United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
RESERVES, Fort McCoy, WI, Employer
__________________________________________

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

Docket No. 11-1448
Issued: March 6, 2012

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, 2011 appellant filed a timely appeal from January 25 and May 16, 2011 merit
decisions of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a
schedule award. 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 that he sustained employment-related
permanent impairment entitling him to a schedule award.
FACTUAL HISTORY
On April 23, 2008 appellant, then a 59-year-old heavy mobile equipment repairer, filed a
claim for traumatic injury, alleging that he sustained a back injury due to his work duties. It
1

5 U.S.C. § 8101 et seq.

occurred while he was climbing up and down trailers and caused numbness in the neck, back,
shoulder and legs.
In an April 25, 2008 medical note with an illegible signature, appellant was diagnosed
with cervical and lumbar strain.
Appellant submitted the first two pages of a June 14, 2010 service-connected rating
decision issued by the Department of Veterans Affairs (VA). He was rated to be 40 percent
disabled due to spondylosis and degenerative joint disease of the lumbar spine, with radiation to
both lower extremities; 20 percent disabled due to his spondylosis and degenerative disc disease
of the cervical spine; and 10 percent disabled due to neuropathy of both upper extremities
secondary to the disability of spondylosis and degenerative disc disease of the cervical spine.
On September 17, 2010 OWCP accepted appellant’s claim for neck and lumbar sprain.
On November 30, 2010 OWCP received appellant’s claim for a schedule award together
with his November 29, 2012 statement, work history and work status reports with illegible
signatures.2 He advised that he was seeking a schedule award for his cervical and lumbar spinal
conditions.3
On December 6, 2010 OWCP requested that appellant’s treating physician, Dr. Keithan
evaluate appellant’s impairment according to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment. The letter asked that appellant
submit the requested information to OWCP within 30 days. No response was received by
OWCP.
Appellant submitted a September 25, 2009 notice issued by the Social Security
Administration, which found that he was entitled to monthly disability benefits.
In a May 13, 2004 medical report, Dr. James Hagler, a family practitioner, provided a
diagnosis of appellant’s conditions preexisting his April 21, 2008 injury.
In a January 25, 2011 decision, OWCP denied appellant’s claim for schedule award
finding that he had failed to provide any medical evidence from an attending physician
addressing permanent impairment.
Appellant disagreed with the decision and requested a review of the written record on
February 4, 2011. He submitted an April 23, 2009 nerve conduction study (NCS) and
electromyography (EMG) reports issued by Dr. Rosalind Bowles, Board-certified in internal

2

Appellant also submitted a traumatic injury claim form dated September 29, 1993, in which he claimed he
injured his elbow while removing an oil pan plug from an engine. On September 2, 2010 OWCP also received from
him a Form CA-7 for a schedule award, which was dated October 1, 1993, claiming a schedule award for
impairment to his right elbow.
3

In the same statement, appellant also requested OWCP to process his schedule award claim for his elbow
impairments, which was under OWCP No. xxxxxx149.

2

medicine, who indicated that the testing was hampered by poor patient relaxation and found no
definite evidence of radiculopathy. An NCS was interpreted as essentially a normal study.
In a May 16, 2011 decision, OWCP’s hearing representative affirmed the January 25,
2011 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.8 It is the claimant’s burden to establish that he or she sustained permanent
impairment to a scheduled member or function as a result of an employment injury.9
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.10 Neither FECA nor the implementing regulations authorize the
payment of a schedule award for the permanent loss of use of the back or spine.11 The Board has
recognized that a claimant may be entitled to a schedule award for a permanent impairment to an
extremity even though the cause of the impairment originates in the back or spine.12
ANALYSIS
Appellant sought a schedule award pursuant to 5 U.S.C. § 8107 for his accepted
employment injuries of the neck and lumbar sprains. The Board finds that there is no probative
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

Thomas P. Lavin, 57 ECAB 353 (2006); H.P., Docket No. 11-894 (issued November 9, 2011).

9

Tammy L. Meehan, 53 ECAB 229 (2001); H.P., supra note 8.

10

William Edwin Muir, 27 ECAB 579 (1976); C.E., Docket No. 11-637 (issued October 14, 2011).

11

FECA specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

12

F.W., Docket No. 11-191 (issued October 17, 2011); see also Thomas J. Englehart, 50 ECAB 319 (1999).

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medical evidence of record to establish any ratable permanent impairment to any of his upper or
lower extremities resulting from the accepted employment injury.
FECA does not provide for schedule awards for impairment of the back or spine.
Schedule awards can be paid for permanent impairment of an extremity, however, even if the
impairment originates in the spine. Appellant has not submitted any medical evidence to
substantiate that he sustained permanent impairment of any upper or lower extremity. On
December 6, 2010 OWCP requested that he obtain a report from his treating physician,
Dr. Keithan, and to rate impairment according to the sixth edition of the A.M.A., Guides. It did
not receive any medical evidence in response. There is no medical evidence addressing
appellant’s permanent impairment pursuant to the sixth edition of the A.M.A., Guides.
OWCP received disability ratings from the VA and the Social Security Administration.
The Board has long held that decisions by other governmental agencies regarding claims brought
under federal statutes other than FECA not binding on OWCP.13 The standards for determining
entitlement to a schedule award under FECA and the A.M.A., Guides are different from the
standards used for determination of disability for purposes of VA or social security disability
benefits.
OWCP also received results of April 23, 2009 NCS and EMG studies; but Dr. Bowles did
not address the relevant issue of appellant’s permanent impairment pursuant to the A.M.A.,
Guides.
It is appellant’s burden to establish entitlement to a schedule award. This necessitates
medical evidence addressing permanent impairment and the date of maximum medical
improvement did not meet his burden in this case.
Appellant may request a schedule award in the future based on medical evidence showing
that he sustained permanent impairment to a scheduled member or function of the body.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award under 5 U.S.C. § 8107
as the medical evidence does not establish a ratable employment-related permanent impairment
to a scheduled member or function of the body.

13

K.T., Docket No. 11-278 (issued October 6, 2011); see also Raj B. Thackurdeen, 54 ECAB 396 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 16 and January 25, 2011 are affirmed.
Issued: March 6, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________
Appearances:
Joanne Wright, for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-1783
Issued: July 29, 2019

Case Submitted on the Record

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

On September 25, 2018 appellant, through her representative, filed a timely appeal from a
June 29, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 18-1783.
On April 15, 2016 appellant, then a 35-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1), assigned OWCP File No. xxxxx289, alleging that on February 10, 2016
she sprained her left ankle when she lost control of a heavy gurney of mail that she was moving
down a ramp at work while in the performance of duty. No evidence was received with the claim.
OWCP, in a development letter dated April 25, 2016, advised appellant of the factual and
medical deficiencies of her claim and requested that she provide medical evidence, including a
well-rationalized report from her physician which explained how the reported incident caused or

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.

aggravated her medical condition. Appellant was afforded 30 days to submit the requested
evidence. No additional evidence was received.
By decision dated May 26, 2016, OWCP denied appellant’s traumatic injury claim finding
that she had not submitted medical evidence containing a medical diagnosis in connection with the
accepted February 10, 2016 employment incident. On June 7, 2016 appellant requested an oral
hearing before an OWCP hearing representative and submitted medical evidence.
By decision dated April 5, 2017, an OWCP hearing representative affirmed the May 26,
2016 decision with modification. She found that appellant had established the diagnoses of left
ankle sprain, left peroneal tendon tear, and left ankle injury with peroneal tendinitis. The hearing
representative predicated her finding on the medical evidence in the present claim as well as
medical reports contained in appellant’s prior October 16, 2015 traumatic injury claim, assigned
OWCP File No. xxxxxx115, which OWCP had accepted for sprain of unspecified ligament of the
left ankle and strain of muscles and tendons of the peroneal group at the lower left leg. The present
claim, however, remained denied as the medical evidence in OWCP File Nos. xxxxxx289 and
xxxxxx115 did not contain a rationalized opinion establishing causal relationship between the
diagnosed conditions and the accepted February 10, 2016 employment incident.
On April 2, 2018 appellant, through her representative, requested reconsideration and
submitted additional medical evidence. By decision dated June 29, 2018, OWCP denied
modification of the April 5, 2017 decision finding that the medical evidence in OWCP File Nos.
xxxxxx289 and xxxxxx115 was insufficient to establish that appellant’s diagnosed left ankle
conditions were causally related to the February 10, 2016 employment incident.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-reference between files.2 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.3
In adjudicating appellant’s instant claim under File No. xxxxxx289, OWCP specifically
referenced medical evidence obtained from File No. xxxxxx115. However, such records are not
available for the Board to review as the files have not been administratively combined. Without
the ability to review this evidence, the Board is not in a position to make an informed decision
regarding appellant’s entitlement to FECA benefits.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with File No. xxxxxx115.4 Following this and other such further

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000) (cases should be doubled/combined when correct adjudication of the issues depends on frequent
cross-reference between files).
3

Id.

4

See R.G., Docket No. 18-0244 (issued May 21, 2018).

2

development as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s
claimed February 10, 2016 injury.
IT IS HEREBY ORDERED THAT the June 29, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: July 29, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, HEALTH &
RESOURCE MANAGEMENT, Pittsburgh, PA,
Employer
__________________________________________

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1068
Issued: January 18, 2011

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant, through her attorney, filed a timely appeal from a
December 22, 2009 merit decision of the Office of Workers’ Compensation Programs denying
her claim for a stress-related condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained anxiety and uncontrollable hypertension due to
factors of her federal employment.
FACTUAL HISTORY
On April 9, 2008 appellant, then a 76-year-old labor custodian, filed an occupational
disease claim alleging that she sustained anxiety and uncontrollable hypertension due to workrelated stress. She attributed her condition to constant harassment after she returned to work
following an employment injury.

On July 9, 2008 appellant related that her condition began when she “came back to work
April of 2007 after being off work for 10 months on work[ers’] comp[ensation].” When she
returned to work following her injury the employing establishment placed her in a clerk’s
position called “held for postage” rather than in maintenance. Appellant worked as a clerk from
July 2007 to February 2008. Christine Carter, a supervisor, accused her of stealing time because
she arrived on the work floor after the other clerks. Appellant explained that she had to clock in
maintenance and then wait for a mandatory safety talk with her maintenance supervisor. She
informed Ms. Carter that it was unfair that she worked as a clerk but received the pay of a
maintenance employee. Appellant discussed difficulties obtaining a handicap parking place. In
February 2008, she alleged Ms. Carter took mail from her desk. Appellant protested loudly
because of her hearing problem and Ms. Carter mistook her loud voice for yelling. She sought
help from the inspection service. Appellant claimed Ms. Carter issued her a letter of warning on
February 15, 2008 “in retaliation for a grievance [she] filed against her for harassment and
unfounded charges.” The employing establishment also allegedly improperly issued appellant a
letter of warning on March 7, 2008. Appellant asserted that she would have violated her walking
restrictions if she had to take an elevator to the first floor and walk to the closest bathroom. She
described her need to seek medical treatment due to her high blood pressure from stress.
The letter of warning issued to appellant on February 16, 2008 was for failure to follow
instructions and improper conduct on February 6, 2008. It indicated that a manager requested
that she “stop yelling on the work floor” but she did not comply. On February 28, 2008
management agreed to settle the grievance by reducing the letter of warning to an official
discussion and removing references to the disciplinary action from appellant’s personnel file.
In a March 6, 2008 description of incident, appellant related that on February 25, 2008
Mike Bashioum, a supervisor, alleged that appellant violated her limited-duty restrictions by
climbing two steps to use the restroom. Mr. Bashioum instructed her to take the elevator down
to the work floor to use the facilities. Appellant asserted that walking up two steps was not
climbing and maintained that management was retaliating against her for having the inspection
service investigate why management assigned her to work as a clerk instead of in maintenance
without paying her the proper salary.
In the March 7, 2008 letter of warning, the employing establishment charged appellant
with improper conduct and creating an unsafe condition when she violated limited-duty
restrictions against climbing.1 The letter indicated that she walked up and down stairs in
violation of the climbing restriction set forth in a February 4, 2008 work restriction evaluation.
The employing establishment noted that appellant had previously failed to follow limited-duty
restrictions by not having the forms with her and being confrontational. In the attached
February 4, 2008 work restriction evaluation, a physician found that appellant could work with
restrictions, including zero hours of climbing. In a Step 1 grievance decision dated June 25,
2008, management agreed to reduce the letter of warning issued on March 7, 2008 to an official
discussion.

1

By letter dated March 12, 2008, the employing establishment controverted the claim, noting that it issued the
March 7, 2008 letter of warning because appellant was violating her medical restrictions.

2

In a statement dated April 1, 2008, Mary Wilson, a coworker, related that the employing
establishment discriminated against appellant by refusing to allow her to eat lunch in the
storeroom and instructing her to use a walker rather than a cart for support when walking.
On June 4, 2008 the employing establishment noted that appellant was confrontational
during discussions and had received several disciplinary actions for failing to adhere to her
medical restrictions.
By letter dated June 30, 2008, appellant related that she filed a grievance on February 8,
2008 against Ms. Carter, who retaliated by issuing the February 15, 2008 letter of warning.2 She
alleged Mr. Bashioum wrongly accused her of violating her limited-duty restrictions. Appellant
related that her physician informed the employing establishment that she could walk up two steps
to use the bathroom.
By decision dated October 7, 2008, the Office denied appellant’s claim for a stressrelated condition after finding that she did not establish any compensable factors of employment.
On June 19, 2009 counsel requested reconsideration. He argued that the employing
establishment erroneously changed appellant’s work location when she returned to work after her
injury in violation of policy. On April 27, 2007, following a grievance, the employing
establishment rescinded the change in workstation. The employing establishment also
erroneously assigned appellant to work as a clerk but paid her as a custodian upon her return to
work following an injury. Appellant filed a grievance that was settled with her receiving “back
pay for the difference in wage between the custodian and clerk positions.” Counsel maintained
that Ms. Carter accused appellant of stealing time because she was later than the other clerks
even though she had to travel from a more distant area, used a cane, and had to listen to a safety
talk or job assignment from a maintenance supervisor. He further asserted that management
harassed her in February 2008 when it gave her a letter of warning for using a convenient
bathroom. Counsel contended that the restrictions against climbing referred to ladders rather
than climbing two steps to use a bathroom.3 He stated, “Reprimanding an employee for violating
his or her restrictions may be an administrative duty of the employer, but considering the facts
surrounding this incident, reprimanding someone for walking up two stairs to use the bathroom
is abusive.”
In a July 16, 2008 Step 2 grievance decision, received by the Office on September 9,
2009, the employing establishment agreed to pay appellant $999.00 to resolve the grievance she
filed contending that she was assigned to perform clerk duties without receiving the proper
compensation.
By letter dated September 3, 2009, Ms. Carter related that she supervised appellant when
she was assigned to Held for Postage in June 2007. Appellant’s coworkers were afraid of her
because she was rude, loud and abusive. An inspector from the Office of the Inspector General
2

Appellant also submitted medical evidence in support of her claim.

3

Appellant’s attorney submitted evidence showing that the position of laborer/custodian required climbing
ladders.

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(OIG) observed her behavior and told Ms. Carter that appellant should not work with mail
because she was a custodian and she threw away first class mail. The investigator “requested
that she be removed from the Held for Postage work section and return back to maintenance
immediately.” Management moved appellant back to working as a modified custodian.
On September 4, 2009 Mr. Bashioum related that appellant could clock in at any location
and that she could park in a handicapped space. He submitted evidence describing past
disciplinary actions. Mr. Bashioum indicated that appellant volunteered to be assigned to
another building upon her return to work but subsequently changed her mind. He enclosed
evidence showing that she had selected Building 2, a warehouse, for assignment in April 2007.
On April 27, 2007 the employing establishment rescinded appellant’s assignment to the
warehouse and indicated that she would remain in her current location.
On November 20, 2009 appellant denied that she was violating her restrictions as no
physician found that she could not go up two stairs.4 She maintained that the accusation was in
“retaliation for going to the inspection services.” Appellant challenged the employing
establishment’s version of her work and actions. She explained the circumstances surrounding
the disciplinary action taken against her. Appellant maintained that the employing establishment
erred in not providing her modified work within her craft and harassed her so that she would
retire.
By decision dated December 22, 2009, the Office denied modification of its October 7,
2008 decision.
On appeal counsel argued that appellant has established as compensable work factors that
the employing establishment erroneously attempted to remove her from the building when she
returned to work following an injury. He noted that the letter rescinding the change of
assignment indicated that it was made in error. Counsel argued that the employing establishment
also erred in its administrative duty “by paying [appellant] the normal wage for a labor-custodian
when she was performing clerk work as part of the limited/light[-]duty assignment due to a
previously accepted work[-]related injury.” He additionally maintained that the employing
establishment erred in finding going up two stairs to be climbing. Counsel argued that
Ms. Wilson’s statement shows harassment by the employing establishment. He also discussed
the medical evidence.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
4

In a statement dated September 15, 2009, George I. Matula, a former coworker, related that appellant endured
“negative and antagonizing conduct” while working for the employing establishment. Two other people provided
character references.

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Act.5 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.7 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.10 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.11 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.12 The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.13
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
8

See William H. Fortner, 49 ECAB 324 (1998).

9

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

10

See Michael Ewanichak, 48 ECAB 364 (1997).

11

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

12

See James E. Norris, 52 ECAB 93 (2000).

13

Beverly R. Jones, 55 ECAB 411 (2004).

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providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.14 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.15
ANALYSIS
Appellant did not attribute her anxiety and uncontrollable hypertension to the
performance of her regularly or specially assigned duties or as the result of a specific
requirement imposed by her employment. Instead she maintained that the employing
establishment harassed her and issued unwarranted disciplinary action. Appellant asserted that
the employing establishment erred in initially assigning her to a new location when she returned
to work following an employment injury. She indicated that, following a grievance, the
employing establishment rescinded the reassignment. Matters regarding transfers, however, are
not compensable factors of employment without a showing of error or abuse as they do not
involve the employee’s ability to perform her regular or specially assigned work duties, but
rather constitute a desire to work in a different position.16 In determining whether the employer
erred or acted abusively, the Board has examined whether it acted reasonably.17 On
September 4, 2009 Mr. Bashioum related that appellant had selected the warehouse building for
assignment but then changed her mind. He submitted an April 25, 2007 preferred duty
assignment selection form from her indicating that she preferred the warehouse building and the
April 27, 2007 letter rescinding her assignment to the warehouse building. There is no evidence
demonstrating that the employing establishment acted unreasonably in initially assigning her to
work in a building that she had selected; consequently, she has not established a compensable
work factor.
Appellant further attributed her condition to disciplinary action taken by the employing
establishment. She maintained that it erroneously issued her a letter of warning on February 16,
2008 for failing to follow instructions and yelling on the work floor on February 6, 2008.
Disciplinary actions are administrative functions of the employer and not duties of the employee
and, unless the evidence discloses error or abuse on the part of the employing establishment, are
not compensable employment factors.18 Appellant related that she spoke in a loud voice on
February 6, 2008 because she had difficulty hearing and Ms. Carter, her supervisor, interpreted
her loud voice as yelling. She has not, however, submitted any evidence corroborating this
assertion. On February 28, 2008 management agreed to reduce the letter of warning to an
official discussion. The mere fact that the employing establishment lessens or reduces a
14

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

15

Id.

16

Hasty P. Foreman, 54 ECAB 427 (2003); James E. Norris, 52 ECAB 93 (2000).

17

See Brian H. Derrick, 51 ECAB 417 (2000).

18

See L.C., 58 ECAB 493 (2007); Lori A. Facey, 55 ECAB 217 (2004).

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disciplinary action does not establish that it acted in an abusive manner towards the employee.19
Appellant, consequently, has not established a compensable work factor.
Appellant additionally maintained that Ms. Carter issued the February 16, 2008 letter of
warning in retaliation for a grievance. Harassment and discrimination by supervisors and
coworkers, if established as occurring and arising from the performance of work duties, can
constitute a compensable work factor.20 A claimant, however, must substantiate allegations of
harassment and discrimination with probative and reliable evidence.21 Appellant submitted an
April 1, 2008 letter from Ms. Wilson, a coworker, who related that the employing establishment
would not allow her to eat lunch in the storeroom and wanted her to use a walker rather than a
cart for support when walking. Ms. Wilson did not address any of the incidents identified by
appellant as constituting harassment and discrimination; consequently, her statement is of little
probative value.
Appellant further maintained that Ms. Carter harassed her by accusing her of “stealing
time” because she arrived at work later than the other clerks. She explained that she arrived later
because she had to “clock in” in maintenance and listen to a safety talk before beginning work in
the area for clerks. Appellant also described difficulty obtaining a handicapped parking spot.
Mr. Bashioum, however, related that she could “clock in” to work from anywhere in the building
and that handicapped spaces were available. Appellant has not submitted sufficient factual
evidence supporting her allegations that Ms. Carter harassed and discriminated her and has not
established a compensable work factor.
Appellant additionally argued that the employing establishment wrongly issued her a
March 7, 2008 letter of warning for violating her work restrictions on February 25, 2008 by
climbing up two steps to use the bathroom. The employing establishment submitted a copy of
February 4, 2008 work restrictions indicating that she could perform no climbing. Appellant
maintained that the climbing restriction referred to ladders rather than stairs and noted that her
physician clarified that she could walk up two steps to use the bathroom. The employing
establishment, however, explained that she had received past disciplinary action for failing to
adhere to her medical restrictions. On June 25, 2008 following a grievance, it agreed to reduce
the letter of warning to an official discussion; however, as previously discussed, the mere fact
that the employing establishment lessens or reduces a disciplinary action does not establish that it
acted in an abusive manner towards the employee.22 Appellant has not submitted evidence
showing that the employing establishment erred in issuing the March 7, 2008 letter of warning;
consequently, she has not shown a compensable work factor.
Appellant further maintained that the employing establishment erred in placing her in the
position of clerk when she returned to work following her employment injury but paying her the
salary of a maintenance employee. On appeal, counsel contended that paying her as a
19

Peter D. Butt, Jr., 56 ECAB 117 (2004); Linda K. Mitchell, 54 ECAB 748 (2003).

20

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

21

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

22

See Linda K. Mitchell, supra note 19.

7

maintenance worker instead of as a clerk constituted administrative error.23 Appellant filed a
grievance regarding her pay for her work as a clerk, and, in a July 16, 2008 decision, she
received $999.00 as resolution of the grievance. On September 3, 2009 Ms. Carter related that
an investigator with the OIG’s office questioned why appellant was working as a clerk when she
was a maintenance employee and indicated that she should not be working with the mail. The
Board finds that appellant has supported her contention that the employing establishment erred in
an administrative action by assigning her to work as a clerk without receiving the proper pay.
As appellant has established a compensable employment factor, the Office must base its
decision on an analysis of the medical evidence. As the Office found there were no compensable
employment factors, it did not analyze or develop the medical evidence. The case will be
remanded to the Office for this purpose.24 After such further development as deemed necessary,
the Office should issue a de novo decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision.

23

On appeal, counsel also maintains that the employing establishment erred in trying to transfer appellant to
another building and by issuing her disciplinary action for allegedly violating her work restrictions. As discussed,
however, the evidence is insufficient to show error or abuse by the employer in these administrative actions.
24

See A.K., 58 ECAB 119 (2006); Robert Bartlett, 51 ECAB 664 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the December 22, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.U., Appellant
and
DEPARTMENT OF THE ARMY, PUEBLO
CHEMICAL DEPOT, Pueblo, CO, Employer
__________________________________________

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

Docket No. 17-1680
Issued: January 9, 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 August 1, 2017 appellant filed a timely appeal from a May 18, 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 over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish back and left shoulder
conditions causally related to the accepted January 31, 2017 employment incident.
On appeal appellant contends that he sustained a work-related left shoulder injury based
on his physician’s opinion.
1
2

5 U.S.C. § 8101 et seq.

Following the issuance of OWCP’s May 18, 2017 decision, appellant submitted new evidence. The Board’s
jurisdiction is limited to evidence which was before OWCP at the time it issued its final decision. Thus, the Board is
precluded from reviewing this new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 7, 2017 appellant, then a 52-year-old industrial equipment maintenance
mechanic/welder/lifting inspector, filed a traumatic injury claim (Form CA-1) alleging that on
January 31, 2017 he sustained upper back and left shoulder injuries as a result of repetitive use of
his upper body during cutting and welding operations at work. He stopped work on the date of
injury and returned to work on February 6, 2017.
Medical reports and invoices dated February 28 and March 1, 16, and 28, 2017 from
Dr. Daniel A. Olson, an attending occupational medicine specialist, noted a history of injury that
appellant developed left shoulder pain while performing repetitious and continuous work that
involved welding and moving steel. He also noted a history of appellant’s social and family
background. Dr. Olson described examination findings and diagnosed work-related strain of
muscle(s) and tendon(s) of the right shoulder rotator cuff, initial encounter. He listed appellant’s
physical restrictions and advised that appellant could return to modified-duty work from
February 28 through March 13, 2017. Subsequently, Dr. Olson placed appellant off work on
March 13, 2017 and advised that he could return to modified work from March 28 through
April 18, 2017. In the March 1, 2017 invoice, he related that the objective findings were
consistent with a history of a work-related etiology. In a March 13, 2017 medical referral form,
Dr. Olson referred appellant for physical therapy treatment. He corrected his prior diagnosis of
work-related strain of muscle(s) and tendon(s) of the right shoulder rotator cuff, initial encounter
to reflect a diagnosis of work-related strain of muscle(s) and tendon(s) of the left shoulder rotator
cuff, initial encounter. In a second March 13, 2017 referral form, Dr. Olson again referred
appellant for physical therapy.
A March 16, 2017 report from a physical therapist addressed the treatment of appellant’s
left shoulder condition on that date. A January 31, 2017 laboratory report provided blood test
results.
In a January 31, 2017 report, Dr. Trace C. Caton, an emergency medicine specialist,
indicated that appellant complained about pain in his left upper back and left shoulder which
appellant attributed to his work. Appellant’s chief complaint was chest pain. He reported that he
was welding on January 31, 2017 and he felt sudden pain in his upper back below the scapula.
Dr. Caton noted a history of appellant’s medical and social history. He discussed examination
findings and diagnostic test results and reviewed laboratory test results. Dr. Caton diagnosed left
upper back pain. He provided a secondary diagnosis of dyspnea.
In a February 28, 2017 medical referral form, a physician assistant referred appellant for
physical therapy to treat his work-related bilateral shoulder strain.
OWCP, in an April 13, 2017 development letter, advised appellant that when his claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and, since the employing establishment did not controvert continuation of pay or challenge
the case, a limited amount of medical expenses were administratively approved and paid. It
noted that it had since reopened the claim for consideration because the medical bills had
exceeded $1,500.00. OWCP requested that appellant submit additional factual and medical
evidence to support his claim.

2

OWCP subsequently received an April 18, 2017 report in which Dr. Olson provided a
history of his treatment of appellant. Dr. Olson noted that appellant presented with left shoulder
pain from repetitive lifting and pushing. Appellant also had pain with impingement findings, but
responded extremely well to therapy. Dr. Olson diagnosed left shoulder sprain and possible
bursitis. He related that appellant’s activity at work with overhead reaching, pushing, and
welding contributed to his shoulder pain. Dr. Olson released appellant to return to full-duty
work with no restrictions as of the date of his letter. In additional reports dated April 18, 2017
and an April 25, 2017 invoice, he reiterated appellant’s history of injury. Dr. Olson described
examination findings and diagnosed strain of muscle(s) and tendon(s) of the left shoulder rotator
cuff, subsequent encounter. He again indicated that appellant was released to return to full-duty
work with no restrictions as of April 18, 2017.
On April 25, 2017 appellant responded to OWCP’s April 13, 2017 development
questionnaire. He explained that while sitting at his welding table at work, he lifted his left arm
to raise his hood and heard a pop and felt a stabbing pain in his left shoulder and down the left
side of his back. Appellant noted that he had severe breathing difficulty caused by this incident.
He reported his injury to his supervisor who brought him to a clinic for evaluation. Appellant
was transported by ambulance to a medical center emergency room for further evaluation and
treatment. He indicated that he had no similar disability or symptoms before his claimed injury.
Appellant clarified that he was claiming a traumatic injury.
OWCP received a January 31, 2017 chest x-ray from Dr. David R. Abbott, a radiologist.
Dr. Abbott provided an impression of mild streaky opacities within the lung bases favoring
subsegmental atelectasis or hypoventilatory change, although mild basilar infiltrate would be
difficult to exclude. He also provided an impression of no pneumothorax or pleural effusion.
Dr. Abbott found the cardiac silhouette within normal size limits.
In a February 23, 2017 authorization for examination and/or treatment form (Form CA16), the employing establishment authorized appellant’s medical treatment. In the attending
physician’s report portion of the Form CA-16 completed on February 28, 2017, Dr. Olson
indicated that the history of the employment injury provided by appellant was that pain
developed gradually in his left shoulder. He reported findings and reiterated his prior diagnosis
of left shoulder strain. Dr. Olson checked a box marked “Yes” indicating that the condition
found was caused or aggravated by the described employment activity. He indicated that
appellant could perform light work with restrictions.
In a February 28, 2017 report, Dr. Louis G. Arvanetes, a Board-certified radiologist,
related that his x-ray of the bilateral acromioclavicular (AC) joints was not compared to another
x-ray. He provided an impression that with and without weights, the distal clavicle and its
association with the acromion did not change on either side. Dr. Arvanetes reported that no bony
abnormality was appreciated. In another February 28, 2017 x-ray report, he advised that no
acute bony or joint abnormality was evident. Dr. Arvanetes related that one could argue that
there was some mild osteoarthritis about each AC joint and some evolving geode formation
within the right humeral greater tubercle on the right and maybe a small bony island. The upper
lungs were clear.

3

On April 6, 2017 a physical therapist noted a history of the claimed January 31, 2017
employment incident and described findings. She assessed appellant as having a left shoulder
strain secondary to a work-related injury.
By decision dated May 18, 2017, OWCP denied appellant’s traumatic injury claim as the
medical evidence of record did not contain a rationalized opinion from a physician to establish a
causal relationship between the diagnosed right shoulder condition and the accepted January 31,
2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The claimant’s mere belief that the condition was caused or aggravated by
the employment is insufficient to establish causal relationship.9

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

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

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish back and left
shoulder conditions caused or aggravated by the accepted January 31, 2017 employment
incident.
Appellant submitted a series of reports dated February 28 to April 25, 2017 from his
attending physician, Dr. Olson. In these reports, Dr. Olson indicated that appellant developed
left shoulder pain while performing work activity and diagnosed work-related shoulder and
rotator cuff stains.10 For example, in an April 18, 2017 report, he opined that appellant’s work
activity, which included overhead reaching, pushing, and welding, contributed to his diagnosed
left shoulder sprain and possible bursitis. In a March 13, 2017 medical referral form, Dr. Olson
diagnosed work-related strain of muscle(s) and tendon(s) of the left shoulder rotator cuff. He
failed, however, to discuss the specific lifting incident on January 31, 2017 and address how it
would have caused or contributed to the diagnosed conditions. A physician must provide an
opinion on whether the employment incident described caused or contributed to the claimant’s
diagnosed medical condition and support that opinion with medical reasoning to demonstrate that
the conclusion reached is sound, logical, and rational.11 In a February 28, 2017 form report,
Dr. Olson noted that appellant reported a gradual development of pain in his left shoulder. He
provided findings and diagnosed left shoulder strain. Dr. Olson checked a box marked “Yes,”
indicating that the diagnosed condition was caused or aggravated by the described employment
activity. However, a report that addresses causal relationship with a check mark, without
medical rationale explaining how the employment incident caused or aggravated the alleged
injury, is of diminished probative value and insufficient to establish causal relationship.12
In reports dated April 18 and 25, 2017, Dr. Olson noted a history of the accepted
January 31, 2017 employment incident, and provided findings, diagnoses, and appellant’s work
capacity. However, he did not offer an opinion on whether the accepted work incident caused or
aggravated the diagnosed condition.13 Dr. Olson’s second referral form dated March 13, 2017
failed to mention the January 31, 2017 employment incident and also failed to provide an
opinion on whether appellant’s left shoulder strain was causally related to the January 31, 2017
work incident.14
Appellant also submitted Dr. Caton’s January 31, 2017 report. Dr. Caton noted a history
of the January 31, 2017 employment incident, discussed examination findings, and diagnosed
left upper back pain and dyspnea. The Board has consistently held that pain is a symptom and
10

In some of these initial reports, Dr. Olson identified the right rather than the left shoulder in his diagnoses. On
March 13, 2017 he corrected his error.
11

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

12

See D.B., Docket No. 16-0798 (issued December 2, 2016).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).
14

Id.

5

not a compensable medical diagnosis.15 Moreover, Dr. Caton failed to offer an opinion
addressing whether these conditions were caused or aggravated by the January 31, 2017
employment incident.16 Thus, the Board finds that Dr. Caton’s report is of diminished probative
value.
Likewise, the diagnostic reports from Drs. Abbott and Arvanetes as well as the
January 31, 2017 laboratory report are of diminished probative value. This evidence failed to
provide a physician’s opinion relating the diagnosed conditions to the accepted employment
incident.17
The March 16 and April 6, 2017 reports from a physical therapist and February 28, 2017
report from a physician assistant found that appellant had a work-related bilateral shoulder
condition. However, the Board has held that physical therapists and physician assistants are not
considered physicians as defined under FECA.18 As such, this evidence is also insufficient to
meet appellant’s burden of proof.
The Board finds that appellant has failed to submit rationalized, probative medical
evidence sufficient to establish a back or left shoulder injury causally related to the accepted
January 31, 2017 employment incident. Appellant, therefore, has not met his burden of proof.
On appeal appellant contends that he sustained a work-related left shoulder injury based
on his physician’s opinion. For the reasons set forth above, the Board finds that the weight of the
medical evidence failed to establish back and left shoulder conditions causally related to the
January 31, 2017 employment incident.
The Board notes that the employing establishment executed a Form CA-16 on
February 23, 2017 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.19 Although OWCP denied appellant’s claim for an employment
injury, it did not address whether he is entitled to reimbursement of medical expenses pursuant to
the Form CA-16.20 Upon return of the case, OWCP should further address this matter.

15

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

16

Supra note 13.

17

Id.

18

5 U.S.C. § 8101(2); Sean O Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2
ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of
probative medical evidence from a physician).
19

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300, 10.304.

20

L.D., Docket No. 16-1289 (issued December 8, 2016).

6

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 failed to meet his burden of proof to establish back
and left shoulder conditions causally related to the accepted January 31, 2017 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 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
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
MEDICAL COMMAND, Fort Hood, TX,
Employer
__________________________________________

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

Docket No. 20-1206
Issued: February 5, 2021

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 May 18, 2020 appellant filed a timely appeal from a November 25, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated August 21, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 22, 2012 appellant, then a 55-year-old cook, filed a traumatic injury claim (Form
CA-1) alleging that on March 12, 2012 she sustained a back strain and thigh contusion when a
coworker assaulted her over the use of a cart while in the performance of duty.4 She stopped work
on March 21, 2012. In a March 14, 2012 statement, appellant explained that on March 12, 2012
she was assaulted by her coworker when she was using a food cart. She indicated that the coworker
pushed the cart towards her, pushed her in the back causing her to fall on the table, and hit her in
the face.
Appellant was initially treated in the employing establishment health unit. In a March 12,
2012 examination note, Dr. Jonathan E. Wiese, a Board-certified emergency medicine physician,
diagnosed back strain and thigh contusion.
In a decision dated May 16, 2012, OWCP denied appellant’s claim on the basis that the
injury was not sustained in the performance of duty.
On September 13, 2012 appellant requested reconsideration and submitted a May 28, 2012
report by Dr. Robert B. Mandell, a clinical psychologist, who opined that appellant experienced
depression and anxiety due to the alleged March 12, 2012 employment incident.
OWCP also received a May 2, 2012 initial injury report by Dr. Les Benson, a Boardcertified emergency medicine physician, who described that appellant was shoved from behind
and then struck in her face by a coworker at work. Dr. Benson noted that appellant was later
arrested and suffered acute anxiety. He conducted an examination and diagnosed lumbar strain,
cervical strain, hip/thigh contusion, and face contusion. Dr. Benson opined that the injuries that
appellant suffered were due to the physical attack and subsequent arrest that occurred on
March 12, 2012.

3

Docket No. 15-1829 (issued January 28, 2016).

4

The record reveals that appellant has two previously accepted claims for a lumbar condition. Under File No.
xxxxxx268, OWCP accepted that appellant sustained a back strain due to a January 23, 2009 employment injury.
Under File No. xxxxxx296, it accepted that appellant sustained lumbar sprain and sciatica as causally related to a
September 27, 2011 employment injury. OWCP also accepted a neck condition under OWCP File No. xxxxxx128
due to a July 26, 2006 employment injury. These claims have not been administratively combined by OWCP with
the current claim.

2

By decision dated November 16, 2012, OWCP modified the May 16, 2012 decision. It
accepted that the March 12, 2012 employment incident occurred in the performance of duty, but
denied appellant’s claim, finding that the medical evidence of record was insufficient to establish
that her diagnosed medical conditions were causally related to the accepted March 12, 2012
employment incident.
Appellant disagreed with the decision and continued to request reconsideration on
October 1, 2013, January 7, March 7, and May 13, 2014. She submitted medical reports regarding
the treatment she received for the diagnosed conditions of back strain, cervical strain, hip and thigh
contusion, face contusion, and adjustment disorder with depression.
By decisions dated December 19, 2013, February 19 and April 15, 2014, and January 28,
2015, OWCP denied modification of its prior decisions.
On February 25, 2015 appellant requested reconsideration of the January 28, 2015
decision. In a March 6, 2015 decision, OWCP denied appellant’s request for reconsideration.
On March 20, 2015 appellant again requested reconsideration and submitted a March 9,
2015 “Letter of Causation” by Dr. Benson. Dr. Benson described the March 12, 2012 employment
incident and opined that appellant sustained and developed an intramuscular lipoma (mass), which
had to be surgically removed, due to being hit in the left thigh with a food cart.
By decision dated June 18, 2015, OWCP denied modification of the January 28, 2015
decision, finding that the medical evidence of record was insufficient to establish causal
relationship.
Appellant appealed to the Board. By decision dated January 28, 2016, the Board affirmed
the June 18, 2015 OWCP decision. The Board determined that the medical evidence of record
was insufficient to establish that appellant’s diagnosed back strain and left thigh contusion were
causally related to the accepted March 12, 2012 employment incident.
On February 18, 2016 OWCP received appellant’s request for reconsideration. Appellant
requested additional time to submit new and relevant evidence. No additional evidence was
received.
By decision dated March 2, 2016, OWCP denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a).
On September 10, 2016 appellant again requested reconsideration and submitted additional
medical evidence. In a September 9, 2016 statement, she alleged that her lumbar spine condition
was aggravated by her new work-related cervical spine injury.
OWCP received various chart and procedure notes dated June 13, 2016 through
October 22, 2016. It also received diagnostic evaluation reports, including a May 21, 2016 left
shoulder x-ray film report, a June 13, 2016 lumbar spine magnetic resonance imaging (MRI) scan
report, a June 14, 2016 cervical spine MRI scan report, a June 30, 2016 lumbar spine MRI scan
report, and an August 2, 2016 electrodiagnostic study report.

3

In a June 28, 2016 progress note, Dr. Mounir Fawzi Khalil, a Board-certified physical
medicine and rehabilitation physician, indicated that a recent cervical MRI scan report
demonstrated moderate C5-6 spinal stenosis, mild-to-moderate C4-5 spinal canal stenosis, and
mild degenerative changes at other levels. He reported that appellant’s complaints of neck pain
with left arm pain did not match with her MRI scan findings.
In an August 31, 2016 “Letter of Causation,” Dr. Benson described appellant’s
employment duties as a cook and the March 12, 2012 employment incident. He indicated that
appellant had complained of neck pain. Dr. Benson discussed appellant’s cervical MRI scan and
opined that the injury that appellant sustained to her neck on March 12, 2012 was the “direct cause
to her being assaulted by a coworker and being punched in the face causing her neck to jerk back
in a whiplash motion.”
In a November 18, 2016 decision, OWCP denied modification.
On April 27, 2017 appellant requested reconsideration. In support, thereof, she submitted
additional factual and medical evidence.
In an April 27, 2017 letter, Dr. Thomas Martens, an osteopath who specializes in family
medicine, reviewed appellant’s history and opined that the medical evidence of record had
established causal relationship because appellant’s cervical injury would not have occurred
without the March 12, 2012 assault at work. He explained that a cervical herniated disc was caused
by excessive stress being placed on the disc as a result of heavy lifting or other damaging motions.
Dr. Martens reported that appellant was on duty, was assaulted by another employee, and sustained
an injury. He also completed duty status reports (Form CA-17) dated April 12, 2016 through
May 23, 2017, which indicated that appellant could not return to work.
In a July 26, 2017 decision, OWCP denied modification of the November 18, 2016
decision.
On September 21, 2017 appellant again requested reconsideration and submitted additional
medical evidence.
In a September 21, 2017 letter, Dr. Martens reiterated that appellant was on duty, was
assaulted by another employee, and sustained an injury. He reviewed the definition of causal
relationship and aggravation and indicated that appellant’s injury would not have occurred without
the interfering factor of the other employee on March 12, 2012. Dr. Martens also reported that
appellant’s injury occurred in a specific time, place, and affected a body part, which met the criteria
of “traumatic injury.”
In a September 26, 2017 decision, OWCP denied modification of the July 26, 2017
decision.
On May 22, 2018 appellant requested reconsideration and submitted additional medical
evidence.
In a report dated December 11, 2017, Dr. Gregg Vagner, a Board-certified orthopedic
surgeon, conducted an examination and diagnosed bilateral carpal tunnel syndrome.
4

OWCP also received an August 23, 2017 electromyography and nerve conduction velocity
(EMG/NCV) study report, which showed evidence consistent with chronic cervical radiculopathy
involving the right C6 and C7 nerve, moderate, bilateral median neuropathy, and no evidence of
brachial plexopathy.
In a May 24, 2018 letter, Dr. Martens explained that he did not mention appellant’s
previous OWCP claims in his previous reports because those claims were all lumbar claims, but
appellant was requesting that her claim be accepted for a cervical injury. He described the
March 12, 2012 employment incident and reported that when appellant was shoved into a cart and
twisted to the right, it caused a strain on her spine leading to applied stress on her spine.
Dr. Martens also indicated that when appellant was punched in the face, it caused her head to put
stress on the cervical spine due to the jerking fast motion. He opined that the assault on March 12,
2012 caused appellant’s disc protrusion in the C4-7 area, as noted in the diagnostic evidence.
In an August 21, 2018 decision, OWCP denied modification of the September 26, 2017
decision.
On August 21, 2019 appellant requested reconsideration. She reiterated that on March 12,
2012 she sustained an injury and was treated in the emergency room. Appellant noted that she
was diagnosed with a back strain and thigh contusion.
By decision dated November 25, 2019, OWCP denied appellant’s request for
reconsideration of the merits of the claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA5 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7

5

Supra note 1.

6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).

5

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her reconsideration request, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law and did not advance a new and relevant legal argument not
previously considered. She merely reiterated that she sustained a work-related injury on
March 12, 2012. Consequently, appellant was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).11
Furthermore, appellant did not submit any new evidence with her August 21, 2019 request
for reconsideration. Accordingly, she was not entitled to a review of the merits based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).12
Accordingly, the Board finds that appellant has not met any of the requirements
enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied her request for reconsideration without reopening the case for review on the merits.13
On appeal appellant argues that she submitted medical evidence to establish that she
sustained a left thigh injury. As noted, however, the Board lacks jurisdiction over the merits of
the claim.

8
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
9

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

10

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

11

Supra note 9; see K.F., Docket No. 19-1846 (issued November 3, 2020).

12

Supra note 9; P.W., Docket No. 20-0380 (issued November 23, 2020); M.O., Docket No. 19-1677 (issued
February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).
13
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

6

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2021
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Des Moines, IA, Employer
)
_________________________________________ )
M.S., Appellant

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

Docket No. 11-878
Issued: December 15, 2011

Case Submitted on the Record

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

JURISDICTION
On February 22, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) nonmerit decision dated November 18, 2010 denying
his request for reconsideration because it was not timely filed and failed to establish clear
evidence of error. Since more than 180 days have elapsed since the most recent merit
decision of October 27, 2009 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2 and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
1
2

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
This case has previously been before the Board.3 By decision dated October 27, 2009,
the Board affirmed an October 16, 2008 merit decision in which OWCP denied authorization for
a spinal stimulator treatment. The Board found OWCP properly exercised its discretion in
denying appellant’s request for authorization. The Board also affirmed a December 17, 2008
nonmerit decision denying his request for a review of the written record. The facts of the case as
set forth in the Board’s prior decision are incorporated herein by reference. The facts and the
history relevant to the present appeal are hereafter set forth.
On September 20, 2010 appellant noted his OWCP claim number and requested that his
file be reopened and reevaluated for consideration of a spinal cord stimulator. He noted his
course of medical treatment and indicated all supporting medical data had been provided.
Additional medical evidence was also provided. This included: an April 17, 2008 progress
report from Dr. W. David Borchardt, an osteopath specializing in family medicine; a copy of a
July 21, 2008 priority screening appointment; and a November 12, 2009 report from
Dr. Thomas D. Hansen, a Board-certified pain specialist, which noted appellant’s medical
treatment and failure of conservative measures and requested that a spinal cord stimulator be
approved.
In a September 17, 2010 letter, Dr. Borchardt indicated that appellant’s work capacity
level remained the same. He stated that appellant’s posterior laminectomy and fusion had failed
and indicated that other measures such as injections, oral medications and physical therapy had
also failed to alleviate his bilateral lower extremity pain. Dr. Borchardt noted that appellant was
going to appeal the denial of authorization for a spinal cord stimulator.
In an October 15, 2010 letter, OWCP advised appellant that it was not clear if he was
requesting reconsideration of OWCP’s October 16, 2008 decision, which the Board had
affirmed. It advised no action would be taken on appellant’s letter and that, if he wished to
request reconsideration, such a request should be made in writing along with the date of the
decision he wanted reconsidered.
In an undated appeal request form, postmarked November 5, 2010, appellant requested
reconsideration.
In a November 1, 2010 letter, he indicated that he was requesting
reconsideration of the denial of a spinal cord stimulator. Appellant indicated that he provided all
the supporting medical data and course of treatment.
By decision dated November 18, 2010, OWCP denied appellant’s November 5, 2010
reconsideration request on the grounds that it was not timely filed and failed to establish clear
evidence of error in the last merit decision dated October 16, 2008.

3

Docket No. 09-654 (issued October 27, 2009).

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right.4 This section vests OWCP with discretionary authority to determine whether it
will review an award for or against payment of compensation.5 OWCP, through regulations, has
imposed limitations on the exercise of its discretionary authority to determine whether it will
review an award for or against payment of compensation.6 One such limitation is that the
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought.7 In those instances when a request for reconsideration is not timely
filed, OWCP will undertake a limited review to determine whether the application presents clear
evidence of error on the part of OWCP in its most recent merit decision.8
OWCP’s procedures provide that an application for review includes any written
communication from a claimant or representative which requests a hearing, reconsideration or
appeal of a formal decision; no special form is necessary. A claimant who expresses or implies
disagreement with a formal decision, without requesting a specific action, should be advised of
the basis of the decision and reminded to exercise rights of appeal if further action is desired.
OWCP’s procedures also provide that any file in which a complaint about a formal decision is
received should be reviewed informally to assess whether the action leading to the complaint was
correct and OWCP should determine through correspondence with the claimant whether the
inquiry in effect constitutes a request for exercise of appeal rights.9
ANALYSIS
OWCP’s November 18, 2010 decision denied appellant’s request for further review of
the merits of his claim on the grounds that his reconsideration request postmarked November 5,
2010 was untimely and failed to establish clear evidence of error of the October 16, 2008 OWCP
decision denying authorization for spinal stimulator treatment. The Board finds, however, that
appellant’s request for reconsideration was timely filed.
The one-year time limitation for requesting reconsideration begins to run on the date
following the date of the original OWCP decision.10 A right to reconsideration within one year

4

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

5

Under section 8128 of FECA, the 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).
6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a).

8

Id. at § 10.607(b). Regarding the clear evidence of error standard, see Thankamma Mathews, 44 ECAB 765,
770 (1993).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Review Process, Chapter 2.1600.3(b) (October 2005).

10

Supra note 7.

3

also accompanies any subsequent merit decision on the issues.11 This includes merit decisions of
the Board.12 The most recent merit decision in this case was the Board’s October 27, 2009
decision affirming OWCP’s decisions dated October 16 and December 17, 2008. Thus,
appellant had one year from October 27, 2009 in which to timely request reconsideration of the
issue involving the denial of authorization for spinal stimulation treatment.
In a September 20, 2010 letter, appellant requested that his file be reopened and
reevaluated for consideration of a spinal cord stimulator. He provided his claim number as well
as medical evidence. In response to OWCP’s October 15, 2010 request for clarification,
appellant provided an undated appeal request form, postmarked November 5, 2010, in which he
indicated that he was requesting reconsideration. He also submitted a November 1, 2010 letter
noting that he was requesting reconsideration of the denial of a spinal cord stimulator.
The Board has held that a request for reconsideration need not be on any particular form
but must be in writing, identify the decision and the specific issue or issues for which
reconsideration is being requested and be accompanied by relevant and pertinent new evidence
or argument not previously considered.13
The Board finds that appellant’s September 20, 2010 letter constituted a request for
reconsideration. In Gladys Mercado,14 the claimant asked OWCP to help her reopen her case,
provided her case number and submitted additional medical evidence. The Board found that this
letter was a timely request for reconsideration. Here, appellant clearly identified the issue he
wanted reopened for further consideration and submitted supporting evidence.15 Additionally, he
responded to OWCP’s subsequent request for clarification indicating that he wanted
reconsideration. As the contested decision or issue was reasonably determined from appellant’s
request and the request for reconsideration was also accompanied by new medical evidence, the
Board finds that his September 20, 2010 letter constitutes a request for reconsideration.16 As
appellant’s September 20, 2010 letter was filed within one year of the Board’s October 27, 2009
merit decision, it constitutes a timely request for reconsideration.
As appellant timely requested reconsideration, OWCP improperly denied his
reconsideration request by applying the legal standard reserved for cases where reconsideration
is requested after more than one year. The Board will remand the case to OWCP for review of
the new evidence and argument under the proper standard of review for a timely reconsideration

11

Robert F. Stone, 57 ECAB 292 (2005).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(a) (January 2004).

13 13

Vicente P. Taimanglo, 45 ECAB 504 (1984); Darrell Stovall, Docket No. 99-2562 (issued March 14, 2001).
See Federal (FECA) Procedure Manual, supra note 12.
14

52 ECAB 255 (2001).

15

See Jeanette Butler, 47 ECAB 128 (1995) (letter requesting that OWCP reopen the case along with the claim
number and additional evidence found sufficient to constitute a request for reconsideration).
16

Federal (FECA) Procedure Manual, supra note 12.

4

request,17 to undertake any appropriate additional development it deems necessary and to issue
an appropriate decision.
CONCLUSION
The Board finds that appellant’s September 20, 2010 letter constituted a request for
reconsideration which was timely filed within one year of the last merit decision of record, the
Board’s October 27, 2009 decision. The Board will remand the case for review of this evidence
under the proper standard of review for a timely reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: December 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

20 C.F.R. § 10.606(b).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2372
Issued: September 30, 2011

Case Submitted on the Record

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

JURISDICTION
On September 27, 2010 appellant filed a timely appeal from a September 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 26, 2010.
FACTUAL HISTORY
On November 11, 2003 appellant, then a 57-year-old rural carrier, filed an occupational
disease claim alleging that casing and delivering mail caused a left shoulder rotator cuff tear and
impingement. OWCP accepted left shoulder impingement. Appellant stopped work on
1

5 U.S.C. §§ 8101-8193.

March 22, 2004. On March 25, 2004 she underwent arthroscopic subacromial decompression
surgery. Appellant developed an infection in her shoulder and on April 20, 2004 underwent
incision and drainage of the left acromioclavicular joint. OWCP accepted the additional
condition of staphylococcus and osteomyelitis infections of the left shoulder, secondary to the
shoulder surgery on March 25, 2004. Appellant did not return to work and was placed on the
periodic compensation rolls.
In a March 22, 2005 report, Dr. William A. Somers, a Board-certified orthopedic surgeon
and OWCP referral physician, noted the history of employment injury and infection and a 15year history of rheumatoid arthritis. He advised that appellant’s arthritis had been treated with
medication prior to the work-related infection but had to be discontinued at that time.
Dr. Somers stated that the medication could not be restarted and, because of this, her rheumatoid
arthritis became significantly more active, involving the hands, elbows, shoulders, hip, knees and
feet. He diagnosed status post subacromial decompression, left shoulder; status post infection,
left acromioclavicular joint and subacromial space, postoperative and rheumatoid arthritis,
active. Dr. Somers advised that appellant remained totally disabled, stating that, although the
shoulder surgery itself and ensuing complication did not render her totally disabled, the fact that
appellant could no longer keep her rheumatoid arthritis under control rendered her disabled and
that, as long as it was not controllable, she could not return to work.2
Appellant relocated to Alabama in October 2005. In reports dated June 12, 2006 to
August 8, 2007, Dr. Christopher D. Adams, Board-certified in internal medicine and
rheumatology, diagnosed seropositive rheumatoid arthritis, leukopenia and left shoulder
impingement who advised that the injury-related condition remained present due to persistent
inflammation and that appellant could not use her hands for anything meaningful or gainful and
her progressive, destructive arthritis rendered her totally disabled.
In February 2008, OWCP referred appellant to Dr. Alexander N. Doman, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a March 3, 2008 report,
Dr. Doman noted the accepted employment-related condition and his review of the medical
records. He reported that appellant had severe nonwork-related rheumatoid arthritis that affected
multiple joints through her body including the shoulders, hands, elbows and lower extremities
and that she used a cane for ambulation. Dr. Doman diagnosed rheumatoid arthritis that was not
medically connected to her work injury by direct cause, aggravation, precipitation or
acceleration.
He advised that she had reached maximum medical improvement in
December 2005 and that any limitations to work were caused by her underlying rheumatoid
arthritis.
OWCP determined that a conflict in medical evidence arose between the opinions of
Dr. Adams and Dr. Doman regarding whether appellant’s work-related left shoulder condition
had resolved. It referred her to Dr. Paul Goldhagen, Board-certified in orthopedic surgery, for an

2

In reports dated April 6 and May 12, 2006, Dr. Joseph I. Hoffman, Jr., a Board-certified orthopedic surgeon,
who provided a second opinion evaluation for OWCP, advised that a functional capacity evaluation performed
indicated that appellant could perform restricted duty for three to four hours daily. The employing establishment
offered her a modified position that she refused.

2

impartial evaluation. Dr. Goldhagen was provided a set of questions that included whether a
diagnosed condition was medically connected to the work related by direct cause or aggravation.
In a July 2, 2008 report, Dr. Goldhagen noted the history of employment-related injury
and appellant’s complaints regarding her arthritic condition. He provided physical examination
findings and diagnosed subacromial impingement, osteomyelitis and rheumatoid arthritis, which
were medically related to the work injury by either direct cause or aggravation. Dr. Goldhagen
explained that appellant was incapacitated by rheumatoid arthritis and that, although this
condition preexisted her work-related shoulder injury, because she had to be off her arthritis
medications for fear of recurrence of the infection, the work-related condition permanently
aggravated or exacerbated the preexisting arthritic condition. He advised that this caused
permanent impairment because the arthritic condition progressed to the point that it was
seemingly refractory to any medication. Dr. Goldhagen noted that a functional capacity
evaluation was performed the day of his examination and that this indicated that appellant could
perform sedentary duty for four hours a day. In answer to specific OWCP questions, him that
appellant’s disability was due to the rheumatoid arthritis which was permanently aggravated and
exacerbated by her employment injury. Dr. Goldhagen stated that her prognosis was poor.
On September 26, 2008 Dr. Adams advised that appellant had persistent active synovitis
that rendered complete recovery of her rotator cuff injury impossible. He advised that she was
totally disabled.
In March 2009, OWCP determined that a conflict in medical opinion was created
between the opinions of Dr. Adams and Dr. Goldhagen on the question of whether appellant was
capable of work in any capacity. It referred appellant to Dr. C. Thomas Hopkins, Jr., a Boardcertified orthopedic surgeon. In an August 6, 2009 report, Dr. Hopkins noted his review of the
medical record, the history of employment injury, her diagnosis of rheumatoid arthritis, dating
back to 1990 and her complaints of pain in multiple joints. He provided physical examination
findings, limited to the shoulder. Dr. Hopkins stated that, while appellant had multiple
complaints, these were due to the rheumatoid arthritis and unrelated to work. He advised that the
work-related condition could have caused a temporary aggravation of her underlying rheumatoid
arthritis but this would have resolved in January 2006. Dr. Hopkins advised that, while appellant
had permanent restrictions and could work for six hours daily, the restrictions were due to
rheumatoid arthritis and not the work-related condition.
On August 3, 2010 OWCP proposed to terminate appellant’s compensation benefits on
the grounds that the medical evidence, as characterized by Dr. Hopkins’ opinion, established that
her employment-related condition had resolved.3 Appellant disagreed with the proposed
termination, asserting that the progression in her rheumatoid arthritis was due to the fact that she
was prevented from taking medication after the work-related infection and that when she
resumed taking medication, none worked. She stated that she continued to have employmentrelated residuals and significant deformities of the hands, arms, feet and legs.

3

The copy of the August 3, 2010 notice found in the case record is incomplete and refers to Dr. Goldhagen as an
attending physician.

3

By decision dated September 9, 2010, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Hopkins and terminated appellant’s compensation
benefits, effective September 26, 2010.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.6 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.7
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective September 26, 2010. The accepted conditions in this case are
left shoulder impingement and staphylococcus and osteomyelitis infections that occurred
following corrective arthroscopic surgery on the left shoulder. OWCP determined that a conflict
in medical evidence had been created between appellant’s attending rheumatologist, Dr. Adams,
and OWCP’s referral orthopedist, Dr. Doman, regarding whether her employment-related
conditions had resolved. It referred appellant to Dr. Goldhagen, also an orthopedic surgeon, for
an impartial evaluation.
By report dated July 2, 2008, Dr. Goldhagen noted the history of employment-related
injury and appellant’s complaints regarding her arthritic condition. He provided physical
examination findings and diagnosed subacromial impingement, osteomyelitis and rheumatoid
arthritis, all of which were medically related to the work injury by either direct cause or
aggravation. Dr. Goldhagen advised that appellant was incapacitated by rheumatoid arthritis.
He explained that, although this condition preexisted her work-related shoulder injury, because
she had to be off her rheumatoid arthritis medications for fear of recurrence of the infection, the
work-related condition permanently aggravated or exacerbated the preexisting arthritic condition.
Dr. Goldhagen noted that the rheumatoid arthritis was presently refractory to medication. He
advised that a functional capacity evaluation, performed the day of his examination, indicated
4

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

Id.

6

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

7

Manuel Gill, 52 ECAB 282 (2001).

4

that appellant could work sedentary duty for four hours a day. In answer to specific OWCP
questions, Dr. Goldhagen stated that appellant’s disability was due to the rheumatoid arthritis
that was permanently aggravated and exacerbated by her employment injury.
The Board finds Dr. Goldhagen clearly advised that appellant had work-related residuals
because her underlying rheumatoid arthritis was permanently aggravated/exacerbated by the
employment injury and ensuing surgery and infection. Dr. Goldhagen’s opinion is sufficient to
support permanent aggravation of rheumatoid arthritis as employment related. OWCP should
have accepted a permanent aggravation as found by the impartial medical specialist.
Following Dr. Goldhagen’s comprehensive impartial evaluation, OWCP determined that
a new conflict arose between Dr. Adams and Dr. Goldhagen regarding appellant’s work capacity.
It referred her to Dr. Hopkins for an impartial evaluation on this issue. Instead of relying on
Dr. Goldhagen’s opinion regarding appellant’s work-related condition and that her rheumatoid
arthritis was permanently aggravated by the employment injury, OWCP terminated appellant’s
compensation benefits, based on Dr. Hopkins’ opinion that appellant’s work-related condition
had ceased. As noted, it should have accepted permanent aggravation or rheumatoid arthritis
prior to referral to Dr. Hopkins and incorporated this condition into its statement of accepted
facts. In an August 6, 2009 report, Dr. Hopkins found that appellant could work six hours a day.
He, however, also addressed the issues of causal relation pertaining to residuals of the
employment injury, advising that appellant’s left shoulder condition had ceased and that her
arthritis was not employment related. The termination of benefits was based on this opinion.
The Board notes that the issue certified to Dr. Hopkins concerned appellant’s work capacity.
Dr. Hopkins exceeded the basis on which the referral was made. The Board will reverse the
termination of benefits based on Dr. Hopkin’s medical report.
The Board notes that the copy of the August 3, 2010 notice of proposed termination of
record is not complete and incorrectly referred to Dr. Goldhagen as an attending physician rather
than as a physician selected by OWCP to provide an impartial evaluation.8
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective September 26, 2010.

8

Supra note 3.

5

ORDER
IT IS HEREBY ORDERED THAT the September 9, 2010 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: September 30, 2011
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

6