that the patient became agitated and aggressive, and that she tried to
redirect him back to his bed while a coworker relieved him of his cane. Dr. Hildebrant noted that
appellant was unsure whether she injured her arm from being hit by the cane or by the patient.
Appellant reported having aching pain in her right forearm. Dr. Hildebrant conducted a physical
examination and diagnosed right arm pain.
A December 15, 2018 x-ray of the right wrist revealed no acute osseous injury. A right
hand x-ray of even date demonstrated no fracture or dislocation. A right forearm x-ray of even
date revealed mild degenerative changes.
In an August 31, 2020 medical report, Dr. Glen A. McClung, a Board-certified orthopedic
surgeon, noted that appellant presented with right shoulder pain after she fell on her right shoulder.
He conducted a physical examination and diagnosed a possible right shoulder partial rotator cuff
tear.
In a November 18, 2020 medical report, Dr. McClung reported that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He noted that she reinjured her right shoulder “in April.” Dr. McClung conducted a

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physical examination and diagnosed probable right shoulder distal clavicle osteolysis, right
shoulder impingement, and a possible partial rotator cuff tear.
A November 30, 2020 magnetic resonance imaging (MRI) scan of the right shoulder
revealed moderate-to-severe supraspinatus and mild infraspinatus tendinosis without tear as well
as mild acromioclavicular (AC) joint osteoarthritis with acromial morphology.
In a December 2, 2020 medical report, Dr. McClung conducted a physical examination and
diagnosed right shoulder impingement, AC arthrosis, and rotator cuff tendinitis.
In a December 10, 2020 form report, Dr. McClung noted that appellant’s condition began
in April 2020 and diagnosed right shoulder pain, rotator cuff tendonitis, impingement, and AC
arthrosis. He advised that she was scheduled for right shoulder surgery on December 28, 2020.
In a December 28, 2020 operative report, Dr. McClung noted that appellant underwent
surgery, including right shoulder arthroscopies with subacrominal decompression, distal clavicle
excision, and extensive debridement. He diagnosed right shoulder impingement, AC arthrosis,
bursitis, and synovitis.
In a letter dated January 12, 2021, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on April 19, 2021.
By decision dated June 21, 2021, the hearing representative affirmed, as modified, the
December 21, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted December 4, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emp loyee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specif ic employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
In his November 18 2020 medical report, Dr. McClung noted that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He also indicated that she reinjured her right shoulder “in April.” Dr. McClung diagnosed
right shoulder distal clavicle osteolysis, right shoulder impingement, and a possible partial rotator
cuff tear. While his report is generally supportive of causal relationship, he did not offer any
explanation or medical rationale as to how appellant could have developed the diagnosed right
shoulder conditions due to the accepted December 4, 2018 employment incident. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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medical rationale explaining how a given medical condition is related to the accepted employment
incident.10 For these reasons, this report is insufficient to establish the claim.
In his reports dated December 2, 10, and 28, 2020, Dr. McClung provided multiple
diagnoses related to appellant’s right shoulder and arm. However, he did not provide an opinion
on causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value. 11 Thus, these reports are
also insufficient to establish appellant’s claim.
In an August 31, 2020 medical report, Dr. McClung noted that appellant fell on her right
shoulder and diagnosed a possible right shoulder partial rotator cuff tear. However, he failed to
provide a firm diagnosis in connection with the accepted December 4, 2018 employment incident.
The Board has long held that a medical report lacking a firm diagnosis and a rationalized medical
opinion regarding causal relationship is of no probative value.12 Thus, this report is insufficient to
establish appellant’s claim.
Dr. Hildebrant, in his December 4, 2018 medical report, indicated that appellant was
involved in a work-related altercation with a patient who was trying to leave the hospital while
threatening staff members with his cane. He diagnosed right arm pain. However, the Board has
held that pain is a description of a symptom, not a clear diagnosis of a medical condition. 13 A
medical report lacking a firm diagnosis is of no probative value.14 This report is, therefore,
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident.
The remaining medical evidence includes radiographic studies. The Board has held,
however, that diagnostic studies, standing alone, lack probative value and are, therefore,
insufficient to establish the claim. 15

10
B.H., Docket No. 20-077 (issued October 21, 2020); see S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J.,
Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a
report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the
relation between work factors and a diagnosed condition/disability).
11
L.T., Docket No. 20-0582 (issued November 15, 2021); A.C., Docket No. 21-0087 (issued November 9, 2021);
D.B., Docket No. 19-0514 (issued January 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

W.G., Docket No. 20-0439 (issued July 13, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.R., Docket No. 18-1408 (issued March 1, 2019); D.A.,
Docket No. 18-0783 (issued November 8, 2018).
14

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

15

J.E., Docket No. 21-0956 (issued November 23, 2021); J.K., Docket No. 20-0591 (issued August 12, 2020); J.P.,
Docket No. 19-0129 (issued December 13, 2019).

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As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right arm condition is causally related to the accepted December 4, 2018 employment incident, the
Board finds that appellant has not met her burden of proof.
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 a medical
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Renton, WA, Employer
__________________________________________

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

Docket No. 14-1228
Issued: October 15, 2014

Case Submitted on the Record

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

JURISDICTION
On May 6, 2014 appellant, through counsel, filed a timely appeal from a March 11, 2014
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.
ISSUE
The issue is whether appellant established continuing disability or residuals relating to his
accepted conditions after October 6, 2010.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated March 2, 2012, the
Board affirmed OWCP’s decision dated April 25, 2011. The Board determined that OWCP met
1

5 U.S.C. §§ 8101-8193.

its burden of proof to justify termination of compensation benefits, effective October 6, 2010,
based on the reports of Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and an
OWCP referral physician.2 By decision dated April 3, 2013, the Board affirmed OWCP’s
September 26, 2012 decision finding that appellant failed to establish continuing employmentrelated condition or disability after October 6, 2010.3 The facts and circumstances of the case up
to that point are set forth in the Board’s prior decision and incorporated herein by reference.
On December 11, 2013 appellant, through his attorney, requested reconsideration. He
asserted that OWCP erred in determining that he had not presented sufficient evidence to support
the claim for compensation. Appellant asserted he continued to have work-related residuals after
October 6, 2010. He submitted a May 22, 2012 report from Dr. Jeffrey L. Brown, an osteopath,
which had previously been submitted by appellant and considered by OWCP in its decision dated
September 26, 2012.
In a decision dated March 11, 2014, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
Once OWCP meets its burden of proof to terminate appellant’s compensation benefits,
the burden shifted to him to establish that he had continuing disability causally related to his
accepted employment injury.4 To establish causal relationship between the claimed disability
and the employment injury, appellant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.5
ANALYSIS
The Board finds that appellant has not established that he has any continuing residuals of
his work-related neck sprain, on or after October 6, 2010.
After the termination of benefits on October 6, 2010 and on reconsideration appellant
resubmitted the May 22, 2012 report from Dr. Brown, which had previously been considered by
2

Docket No. 11-1545 (issued March 2, 2012). Appellant’s claim had been accepted for a neck sprain.
Dr. Swartz’s June 22, 2010 report noted an unremarkable examination of appellant’s lumbar and cervical spine. He
found that appellant had no residuals of the March 24, 2009 injury. A July 20, 2010 electromyogram (EMG)
revealed mild chronic bilateral C5-6 radiculopathy with mild right ulnar nerve entrapment at the wrist. In a
July 28, 2010 supplemental report, Dr. Swartz advised that appellant sustained a cervical strain as a result of the
motor vehicle accident on March 4, 2009 and had preexisting degenerative disc disease in the cervical spine. He
noted that the EMG found evidence of chronic mild bilateral L5-S1 radiculopathy which was not active or evident
clinically. Dr. Swartz noted that appellant sustained a self-limiting soft tissue strain of the cervical spine related to
his work injury which resolved and his current symptoms were attributable to his preexisting degenerative disease.
Appellant had reached maximum medical improvement on June 22, 2010, was working his regular job full time as
an aircraft mechanic and required no further medical treatment referable to his work injury.
3

Docket No. 13-116 (issued April 3, 2013).

4

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

5

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

2

OWCP in its decision dated September 26, 2012 and the Board in its decision dated
April 3, 2013. The Board previously found that this report was insufficient to meet his burden of
proof.6 Appellant did not adequately explain how resubmission of this report on reconsideration
served to meet his burden of proof.
The medical evidence submitted by appellant after the termination of benefits does not
include a rationalized opinion sufficiently explaining the causal relationship between his current
condition and his accepted work-related conditions. Consequently, appellant has not established
that he had any employment-related condition or disability after October 6, 2010.
As the Board has previously reviewed this evidence the issue of its weight is res judicata
and not subject to further consideration by the Board.
On appeal, counsel asserts that Dr. Brown provided support for causal relationship. As
explained, however, the weight of that medical evidence has already been reviewed by the
Board.7
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 further finds that appellant failed to establish that he had any continuing
disability after October 6, 2010.

6

See supra note 3. Clinton E. Anthony, 49 ECAB 476 (1998).

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Worker’s
Compensation Programs dated March 11, 2014 is affirmed.
Issued: October 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, SEATTLE BULK
MAIL CENTER, Seattle, WA, Employer
__________________________________________

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Appearances:
Rainer Brown, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1084
Issued: January 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from a February 18, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying reconsideration of a
November 25, 2008 merit decision denying his wage-loss claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and nonmerits of this case.
ISSUES
The issue are: (1) whether appellant met his burden of proof to establish he was disabled
from work July 17 through September 24, 1999; and (2) whether the Office properly refused to
reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 26, 2006 appellant, a 49-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging he sustained carpal tunnel syndrome which he attributed to his sack

keying duties since July 15, 1999.1 The Office accepted appellant’s claim for left-hand cubital
tunnel syndrome that resolved no later than October 23, 1999.
In an August 3, 1999 report, Dr. Arthur DePalma, Board-certified in family medicine,
diagnosed appellant with ulnar entrapment.
In reports dated August 13, September 20 and October 18, 1999, Dr. Curtiss B. Chin,
Board-certified in family medicine, diagnosed appellant with left ulnar neuropathy and carpal
tunnel syndrome. He reported in his August 13, 1999 progress note that appellant was “given off
work August 13 to August 15, 1999.” In his September 20, 1999 note, Dr. Chin reported that
appellant felt he was too tired to work because he could not sleep at night secondary to left elbow
pain.
In a report dated August 16, 1999, Dr. Robert W. Leyen, a Board-certified orthopedic
surgeon, reported findings on examination, reviewed appellant’s medical history and diagnosed
appellant with left elbow cubital tunnel syndrome.
Appellant submitted an October 23, 1999 report in which Dr. Bruce Wheeler, a Boardcertified orthopedic surgeon, reported findings on examination, reviewed appellant’s medical
history and diagnosed him with left shoulder impingement, left small finger flexor muscle
tendinitis as well as a history of cubital tunnel. Dr. Wheeler noted that he made no objective
findings concerning appellant’s cubital tunnel syndrome.
Appellant filed a claim for compensation (Form CA-7) for wages lost July 17 through
September 24, 1999. Time analysis revealed that he claimed 210.75 hours leave without pay that
he attributed to an “injury on the job.”
By decision dated November 25, 2008, the Office denied appellant’s wage-loss claim
because the evidence of record failed to demonstrate that he was disabled from work on the dates
claimed.
Appellant disagreed and on December 4, 2008 requested reconsideration.
Appellant submitted physical capacity evaluation reports in which different physicians
diagnosed him with cubital tunnel syndrome. He also resubmitted progress notes from Dr. Chin.
By decision dated February 18, 2009, the Office denied appellant’s reconsideration
request.

1

This is the second time this case has been before the Board. See G.G. (Docket No. 07-501, issued
August 4, 2007). In that decision, the Board found appellant had not established that he sustained an injury in the
performance of duty causally related to his federal employment. However, the Board remanded the case for further
development, finding that the Office failed to review all the relevant evidence prior to denying his reconsideration
request.

2

LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act,2 the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.3 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become 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.5 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.6
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.7
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for left cubital tunnel syndrome. Appellant alleged
that he was disabled from work July 17 through September 24, 1999. His burden is to
demonstrate, through the production of rationalized medical evidence, that his disability during
the period claimed was causally related to his accepted employment injury. The Board finds the
evidence of record insufficient to satisfy appellant’s burden of proof.8
The evidence of record consists of reports signed by Drs. Chin, DePalma, Leyen, Wagner
and Wheeler. But these reports lack a rationalized medical opinion explaining if and how
appellant’s alleged disability during the period claimed was causally related to appellant’s
accepted employment injury. Dr. Chin noted that appellant was “given off work” August 13
to 15, 1999 and that he felt too tired to work in September 1999; however, he did not explain
why appellant’s accepted condition would have disabled him from work during this time period.
Dr. Wheeler diagnosed appellant with a history of cubital tunnel syndrome but offered no
2

5 U.S.C. §§ 8101-8193.

3

See S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001).

4

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

6

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Manuel Garcia, 37 ECAB 767 (1986).

7

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Appellant submitted a report signed by a physician assistant. Because health care providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not considered physicians under the Act, their
reports and opinions do not constitute competent medical evidence. (5 U.S.C. § 8101(2); see also G.G., 58 ECAB
___ (Docket No. 06-1564, issued February 27, 2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams,
40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983). Thus this report is of no probative or evidentiary value.

3

medical explanation as to why this diagnosis would have disabled him during the time period in
question. Therefore, these reports are of diminished probative value and are insufficient to
satisfy appellant’s burden of proof.9
An award of compensation may not be based on surmise, conjecture or speculation.10
Because the evidence of record lacks a rationalized medical opinion explaining appellant’s
disability during the dates in question, appellant has not satisfied his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,11 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.12 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.13 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.14
ANALYSIS -- ISSUE 2
Appellant’s reconsideration request did not demonstrate that the Office erroneously
applied or interpreted a specific point of law. His reconsideration request did not advance a
relevant legal argument not previously considered by the Office. Therefore, appellant was not
entitled to reconsideration under the first two enumerated statutory grounds.
Concerning the third enumerated ground, appellant has not submitted relevant and
pertinent new evidence not previously considered by the Office. The relevant issue is whether
his disability during the period alleged was caused by his accepted employment injury. While
appellant submitted duplicate reports from Dr. Chin, the Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case
record15 and the submission of evidence or argument which does not address the particular issue
9

See Sandra D. Pruitt, 57 ECAB 126 (2005).

10

See also Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving
declarations do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
11

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.607(a).

14

Id. at § 10.608(b).

15

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Eugene F. Butler, 36 ECAB 393,
398 (1984).

4

involved does not constitute a basis for reopening a case.16 Appellant submitted additional
reports, all of which lack a rationalized medical opinion explaining if and how appellant’s
disability was causally related to his accepted employment injury.
Because appellant has not satisfied any of the above-mentioned criteria, the Board finds
that the Office properly refused to reopen his case for further review of the merits of his claim.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
disabled from work July 19 through September 24, 1999. The Board also finds that the Office
properly refused to reopen appellant’s case for further consideration of the merits pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2009 and November 25, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 4, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

16

D.K., supra note 6; Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., 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. 10-1621
Issued: March 10, 2011

Case Submitted on the Record

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

JURISDICTION
On June 2, 2010 appellant filed a timely appeal from the March 19, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his traumatic injury claim and the
April 21, 2010 nonmerit decision denying his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a cervical injury while in the performance
of duty on January 20, 2010; and (2) whether the Office properly refused to reopen his case for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 27, 2010 appellant, a 43-year-old mail handler, filed a traumatic injury claim
alleging that he sustained a herniated cervical disc on January 20, 2010 while separating trays of
mail off the floor of a pallet.
Appellant submitted January 22, 2010 discharge instructions from Coliseum Northside
Emergency Department. Dr. Gary Godlewski, a treating physician, diagnosed tendinitis.

In a January 20, 2010 work excuse, Dr. David A. De La Sierra, a Board-certified family
practitioner, diagnosed cervical radiculopathy. He stated that appellant should be excused from
work from January 20 through 23, 2010.
On a prescription slip dated January 27, 2010, Dr. Christina L. Mayville, a Boardcertified neurologist, stated that appellant had an acute herniation of a cervical disc (C6-7) and
would remain out of work indefinitely.
On February 2, 2010 the employing establishment controverted appellant’s claim on the
grounds that the medical evidence failed to establish causal relationship.
In a letter dated February 11, 2010, the Office informed appellant that the evidence
submitted was insufficient to establish his claim. It allowed him 30 days to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnosed condition.
Appellant submitted a February 12, 2010 surgical report from Dr. Arthur Gregorian, a
treating physician, who performed an anterior cervical discectomy with fusion at the C6-7 levels.
He diagnosed cervical radiculopathy with loss of herniated surgical discs at cervical discs at
C6-7 level.
In a March 9, 2010 report, Dr. Gregorian stated that appellant had been “previously
disabled due to his old right shoulder injury, and it [was] certainly possible that repeated lifting,
pushing and bending at work was the source of his herniated disc and cervical radiculopathy.”
Dr. Gregorian released appellant to work with restrictions as of March 30, 2010.
Appellant submitted a January 20, 2010 report from Dr. De La Sierra containing a
diagnosis of cervical radiculopathy. Dr. De La Sierra noted that appellant had left-sided neck
pain radiating to his left shoulder which “started after a work out.”
By decision dated March 19, 2010, the Office denied appellant’s claim. It accepted that
the January 20, 2010 incident of moving occurred as alleged. The Office found that the medical
evidence was insufficient to establish that appellant had sustained a cervical injury on
January 20, 2010.
On April 1, 2010 appellant requested reconsideration.
By decision dated April 21, 2010, the Office denied appellant’s request for
reconsideration on the grounds that he did not present any evidence or argument warranting
further merit review.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.1 The phrase “sustained while in the performance of duty” is regarded as
1

5 U.S.C. § 8102(a).

2

the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.8

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
3

Robert Broome, 55 ECAB 339 (2004).

4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
5

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

6

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

7

Id.

8

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

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the January 20, 2010 workplace incident occurred as alleged.
The issue is whether appellant submitted sufficient medical evidence to establish that the
employment incident caused an injury to his cervical spine. The medical evidence presented
does not contain a rationalized medical opinion establishing that the work-related incident caused
or aggravated any particular medical condition or disability. Therefore, appellant has failed to
satisfy his burden of proof.
Appellant submitted January 22, 2010 discharge instructions from Dr. Godlewski, who
diagnosed tendinitis; a January 20, 2010 work excuse from Dr. De La Sierra, who diagnosed
cervical radiculopathy; and a January 27, 2010 disability slip from Dr. Mayville, who diagnosed
acute herniation of a cervical disc at C6-7. The physicians did not provide a full and factual or
medical background or findings from examination. Moreover, they did not provide any opinion
as to the cause of appellant’s diagnosed cervical condition. The Board has long held that
medical evidence which does not offer an opinion regarding the cause of an employee’s
condition is of limited probative value.9
Dr. Gregorian’s reports are insufficient to establish appellant’s claim. A February 12,
2010 surgical report noted an anterior cervical discectomy with fusion at the C6-7 levels.
Dr. Gregorian diagnosed cervical radiculopathy with loss of herniated discs at the C6-7 level.
He did not address the cause of appellant’s diagnosed condition or address the January 20, 2010
incident at work. On March 9, 2010 Dr. Gregorian stated that appellant had been “previously
disabled due to his old right shoulder injury, and it [was] certainly possible that repeated lifting,
pushing and bending at work was the source of his herniated disc and cervical radiculopathy.”
The physician’s opinion is of limited probative value in that he did not provide a complete
factual or medical background of appellant’s cervical condition or set forth findings from
examination. Dr. Gregorian did not explain how the incident of January 20, 2010 was competent
to have caused appellant’s herniated cervical disc or radiculopathy. His opinion is speculative in
addressing the possibility that repetitive work activity over a period of time might have caused
the diagnosed conditions. This undermines appellant’s claim of traumatic injury.
In a January 20, 2010 report, Dr. De La Sierra diagnosed cervical radiculopathy and
stated that appellant had left-sided neck pain radiating to his left shoulder which “started after a
work out.” The report did not provide any history of the January 20, 2010 incident, examination
findings or an opinion as to the cause of the diagnosed condition. Dr. De La Sierra’s report
suggests that appellant’s neck condition was caused or exacerbated by a work out, rather than by
the established January 20, 2010 work events. Based on these deficiencies, the physician’s
opinion is of limited probative value.
Appellant expressed his belief that his cervical condition resulted from the January 20,
2010 employment incident. The Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.10 Neither the fact that the condition became apparent during a period of
9

Michael E. Smith, 50 ECAB 313 (1999).

10

See Joe T. Williams, 44 ECAB 518, 521 (1993).

4

employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.11 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Appellant’s belief that his condition was caused by the accepted incident is not
determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment, and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
sufficient medical evidence to establish his claim. As there is no probative, rationalized medical
evidence addressing how appellant’s claimed cervical condition was caused or aggravated by the
January 20, 2010 incident, he did not establish that he sustained an injury, as alleged.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.13 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.14 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.15 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.16
12

ANALYSIS -- ISSUE 2
Appellant’s April 1, 2010 request for reconsideration did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law. He did not advance any
relevant legal argument not previously considered by the Office. Consequently, he is not entitled
to a review of the merits of his claim based on the first and second above-noted requirements
under section 10.606(b)(2).

11

Id.

12

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.607(a).

15

Id. at § 10.608(b).

16

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

5

Appellant did not submit any evidence or argument in support of his request for
reconsideration. Therefore, he is not entitled to a review of the merits of his claim based on the
third requirement under section 10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his April 1, 2010 request for reconsideration.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on January 20, 2010. The Board further
finds that the Office properly refused to reopen appellant’s case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 21 and March 19, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 10, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington, WA, Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-808
Issued: September 27, 2011

Case Submitted on the Record

ORDER GRANTING REQUEST FOR ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

By application received on February 11, 2011 appellant filed for review of a
November 16, 2010 decision of the Office of Workers’ Compensation Programs (OWCP). The
appeal was docketed as No. 11-808. On appeal appellant requested an oral argument on his
claim. He stated that he wished to discuss four issues with respect to the termination of
compensation based on refusal of suitable work. Appellant indicated there were both procedural
and substantive issues raised in the November 16, 2010 OWCP decision.
The Board has duly considered the matter and finds that appellant’s timely request for
oral argument should be granted. Appellant has requested an oral argument to address issues
regarding the termination of compensation effective November 15, 2010 pursuant to 5 U.S.C.
§ 8106(c)(2). According to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of
the Board. The Board, in its discretion, grants oral argument.

IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
No. 11-808 be granted.
Issued: September 27, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


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

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

Docket No. 12-971
Issued: November 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 28, 2012 appellant filed a timely appeal from an October 11, 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 and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to
disability compensation for intermittent periods commencing February 9, 2011.
FACTUAL HISTORY
On May 26, 2009 appellant, then a 36-year-old mail handler, injured his left knee lifting
trays of letter mail weighing 5 to 70 pounds. OWCP accepted a left knee and leg sprain and paid
benefits. Appellant stopped work on the date of injury, later returned to modified and full duty,
1

5 U.S.C. §§ 8101-8193.

and then had a period of work-related disability from November 4, 2009 until he was released to
full duty on January 5, 2010.
Appellant filed claims for compensation for temporary total disability for February 9 to
March 3 and April 21 to May 2, 2011. He submitted a March 3, 2011 note from Dr. Robert J.
Harrison, a Board-certified internist specializing in occupational medicine, who advised that
appellant could not work due to knee pain. Dr. Harrison diagnosed chondromalacia patella. In a
March 28, 2011 report, he stated that appellant was under his care for a previously accepted left
knee and leg sprain. Dr. Harrison noted appellant’s complaints of chronic moderate left knee
pain and stated that a March 11, 2011 magnetic resonance imaging (MRI) scan of the left knee
was unchanged since the prior MRI scan. Appellant was given brief periods of time off but
returned to full duty on March 7, 2011. Dr. Harrison diagnosed chondromalacia patella and
advised that appellant had a recurrence of his previously accepted injury. Although appellant
returned to regular employment, his condition was prone to recurrence and would be precipitated
by prolonged walking and bending. In a May 2, 2011 note, Dr. Harrison advised that appellant
was unable to work due to knee pain.
In a March 29, 2011 report, Dr. Lesley Anderson, a Board-certified orthopedic surgeon,
reported that appellant was seen on consultation from Dr. Harrison. She noted a history of injury
and course of medical treatment. Dr. Anderson diagnosed chondromalacia patellae, diabetes
mellitus and patellar tendinitis. She opined that appellant’s tendinosis, chondromalacia and a
medial collateral ligament (MCL) sprain were sustained as a result of the physical and repetitive
nature of his job and was consistent with the reported history, examination and MRI scan
findings. Appellant’s subjective complaints were out of proportion to the objective findings as
there was no tenderness, effusion or any significant crepitation. Dr. Anderson deferred work
restrictions to Dr. Harrison.
OWCP informed appellant in a September 6, 2011 letter that further evidence was needed
to establish his claim. It gave him 30 days to submit a medical report from a qualified physician
explaining how his work-related condition rendered him unable to perform his federal
employment commencing February 9, 2011 or the employing establishment’s inability to provide
work within his physical limitations. No additional information was received from appellant.
By decision dated October 11, 2011, OWCP denied appellant’s compensation claim,
finding that the medical evidence did not sufficiently establish total disability for the periods
February 9 to March 3 and April 21 to May 2, 2011 or that the employing establishment could
not provide light duty within his restrictions.2

2

OWCP also noted that appellant had a new traumatic injury on November 9, 2009, which would be considered
an intervening cause in his recurrence claim. The record reflects that, in November 18 and December 1, 2010
decisions, OWCP denied claims for wage-loss compensation for periods February to October 2010 finding that
evidence from appellant’s physician attributed appellant’s condition to a new injury occurring on November 19,
2009, which should be pursued through a new traumatic injury claim.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative and substantial medical opinion evidence.3 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.4
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.5 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.6
ANALYSIS
Appellant filed a claim for wage-loss compensation alleging that he was disabled for
work from February 9 to March 3, 2011 and April 21 to May 2, 2011. The Board finds that he
has not submitted sufficient medical evidence to establish his disability due to his accepted
conditions of left knee and leg sprain.
Dr. Harrison who noted that appellant had returned to full duty March 7, 2011 and had an
increase in knee pain. He diagnosed chondromalacia patella and stated in his March 3 and
May 2, 2011 notes that appellant was unable to work due to knee pain. While Dr. Harrison
recommended that appellant be off work, he did not adequately address how appellant was
disabled due to the accepted conditions. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.7 The reports are of diminished probative value.
In a March 29, 2011 report, Dr. Anderson opined that appellant’s tendinosis,
chondromalacia and MCL sprain were sustained as a result of the physical and repetitive nature
of his job. She, however, deferred work restrictions to Dr. Harrison and failed to address

3

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

4

Dean E. Pierce, 40 ECAB 1249 (1989).

5

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

6

Jefferson, supra note 3.

7

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

3

whether appellant was disabled to the accepted conditions. Dr. Anderson’s report is insufficient
to establish appellant’s claim.
There is no other probative medial evidence of record which addresses whether appellant
was disabled on the dates claimed and explains how this disability is attributable to the May 26,
2009 work injury. Appellant has failed to submit sufficient rationalized medical opinion
evidence to establish that he was unable to work on the days claimed due to his accepted
conditions. He had failed to establish that he was disabled and, thus, is not entitled to wage-loss
compensation from February 9, 2011 onward.
Appellant may submit new evidence of 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 established entitlement to wage-loss benefits for
periods of disability from February 9, 2011 onward.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 11, 2011 is affirmed.
Issued: November 7, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0622
Issued: March 26, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On January 28, 2019 appellant filed a timely appeal from August 23 and December 12,
2018 decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 19-0622.
On August 7, 2007 appellant, then a 38-year-old alternative dispute resolution manager,
filed a traumatic injury claim (Form CA-1) alleging that when she was attending a work-related
conference in San Francisco, CA on August 2, 2007, she was struck by a taxicab in a crosswalk
while in the performance of duty. OWCP accepted her claim for bilateral lower leg/knee contusion
and sprain and patellofemoral and medial compartment mild arthritis, left worse than right.1
On July 30, 2014 appellant filed a claim for a schedule award (Form CA-7). In a
December 18, 2014 report Dr. Steven H. Bernstein, a Board-certified orthopedic surgeon, utilized
the fourth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) and found 7 percent permanent impairment of the whole body or 16
percent of the left lower extremity. In an April 14, 2015 report, OWCP’s district medical adviser
1
On April 18, 2008 and December 10, 2010 appellant underwent OWCP-approved left knee arthroscopic
procedures to address her degenerative arthritis.

(DMA) reviewed the relevant evidence, including Dr. Bernstein’s report, and using his
examination findings applied the sixth edition of the A.M.A., Guides2 and found 8 percent left
lower extremity permanent impairment based on a diagnosis of left knee primary joint arthritis
with full-thickness articular cartilage defect under Table 16-3, Knee Regional Grid, of the A.M.A.,
Guides.
By decision dated April 23, 2015, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left lower extremity. The award covered a 23.04-week period
from December 18, 2014 through May 28, 2015.
On May 17, 2018 appellant filed a claim for an increased schedule award (Form CA-7).
In a May 18, 2018 report, Dr. Bernstein noted that he had evaluated appellant’s left knee
condition and he provided range of motion measurements, observing near full range of motion on
the right and 95 degrees of flexion on the left. He explained that there was a progressive decrease
in flexion from her prior examination.
By decision dated August 23, 2018, OWCP denied appellant’s claim for an increased
schedule award finding that no medical evidence was submitted to “support a permanent
impairment to a scheduled member or function of the body.”
On September 14, 2018 appellant requested reconsideration.
December 12, 2018, OWCP denied her request for reconsideration.

By decision dated

In denying appellant’s May 2018 schedule award claim, OWCP failed to consider all the
relevant medical evidence. In its August 23, 2018 decision, it found that no additional medical
evidence had been submitted to support a permanent impairment to a scheduled member or
function of the body. However, Dr. Bernstein’s May 18, 2018 report, finding progressive decrease
in flexion of the left knee, was not addressed.
Because Board decisions are final with regard to the subject matter appealed,3 it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision.4 As
OWCP did not review Dr. Bernstein’s May 18, 2018 report, the Board finds that this case is not in
posture for decision.5 On remand OWCP shall review all relevant evidence of record and,
following any further development of the medical evidence deemed necessary, it shall issue a
de novo decision on appellant’s schedule award claim.6

2

A.M.A., Guides (6th ed. 2009).

3

20 C.F.R. § 501.6(d).

4

See B.C., Docket No. 15-1222 (issued October 20, 2015); William A. Couch, 41 ECAB 548, 553 (1990).

5

See H.H., Docket No. 14-1985 (issued June 26, 2015).

6

In light of the Board’s disposition of the schedule award issue, the nonmerit issue of whether OWCP properly
denied appellant’s request for reconsideration of the merits of the claim is rendered moot. See W.G., Docket No.
18-0451 (issued February 21, 2019).

2

IT IS HEREBY ORDERED THAT the August 23, 2018 and December 12, 2018
decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded
for further action consistent with this order of the Board.
Issued: March 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Long Beach, CA, Employer
__________________________________________

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

Docket No. 07-119
Issued: May 10, 2007

Case Submitted on the Record

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

JURISDICTION
On January 25, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ July 27, 2006 decision. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly suspended appellant’s compensation on the basis
that he refused to undergo a medical examination.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 40-year-old welder, injured his
lower back on July 1, 1987. The Office accepted a claim for low back strain. It commenced
payment of temporary total disability compensation. By decision dated January 16, 1998, the
Office terminated appellant’s compensation and entitlement to medical benefits. By decision
dated July 9, 1998, an Office hearing representative affirmed the January 16, 1998 termination

decision. In a September 21, 2001 decision,1 the Board reversed the Office’s decisions. The
Board found that the Office improperly relied on a medical report which was not sufficiently
rationalized to terminate appellant’s compensation benefits. The complete facts of this case are
set forth in the Board’s September 21, 2001 decision and are herein incorporated by reference.
Appellant’s entitlement to disability compensation was reinstated.
By letter dated February 8, 2006, the Office notified appellant to submit a medical report
on his current condition. The Office advised appellant to submit a medical report within 30 days
or it would refer him for evaluation. Appellant did not respond.
By letter dated June 28, 2006, the Office referred appellant for examination with
Dr. Bunsri T. Sophon, a specialist in orthopedic surgery, in order to obtain an assessment of his
current condition. The letter advised her that the examination was scheduled for July 12, 2006.
Appellant failed to appear at the scheduled July 12, 2006 appointment.
By letter dated July 12, 2006, the Office issued a notice of proposed suspension of
compensation based on appellant’s failure to appear at the scheduled July 12, 2006 examination.
The Office noted that, under section 8123(d) of the Federal Employees’ Compensation Act, an
employee’s right to compensation is subject to suspension if the employee refuses to submit to or
cooperate with a medical examination. The Office stated that appellant had 14 days to explain
why he failed to keep the appointment with Dr. Sophon. If he did not respond or provide good
cause for refusing to keep the appointment, his entitlement to compensation would be suspended
until he agreed to attend and cooperate with the examination as directed. Appellant did not
respond to this letter.
By decision dated July 27, 2006, the Office suspended appellant’s right to compensation
effective August 6, 2006 based on his failure to attend the medical examination scheduled with
Dr. Sophon on July 12, 2006. The Office found that appellant failed to submit an explanation
justifying his failure to attend the medical evaluation.
LEGAL PRECEDENT
Section 8123(a)2 of the Act provides:
“An employee shall submit to examination by a medical officer of the United
States, or by a physician designated or approved by the Secretary of Labor, after
the injury and as frequently and at the times and places as may be reasonably
required....”
The Board has held that a time must be set for a medical examination and the employee
must fail to appear for the appointment, without an acceptable excuse or reason, before the

1

Docket No. 99-1977 (issued September 21, 2001).

2

5 U.S.C. § 8123(a).

2

Office can suspend or deny the employee’s entitlement to compensation on the grounds that the
employee failed to submit to or obstructed a medical examination.3
The Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating
Medical Evidence, 2.810.14(d) (July 2000), provides:
“Failure to Appear. If the claimant does not report for a scheduled appointment,
he or she should be asked in writing to provide an explanation within 14 days. If
good cause is not established, entitlement to compensation should be suspended in
accordance with 5 U.S.C. § 8123(d), until the date on which claimant agrees to
attend the examination.”4
ANALYSIS
The Office informed appellant by letter dated June 28, 2006 that it was referring him for
a medical examination in light of his failure to submit an updated medical report on his current
medical condition. The time for the medical examination by Dr. Sophon was set, appellant was
duly advised of the scheduled appointment and failed to appear for medical evaluation.
Appellant did not present any acceptable excuse or reason for his failure to appear. Following
notice that appellant failed to appear for examination by Dr. Sophon, the Office, in a July 12,
2006 letter, allowed him 14 days to explain why he failed to keep the July 12, 2006 appointment.
He was notified that if he did not respond or if his reasons were found unacceptable, his
entitlement to compensation would be suspended until he agreed to submit to examination as
directed. Appellant failed to respond to this letter.
The Board finds that the Office properly suspended appellant’s entitlement to
compensation due to his failure to keep the medical appointment on July 12, 2006. Appellant
was properly notified of the reasons necessitating his referral for examination by Dr. Sophon and
he failed to submit any justification for failing to keep the appointment. Accordingly, the Board
finds that appellant’s failure to keep the July 12, 2006 appointment with Dr. Sophon constituted
a refusal to submit to a medical examination without good cause. The Office properly invoked
the penalty provision of section 8123(d) of the Act and suspended appellant’s compensation
effective August 6, 2006.5 The Board will affirm the July 27, 2006 Office decision.
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation for refusing
to submit to a medical examination that he was directed to undergo.

3

Margaret M. Gilmore, 47 ECAB 718 (1996); Herbert L. Dazey, 41 ECAB 271 (1989); Delores W. Loges, 38
ECAB 834 (1987).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
5

20 C.F.R. § 10.323 states: “If an employee refuses to submit to or in any way obstructs an examination required
by [the Office], his … right to compensation under [the Act] is suspended until such refusal … stops.”

3

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 10, 2007
Washington, DC

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

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

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

4