United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Missoula, MT, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-2156
Issued: September 18, 2008

Oral Argument May 6, 2008

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

JURISDICTION
On August 20, 2007 appellant filed a timely appeal from a March 21, 2007 decision of
the Office of Workers’ Compensation Programs that denied his claim and a May 22, 2007
decision that denied his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a stress-related condition in the performance of duty causally related to factors of his
federal employment; and (2) whether the Office properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 22, 2006 appellant, then a 55-year-old supervisor of distribution
operations, filed a Form CA-2, occupational disease claim, alleging that factors of his federal
employment caused severe depressive/anxiety disorder, obsessive compulsive disorder and

exacerbation of multiple sclerosis. He stopped work on May 16, 2006. Appellant alleged that
the following employment factors contributed to his diagnosed conditions: the organizational
structure of the employing establishment; open hostility between the postmaster, Robert
Galtrude, and the manager of mail processing, Richard Palmer; that he was the de facto manager
of distribution operations without benefit of staff or adequate compensation; a May 16, 2006
discussion with Mr. Palmer; that he was improperly denied light duty; that he was tasked to work
“craft” assignments; that he was expected to meet productivity goals and had a very rigid
dispatch schedule with a mandate of having no late dispatches despite reduced run time for
processing machines caused by staffing shortages and too few machines, and reduced processing
of first class mail; and that he was required to remain on duty for over nine hours a day, often
without compensation, for a minimum of three days a week. On October 16, 2006 the
employing establishment controverted the claim.
Appellant submitted medical evidence including a June 5, 2006 report from William
Patenaude, Ph.D., a clinical psychologist, who diagnosed adjustment disorder with anxiety and
depression and advised that appellant could not work. In a September 21, 2006 report,
Dr. Lennard S. Wilson, Board-certified in internal medicine and neurology, diagnosed probable
mild multiple sclerosis. In reports dated January 11 and February 7, 2007, he confirmed the
diagnosis and advised that appellant could not work.
By decision dated March 21, 2007, the Office denied the claim on the grounds finding
that appellant had not established a compensable factor of employment.
Appellant submitted a March 23, 2007 letter in which Mr. Palmer denied his request for
advanced leave and correspondence regarding Freedom of Information Act (FOIA) requests. On
April 24, 2007 he requested reconsideration, arguing that he sustained an injury in the
performance of duty and submitted publications regarding depression and multiple sclerosis. In
a nonmerit decision dated May 22, 2007, the Office denied appellant’s reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
To establish his claim that he sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
1

Leslie C. Moore, 52 ECAB 132 (2000).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

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There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.4 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.5 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.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 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.8
ANALYSIS -- ISSUE 1
In the present case, appellant alleged that he sustained a stress-related condition as a
result of several employment incidents and conditions. The Board must initially review whether
the alleged incidents and conditions of employment are compensable under the terms of the Act.9
Appellant contended that the organizational structure of the employing establishment and
that hostility between Mr. Galtrude and Mr. Palmer contributed to his condition. This does not
relate to the specific requirements of his regularly or specially assigned duties and, therefore,
would not arise in the performance of duty. Such a reaction relates to his dissatisfaction with
perceived poor management, the desire to work in a particular environment and frustration in the
failure to effect desired changes within the work environment relative to the industrial
organization.10 Such frustration from not being permitted to work in a particular environment or
to hold a particular position is not compensable.11

4

See Robert W. Johns, 51 ECAB 137 (1999).

5

Lillian Cutler, supra note 2.

6

Roger Williams, 52 ECAB 468 (2001).

7

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

8

Kim Nguyen, 53 ECAB 127 (2001).

9

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

10

O. Paul Gregg, 46 ECAB 624 (1995).

11

Cyndia R. Harrill, supra note 9.

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Regarding appellant’s denial of a request for light duty and the May 16, 2006 discussion,
the assignment of work is an administrative function of the employer.12 Denials by the
employing establishment of a request for a different job, promotion or transfer are not
compensable factors of employment under the Act as they do not involve appellant’s ability to
perform his or her regular or specially assigned work duties. Although the handling of
disciplinary actions and the assignment of work duties are generally related to employment, they
are administrative functions of the employer and not duties of the employee. Absent error or
abuse, these matters would not be compensable.13 The employing establishment noted that
appellant stopped work after a discussion regarding his work performance. Supervisory
discussions of job performance and reprimands are administrative or personnel matters of the
employing establishment which are covered only by a showing of error or abuse.14 In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.15 In this case appellant did not
submit sufficient evidence to establish that the employing establishment committed error or
abuse with respect to these administrative matters.
Appellant asserted that he was the de facto manager of distribution operations without
benefit of staff or adequate compensation and that he was tasked to work craft assignments. The
assignment of work, although generally related to the employee’s employment, is an
administrative functions of the employer and, absent error or abuse, are not covered under the
Act.16 Other than appellant’s contention regarding these matters, he provided no evidence to
establish that he was performing outside of his position description. In this case there is no
evidence to establish error or abuse regarding this administrative matter regarding the assignment
of appellant’s work duties.17
Appellant noted that he was expected to meet productivity goals and had a very rigid
dispatch schedule even though there were machine and staffing shortages and often had to work
nine hours a day without compensation. The Board has held that emotional reactions to
situations in which an employee is trying to meet his or her position requirements are
compensable under the principles of Cutler.18 In this case, however, appellant did not submit
any evidence such as staffing reports or timesheets to establish that his allegations were factual.19
As with all allegations, overwork must be established on a factual basis to be compensable.20
12

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

13

Kim Nguyen, supra note 8.

14

David C. Lindsey, Jr., 56 ECAB 263 (2005).

15

Cyndia R. Harrill, supra note 9.

16

David C. Lindsey, Jr., supra note 14.

17

Kim Nguyen, supra note 8.

18

Peter D. Butt, Jr., 57 ECAB 117 (2004).

19

Id.

20

Sherry L. McFall, 51 ECAB 436 (2000).

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Appellant, therefore, did not meet his burden of proof to establish that he sustained a stressrelated condition in the performance of duty causally related to factors of his federal
employment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.21 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).22 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (i) shows that the
Office erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.23 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.24
ANALYSIS -- ISSUE 2
With his April 15, 2007 reconsideration request, appellant merely reargued that he
sustained an injury in the performance of duty. He therefore did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by the Office, and was thus not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(2).25
With respect to the third above-noted requirement under section 10.606(b)(2), the merit
issue in this case is whether appellant sustained an injury in the performance of duty. This
requires the submission of evidence to show that he established a compensable factor of
employment. With his reconsideration request, he submitted a March 23, 2007 letter in which
Mr. Palmer denied appellant’s request for advanced leave and correspondence regarding FOIA
requests. The former is in regard to a factor that occurred after the instant claim was filed on
September 22, 2006 and is therefore not relevant, and the Board is not the proper forum to
address FOIA requests as its jurisdiction is limited to a review of final decisions of the Office.26
21

5 U.S.C. § 8128(a).

22

20 C.F.R. § 10.608(a).

23

20 C.F.R. § 10.608(b)(1) and (2).

24

20 C.F.R. § 10.608(b).

25

20 C.F.R. § 10.606(b)(2).

26

See Karen L. Yaeger, 54 ECAB 317 (2003).

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Appellant also submitted a number of publications regarding multiple sclerosis and depression
which are also irrelevant as they do not address the merit issue in this case.27 Evidence that does
not address the particular issue involved does not constitute a basis for reopening a claim.28
Appellant therefore did not submit relevant and pertinent new evidence not previously
considered by the Office, and the Office properly denied his reconsideration request.
CONCLUSION
The Board finds that appellant did not establish that he sustained a stress-related
condition in the performance of his federal duties and that the Office properly refused to reopen
appellant’s case for further consideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 22 and March 21, 2007 be affirmed.
Issued: September 18, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

27

The Board also notes that excerpts from publications have little probative value in resolving medical questions
unless a physician shows the applicability of the general medical principles discussed in the articles to the specific
factual situation at issue in the case. Roger G. Payne, 55 ECAB 535 (2004).
28

Betty A. Butler, 56 ECAB 545 (2005).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0697
Issued: October 14, 2016

Case Submitted on the Record

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

JURISDICTION
On February 26, 2016 appellant, through counsel, timely appealed September 9 and
December 15, 2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits as her accepted bilateral carpal tunnel syndrome and left
1

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

5 U.S.C. § 8101 et seq.

wrist sprain had resolved; and (2) whether appellant’s claimed brachial plexopathy, right ulnar
neuropathy, left shoulder capsulitis, and left radial neuropathy are causally related to her
December 18, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 Appellant, a 61-year-old mail
processing clerk, has an accepted traumatic injury claim (Form CA-1) for left wrist sprain, which
occurred on January 9, 2006 (OWCP File No. xxxxxx698). She also has two accepted
occupational disease claims involving her upper extremities. In January 2009, OWCP accepted
bilateral carpal tunnel syndrome, with a December 18, 2006 date of injury (OWCP File No.
xxxxxx519). In May 2010, OWCP accepted aggravation of bilateral carpal tunnel syndrome,
which occurred on or about August 6, 2008 (OWCP File No. xxxxxx177).4
Appellant last worked on July 26, 2008. Prior to that date, she had been working parttime (four hours), limited-duty, and OWCP paid her four hours of lost wages per day. After she
stopped work entirely, appellant filed a notice of recurrence of disability (Form CA-2a)
commencing July 26, 2008. By decision dated March 21, 2012, OWCP found that she was only
partially disabled, and therefore, paid appellant two hours of lost wages per day effective
July 31, 2008.5
Appellant’s treating physician, Dr. Scott M. Fried, a Board-certified orthopedic surgeon,
provided results on examination on August 1 and September 19, 2013, and on both occasions
reported that appellant remained symptomatic and was unable to return to regular work activities.
When Dr. Fried saw appellant on November 14, 2013 he reported that appellant remained
symptomatic and limited, and was unable to return to her regular work activities. In a March 27,
3

Docket No. 12-1342 (issued June 11, 2013).

4

The three above-noted upper extremity claims have been combined under OWCP File No. xxxxxx519 (Master).

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OWCP based its decision on the opinion of Dr. Robert F. Draper Jr., a Board-certified orthopedic surgeon and
OWCP referral physician, who examined appellant on April 29, 2010 and found her capable of performing six hours
of limited-duty work at the time of her July 2008 work stoppage. When the case was last on appeal, the Board
found that the issue regarding entitlement to wage-loss compensation for temporary total disability was not in
posture for decision. Docket No. 12-1342 (issued June 11, 2013). The Board set aside the March 21, 2012 OWCP
decision and remanded the case for further medical development. The Board specifically instructed OWCP to refer
appellant for another second opinion evaluation regarding the existence and extent of any employment-related
disability on or after July 26, 2008. Dr. Robert A. Smith, a Board-certified orthopedic surgeon and OWCP referral
physician, opined that appellant was unable to perform her regular duties, but could work full time with a two-hour
restriction on repetitive wrist movements, and an eight-hour, 20-pound limit on pushing, pulling, and lifting. OWCP
sought clarification from Dr. Smith regarding whether appellant’s condition had worsened on July 26, 2008 to the
point that she became totally disabled. In a supplemental report, Dr. Smith explained that, based on his recent
examination, he did not consider appellant to be totally disabled or to have experienced a worsening of her accepted
condition as of July 26, 2008. By decision dated September 30, 2013, OWCP denied wage-loss compensation for
temporary total disability. Appellant requested a hearing, and in an October 7, 2014 decision, an OWCP hearing
representative of the Branch of Hearings and Review affirmed OWCP’s September 30, 2013 decision. Appellant
appealed the hearing representative’s October 7, 2014 decision to the Board and, by decision dated May 11, 2015,
the Board remanded the case to OWCP for further development, finding Dr. Smith’s reports insufficient. R.C.,
Docket No. 15-0581 (issued May 11, 2015).

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2014 follow-up report, Dr. Fried noted that OWCP had recently authorized right carpal tunnel
chemoneurolysis. He recommended that appellant remain off work pending the April 22, 2014
procedure. Dr. Fried also indicated that appellant’s most recent work capacity evaluation would
not support even sedentary work, as she was unable to perform simple grasping or lifting. He
further noted that appellant was unable to key more than 48 seconds before stopping due to pain.
Dr. Fried was hopeful that the upcoming chemoneurolysis procedure would improve appellant’s
capabilities.
The April 22, 2014 right carpal tunnel chemoneurolysis revealed, inter alia, perineural
scarring and flexor tenosynovitis, which according to Dr. Fried was consistent with carpal tunnel
and compression neuropathy.
In a July 24, 2014 report, Dr. Fried noted that appellant reported a severe flare-up of the
right carpal tunnel, with shooting pain from the right volar wrist into the palm and up through the
arm, with tingling and numbness in the middle three digits. Additionally, appellant’s thumb was
reportedly sore again. She also complained of burning in the ulnar aspect of the right hand. The
pain was constant and had reached level 10 over the past week. Dr. Fried claimed that appellant
wanted to move forward with surgery. He noted that she was currently out of work due to her
injuries and could not return to regular work activities.
OWCP referred appellant for a second opinion examination to determine the extent of
appellant’s disabilities and her continued work capacity. Dr. Willie E. Thompson, a Boardcertified orthopedic surgeon and OWCP referral physician, examined appellant on
August 15, 2014. He questioned the accepted condition of bilateral carpal tunnel syndrome.
Dr. Thompson found that the medical evidence of record did not continue to support the
diagnosis. He reported that physical examination of both hands was “completely within normal
limits.” Dr. Thompson also indicated that there was no evidence of any injury-related factors of
disability or evidence of any nonindustrial preexisting disability. Additionally, he reported that
there were no periods of total or partial disability. Dr. Thompson found no objective evidence to
document the need to place any physical limitations on appellant. He advised that appellant
could immediately return to work without restrictions. Dr. Thompson also indicated that there
was no need for additional medical treatment or diagnostic testing. In conclusion, he found that
there were “no residuals of any alleged injury to [appellant’s] hands or wrists having occurred on
December 18, 2006.”
In September 2014 OWCP declared a conflict in medical opinion between Dr. Fried and
Dr. Thompson, and referred appellant for an impartial medical evaluation to determine the extent
of appellant’s work capacity and whether he had any residuals of the accepted conditions of left
wrist sprain and bilateral carpal tunnel syndrome.
In his October 23, 2014 report, Dr. Walter W. Dearolf III, a Board-certified orthopedic
surgeon and impartial medical examiner, noted that there were no objective findings on
examination consistent with bilateral carpal tunnel syndrome. He also indicated that appellant’s
January 9, 2006 left wrist sprain had long since resolved. On physical examination, Dr. Dearolf
reported that appellant was in no acute distress. He noted that her neck had full motion and there
was no discomfort in the trapezii or the paraspinal cervical musculature. Additionally, both
shoulders and both elbows had full range of motion and normal strength. Examination of
appellant’s hands revealed normal motion at the wrist, metacarpophalangeal, proximal
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interphalangeal and distal interphalangeal joints, bilaterally. Dr. Dearolf also reported there was
no triggering of her fingers and no atrophy of the thenar or hypothenar eminence on either hand,
appellant’s sensation was noted to be intact to light touch across all fingers and both the radial
and ulnar borders of the forearm, there was good capillary refill, and appellant’s hands were
notably warm.
Physical examination further revealed negative Tinel’s sign at the elbow for the ulnar
nerve and negative Tinel’s at the wrist on the median nerve, bilaterally. Additionally, Phalen’s
sign was negative at the wrist, bilaterally. With respect to grip strength, Dr. Dearolf noted that it
appeared equal, but mildly weak. Lastly, he noted that appellant exhibited normal bilateral upper
extremity strength for biceps, triceps, supination, pronation, and abduction. Dr. Dearolf noted
his agreement with Dr. Thompson that appellant’s bilateral upper extremity examination was
normal.
Dr. Dearolf noted that appellant had not worked for six years and her current physical
examination and electromyogram (EMG) study results showed no evidence of carpal tunnel
syndrome. Although she had multiple abnormalities on her EMG studies, the results were not
indicative of bilateral carpal tunnel syndrome.6 Dr. Dearolf further noted that appellant’s
January 9, 2006 left wrist sprain had totally resolved. Accordingly, he found that all of the
accepted conditions, as noted in the SOAF, had resolved. Dr. Dearolf concluded that appellant
had no residuals from her work injury and accepted conditions.
Regarding appellant’s subjective complaints of numbness and tingling in all five fingers,
Dr. Dearolf noted they were inconsistent with carpal tunnel syndrome. He also noted the
absence of any signs of atrophy or the progression of her disease during appellant’s six-year
hiatus from work. In light of these factors, Dr. Dearolf did not see any need for further medical
treatment for appellant’s accepted condition of bilateral carpal tunnel syndrome. He also
acknowledged that appellant’s subjective complaints and EMG results would limit her ability to
perform repetitive activities involving the upper extremities, but that these limitations were not
based on the accepted conditions. Dr. Dearolf also believed that appellant was capable of
performing the duties of a sales solution team member on a full-time basis. In an accompanying
work capacity evaluation (OWCP-5c), the only reported restriction was a 10-pound lifting
limitation.
On January 21, 2015 OWCP issued a notice of proposed termination of wage-loss
compensation and medical benefits. The proposed action was based on Dr. Dearolf’s
October 23, 2014 report. OWCP afforded appellant 30 days to submit additional evidence and/or
argument in response to its proposed termination of her FECA benefits.
Counsel responded on January 29, 2015. He characterized Dr. Dearolf’s report as
speculative and noted that he had identified specific work restrictions but failed to provide any
rationale for his finding that appellant still required restrictions.

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According to Dr. Dearolf, appellant’s EMG studies documented abnormalities in her brachial plexus, her
posterior interosseous nerve and her ulnar nerves on both sides, but no abnormality in the median nerve. Dr. Dearolf
commented that the abnormalities in the nerves noted on the EMG were not part of appellant’s accepted condition.

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By decision dated March 3, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective March 8, 2015.
Counsel timely requested a hearing, which was scheduled for June 25, 2015.
Following the termination decision, OWCP received additional reports from Dr. Fried
dated March 6 and 12, and June 11, 2015. In his March 6, 2015 report, Dr. Fried chronicled his
treatment of appellant beginning on October 1, 2007. He summarized the results of numerous
follow-up examinations through appellant’s most recent visit on January 15, 2015.7 Dr. Fried
also reviewed the results of two functional capacity evaluations (FCE), the latest having been
conducted on January 29, 2014. Additionally, he discussed various objective studies, including
appellant’s most recent EMG, which was administered on June 26, 2013, and commented on the
results of appellant’s April 22, 2014 ultrasound (chemoneurolysis) procedure. Lastly, Dr. Fried
reviewed Dr. Dearolf’s October 23, 2014 impartial medical evaluation, noted his disagreement
with the vast majority of his findings, but concurred in his finding that there was no preexisting
disability.
Dr. Fried opined that appellant had ongoing bilateral carpal tunnel syndrome and left
wrist sprain, with ongoing dysfunction.
He also indicated that appellant developed
compensatory proximal symptoms. Appellant’s current diagnoses included employment-related
bilateral carpal tunnel syndrome with right upper extremity overuse syndrome, left hand/wrist
contusion, left wrist TFCC tear, left shoulder capsulitis, and left brachial plexopathy/cervical
radiculopathy. Dr. Fried indicated that appellant had evidence of a classic double crush injury
and double level nerve involvement. He found that appellant had ongoing dysfunction and she
was incapable of performing her previous work. Dr. Fried noted limitations with respect to
writing, keying, pushing, pulling, and grasping activities, which he attributed to appellant’s
unresolved bilateral carpal tunnel syndrome.
In his March 12, 2015 report, Dr. Fried diagnosed bilateral upper extremity
sympathetically-mediated pain syndrome, left wrist TFCC tear, left shoulder capsulitis,
employment-related bilateral carpal tunnel syndrome with right upper extremity overuse
syndrome, bilateral ulnar and radial neuropathy, left hand/wrist contusion, and bilateral posterior
occipital neuralgia. Appellant expressed her continued interest in undergoing a repeat neurolysis
for the right carpal tunnel. Dr. Fried advised that appellant remained symptomatic and limited,
and could not return to her regular work activities. He noted that appellant’s limitations were
permanent, and advised her to follow-up in three months.
Dr. Fried reiterated the above-noted diagnoses in his June 11, 2015 follow-up
examination report. He also noted that appellant’s condition was getting progressively worse.
Dr. Fried advised her to remain out of work. Additionally, he commented that the most recent
FCE did not even allow for sedentary work.
In a decision dated September 9, 2015, the hearing representative affirmed OWCP’s
termination of benefits effective March 8, 2015. She found Dr. Dearolf’s October 23, 2014
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When Dr. Fried examined appellant on January 15, 2015, he noted that she remained symptomatic as evidenced
by positive Tinel’s test, Phalen’s test, Roos’ test, compression test, and Hunter’s test. He also noted that appellant
was interested in proceeding with a repeat neurolysis.

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report sufficiently probative to establish that appellant’s accepted conditions had resolved.
While the hearing representative found that OWCP had satisfied its burden to terminate
compensation benefits, she advised OWCP to issue a formal determination regarding whether the
record supported acceptance of any additional medical conditions. At the June 25, 2015 hearing,
counsel argued, among other things, that OWCP had consistently failed to address appellant’s
long-standing request to expand her claim to include other work-related conditions such as left
wrist TFCC, brachial plexopathy, cervical and left shoulder conditions, and a bilateral elbow
condition. In her September 9, 2015 decision, the hearing representative noted that the impartial
medical examiner had cited positive findings showing the existence of conditions other than
carpal tunnel syndrome and, therefore, OWCP should determine whether these conditions were
causally related to appellant’s 2006 and/or 2008 employment injuries.
In response to the hearing representative’s September 9, 2015 directive, OWCP requested
Dr. Dearolf’s opinion on whether appellant’s claim should be expanded to include left shoulder
adhesive capsulitis, brachial plexopathy, right ulnar neuropathy, and left radial neuropathy.
In a November 13, 2015 supplemental report, Dr. Dearolf noted that appellant was
currently asking to be considered for multiple left upper extremity conditions/claims which had
not been present when she stopped working in 2008. He explained that because she had not been
working, he saw no explanation as to how these “new” conditions/claims could be related to a
carpal tunnel claim dating back over seven years.
By decision dated December 15, 2015, OWCP declined to expand appellant’s claim on
the basis that the additional conditions were not shown to be employment related. It based its
determination on the impartial medical examiner’s November 13, 2015 report.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.8 Having determined that an employee has a disability
causally related to his federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.9
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.10 To terminate authorization for medical treatment, OWCP must
establish that the employee no longer has residuals of an employment-related condition that
require further medical treatment.11
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.12 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
8

Curtis Hall, 45 ECAB 316 (1994).

9

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

10

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

11

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

12

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

6

equal weight and rationale.”13 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.14
ANALYSIS -- ISSUE 1
Appellant’s treating physician, Dr. Fried, believed she was medically disabled and could
not return to regular work activities. Dr. Thompson, an OWCP referral physician, found that
there were no residuals of any alleged injury to appellant’s hands or wrists having occurred on
December 18, 2006. Consequently, he advised that she could immediately return to work
without restrictions. Dr. Thompson also indicated there was no need for additional medical
treatment. Because of the above-noted disagreement between appellant’s physician and the
second opinion examiner, OWCP declared a conflict in medical opinion.
Dr. Dearolf, the designated impartial medical examiner, provided results on examination
on October 23, 2014 and indicated there were no objective findings on examination consistent
with carpal tunnel syndrome. He also found that appellant’s 2006 left wrist sprain had long since
resolved. Dr. Dearolf noted that appellant’s bilateral upper extremity examination was normal.
He reviewed various medical records and diagnostic studies in the case record. Dr. Dearolf
noted that appellant had not worked for six years and her current physical examination and EMG
results showed no evidence of carpal tunnel syndrome. Although there were abnormalities on
appellant’s EMG studies, he advised that her electrodiagnostic abnormalities were not indicative
of bilateral carpal tunnel syndrome. Accordingly, Dr. Dearolf found no residuals from her work
injury and accepted conditions. He also found there was no need for further medical treatment
for the accepted conditions. Dr. Dearolf acknowledged that appellant had work limitations,
however, he found those limitations were not related to her accepted conditions.
As noted, when a case is referred to an impartial medical examiner to resolve a conflict,
the resulting medical opinion, if sufficiently well-reasoned and based upon a proper factual
background, must be given special weight.15 The Board finds that OWCP properly deferred to
Dr. Dearolf’s October 23, 2014 opinion. Dr. Dearolf provided a well-reasoned report based on a
proper factual and medical history, he accurately summarized the relevant medical evidence, and
he relied on the statement of accepted facts. He provided results on examination and provided a
thorough review of the relevant medical records. Dr. Dearolf’s report included detailed findings
on physical examination and medical rationale supporting his opinion. As the impartial medical
examiner, his October 23, 2014 opinion is entitled to special weight.16
The record includes additional reports from appellant’s physician, Dr. Fried. His
March 6, 2015 report summarized appellant’s treatment dating back to October 1, 2007, and
included a critique of the impartial medical examiner’s October 23, 2014 opinion. Dr. Fried also
13

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

14

Gary R. Sieber, 46 ECAB 215 (1994).

15

Id.

16

Id.

7

provided follow-up examination reports dated March 12 and June 11, 2015. In all of these
reports, he continued to diagnose bilateral carpal tunnel syndrome and left wrist/hand contusion,
as well as numerous other upper extremity conditions that had not been accepted. Dr. Fried also
continued to find appellant disabled from performing her regular work activities. In his most
recent June 11, 2015 report, Dr. Fried noted that appellant’s latest FCE did not even bare out
sedentary work capabilities.
The primary basis of Dr. Fried’s disagreement with Dr. Dearolf is that appellant’s
physician believes she suffered a work-related double crush injury involving the
cervical/thoracic spine in addition to median nerve entrapment at both wrists. Dr. Fried
acknowledged that appellant’s various EMG study results did not demonstrate bilateral median
nerve entrapment. However, he relied instead on ultrasound studies as evidence of carpal tunnel
syndrome, as well as his own physical examination findings. In contrast, the impartial medical
examiner relied on his October 23, 2014 normal physical examination findings, as well as the
absence of median nerve entrapment on appellant’s EMG studies. Dr. Fried’s disagreement with
the impartial medical examiner’s conclusion does not negate the fact that Dr. Dearolf’s opinion
is supported by the underlying physical findings and appellant’s EMG study results.
Subsequent reports from a physician who was on one side of a medical conflict that has
since been resolved would generally be insufficient to overcome the special weight accorded the
impartial medical examiner’s report and/or insufficient to create a new medical conflict.17 As a
party to the original conflict, Dr. Fried’s March 6 and 12, and June 11, 2015 reports are
insufficient to overcome the special weight properly accorded Dr. Dearolf’s October 23, 2014
opinion, and are similarly insufficient to create a new conflict in medical opinion. Accordingly,
the Board finds that OWCP satisfied its burden of proof in terminating appellant’s wage-loss
compensation and medical benefits with respect to her accepted conditions of left wrist sprain
and bilateral carpal tunnel syndrome.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.18 Causal relationship is a medical question that
generally requires rationalized medical opinion evidence to resolve the issue.19 A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the
implicated employment factor(s) must be based on a complete factual and medical background.20
Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factor(s).21
17

I.J., 59 ECAB 408, 414 (2008).

18

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

19

Robert G. Morris, 48 ECAB 238 (1996).

20

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

21

Id.

8

ANALYSIS -- ISSUE 2
Counsel requested to expand the accepted conditions in her December 18, 2006
occupational disease claim to include left shoulder adhesive capsulitis, brachial plexopathy, right
ulnar neuropathy, and left radial neuropathy. OWCP addressed the issue of expansion in its
December 15, 2015 decision and declined to include any additional upper extremity conditions
based on Dr. Dearolf’s November 13, 2015 supplemental report.
The Board finds that the case is not in posture for decision with respect to whether
appellant’s claimed left shoulder adhesive capsulitis, brachial plexopathy, right ulnar neuropathy,
and left radial neuropathy are causally related to her accepted employment factors.
First, the Board notes that Dr. Dearolf’s opinion is not entitled to deferential treatment as
an impartial medical examiner on this particular issue. The conflict he was assigned to resolve
did not include whether any additional medical conditions should be accepted.
Second, the Board finds that Dr. Dearolf’s November 13, 2015 supplemental report is not
well reasoned on the issue of causal relationship. Dr. Dearolf’s opinion regarding expansion of
the claim is premised on the mistaken belief that appellant’s so-called “new symptom
complexes” postdated her July 2008 work stoppage. He specifically noted that the “multiple
other claims … were not present when [appellant] stopped working in 2008.” Also, Dr. Dearolf
appears to be confused about the basis for acceptance of any additional conditions. He explained
that as appellant had not been working, he saw no reason how these “new” claims were related to
a carpal tunnel claim dating back over seven years. The issue is not whether the additional
diagnosed conditions are related to appellant’s accepted bilateral carpal tunnel syndrome, but
whether those conditions are causally related to her accepted employment factors. Thus, while
appellant’s accepted bilateral carpal tunnel syndrome has since resolved, that fact alone does not
preclude acceptance of any of the additional cervical and/or upper extremity conditions. A
physician’s opinion on causal relationship must be based on a complete factual and medical
background and must be supported by medical rationale.22
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.23 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.24 The Board finds that OWCP’s
reliance on Dr. Dearolf’s November 13, 2015 supplemental report on this issue was misplaced as
he failed to provide a well-reasoned opinion on causal relationship. Accordingly, the case is
remanded for further medical development to be followed by a de novo decision regarding the
requested expansion of appellant’s claim.

22

Id.

23

William J. Cantrell, 34 ECAB 1223 (1983).

24

Richard F. Williams, 55 ECAB 343, 346 (2004).

9

CONCLUSION
OWCP properly terminated appellant’s wage-loss compensation and medical benefits,
effective March 8, 2015, based on the impartial medical examiner’s findings that her accepted
left wrist sprain and bilateral carpal tunnel syndrome had resolved. The Board further finds that
the case is not in posture for decision regarding the acceptance of additional medical conditions.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed. Additionally, the December 15, 2015 decision is
set aside, and the case is remanded for further action consistent with this decision.
Issued: October 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, KEDZIE GRACE
POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 19-1820
Issued: June 12, 2020

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 August 22, 2019 appellant filed a timely appeal from a May 29, 2019 merit decision
and a July 23, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 23, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for an oral hearing
before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b); and
(2) whether OWCP abused its discretion in denying authorization for a compounded medication.
FACTUAL HISTORY
On August 18, 1988 appellant, then a 40-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on the previous day, he sprained his left ankle when he fell
through a gate while being chased by a dog while in the performance of duty. He listed his street
address with a zip code of 60643, but indicated that his mailing address was a Post Office Box
with a zip code of 60680. Appellant provided both addresses on the form. OWCP accepted the
claim for localized primary osteoarthritis of the left ankle and foot, a closed fracture of the medial
malleolus of the left ankle, dermatophytosis of the left foot, left flat foot, and arthropathy of the
left ankle and foot. Appellant stopped work in July 2013.
On April 8, 2019 Dr. Larry Weisman, a podiatrist, certified that he last examined appellant
on April 5, 2019. He requested authorization for a compounded medication identified as
“triamcinolone base, coal tar, salicylic acid.” Dr. Weisman noted that this medication was
necessary to treat appellant’s foot dermatophytosis. He indicated that appellant had tried and failed
to obtain relief through other products, that there were commercially-available U.S. Food and Drug
Administration (FDA) approved drugs appropriate for this diagnosis. Dr. Weisman related that all
the active ingredients of the compounded drug were FDA-approved for this diagnosis. He further
explained that the compound medication was medically necessary for its intended use and would
be used to alleviate appellant’s psoriatic symptoms including scaling, peeling, itchiness, and
redness of skin, and to prevent possible skin lesions from becoming sore and infected.
On April 10, 2019 OWCP referred the matter, along with a statement of accepted facts and
the medical record, to Nakia Shaw, PharmD, and Dr. Nathan Hammel, a Board-certified
orthopedic surgeon and OWCP district medical adviser (DMA), for determination as to whether
the requested compounded medication was medically necessary for appellant’s accepted
condition(s). It noted that OWCP’s procedures require that consideration be given to whether
there is justification for a prescription for a compounded medication and whether its use is
consistent with the medical evidence of record.
In a joint report dated April 24, 2019, Dr. Shaw indicated, and the DMA concurred, that
the medical history did not justify use of the compound of medications, as over-the-counter
methods could be used. The DMA stated that, while topical medications could have demonstrable
clinical utility, the admixture of all the components had not been clinically proven. He explained
that the clinical efficacy of topical medications had been shown using preparations with a uniform
dispersion and particle size, which had been shown to be critical for transdermal absorption. The
DMA noted that, in this case, the requested components were to be custom compounded, which
resulted in far less control over particle size and thus less reliable clinical efficacy. He concluded
that the medical necessity of the compounded cream had not been demonstrated.

2

By development letter dated April 29, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish that the compounded medication was necessary to treat the
effects of his accepted employment-related conditions. It requested that he provide a narrative
explanation from his physician explaining why the compounded medication was medically
necessary, including an explanation as to why a commercially-available drug was insufficient.
OWCP afforded appellant 30 days to submit the necessary evidence. The mailing address utilized
by OWCP listed appellant’s street address as well as his Post Office Box with the zip code
associated only with the Post Office Box. Appellant did not respond within the time allotted.
By decision dated May 29, 2019, OWCP denied authorization for a compounded
medication, as it determined that the evidence of record did not support that this medication was
medically necessary to treat the effects of appellant’s work-related injury. The decision advised
appellant of his appeal rights and included an appeal request form. The decision was mailed to the
same address as the development letter.
By letter dated June 2, 2019, appellant noted that he received OWCP’s April 29, 2019
development letter on that day. He indicated that “with receipt of this letter [he was] appealing
[OWCP’s] decision denying [his] much needed medication.” On June 20, 2019 OWCP requested
that appellant specify which appeal option from the decision of May 29, 2019 he wanted to pursue.
The enclosed appeal request form indicated that if he wished to request a review of the written
record or oral hearing before a representative of OWCP’s Branch of Hearings and Review, the
form must be submitted within 30 calendar days of the decision.
By letter dated June 29, 2019, appellant advised that, prior to June 20, 2019, he had not
received the appeal request form with the April 29, 2019 “decision.” He stated that he had only
received two letters from OWCP, dated April 29 and June 20, 2019; that he had only received the
May 29, 2019 decision as an attachment to the June 20, 2019 letter and not as “a stand-alone
mailing”; and that he had not received appeal rights with the decision dated May 29, 2019. By
appeal request form dated June 29, 2019 and postmarked July 2, 2019, appellant requested an oral
hearing before a representative of OWCP’s Branch of Hearings and Review.
By decision dated July 23, 2019, OWCP’s hearing representative denied appellant’s
request for an oral hearing, as the request was untimely filed. The hearing representative informed
appellant that his case had been considered in relation to the issues involved, and that the issues
could be equally well addressed by requesting reconsideration and submitting evidence not
previously considered establishing that he was “entitled to the compound mixture” due to his
accepted injury of August 17, 1988.
LEGAL PRECEDENT -- ISSUE 1
Section 8124 of FECA, concerning a claimant’s entitlement to a hearing before an OWCP
hearing representative, provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made 30 days after issuance of an OWCP final decision.3

3

5 U.S.C. § 8124(b)(1).

3

A hearing is a review by an OWCP hearing representative of a final adverse decision issued
by an OWCP district office.4 Initially, the claimant can choose between two formats: an oral
hearing or a review of the written record. In addition to the evidence of record, the claimant may
submit new evidence to the hearing representative.5 A request for either an oral hearing or a review
of the written record must be sent, in writing, within 30 days of the date of the decision for which
the hearing is sought.6 A claimant is not entitled to a hearing or a review of the written record if
the request is not made within 30 days of the date of the decision.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
OWCP’s regulations provide that the request for a hearing or review of the written record
must be sent within 30 days of the date of the decision for which a hearing is sought. Appellant,
therefore, had 30 days after issuance of OWCP’s May 29, 2019 decision to timely request an oral
hearing before a representative of OWCP’s Branch of Hearings and Review.
Under the mailbox rule, it is presumed, absent evidence to the contrary, that a notice mailed
to an individual in the ordinary course of business was received by that individual.8 When issuing
its May 29, 2019 decision, OWCP utilized a combination of appellant’s street address as well as
his Post Office Box with the zip code associated only with the Post Office Box. Appellant advised
OWCP by a June 29, 2019 letter that he had only received its April 29, 2019 development letter
and June 20, 2019 letter asking him to clarify which appeal option he was selecting; that he had
received the May 29, 2019 decision as an attachment to OWCP’s June 20, 2019 letter and not as a
“stand-alone mailing”; and that he had not received the appeal rights which OWCP advised him
had accompanied the May 29, 2019 decision. Following his receipt of the appeal rights attached
to the June 20, 2019 OWCP correspondence, in an appeal request form postmarked July 2, 2019,
appellant requested an oral hearing before an OWCP hearing representative, which was more than
30 days following the issuance of the May 29, 2019 OWCP decision.
OWCP did not utilize the address of record that appellant included on his claim form when
he designated his mailing address as a Post Office Box with a zip code of 60680 to mail its May 29,
2019 decision. As OWCP utilized a combination of appellant’s street address and mailing address
when issuing its May 29, 2019 decision, as he consistently maintained that he did not receive it as
a “stand-alone mailing,” and as he has provided evidence that he received the decision and appeal
rights as an attachment, the presumption that appellant received the OWCP May 29, 2019 decision
4

20 C.F.R. § 10.616.

5

Id. at § 10.615.

6

Id. at § 10.616(a); T.C., Docket No. 20-0090 (issued February 13, 2020); M.H., Docket No. 19-1087 (issued
October 17, 2019); B.V., Docket No. 18-1473 (issued April 23, 2019).
7

T.C., id; K.L., Docket No. 19-0480 (issued August 23, 2019).

8

See D.R., Docket No. 18-0232 (issued October 2, 2018); A.C. Clyburn, 47 ECAB 153 (1995).

4

when it issued is rebutted. Accordingly, the Board finds that OWCP improperly denied his request
for an oral hearing as untimely filed. The case will be remanded for a hearing before an OWCP
hearing representative, to be followed by any necessary further development and a de novo
decision.
CONCLUSION
The Board finds that that OWCP improperly denied appellant’s request for an oral hearing
before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).9
ORDER
IT IS HEREBY ORDERED THAT the July 23 and May 29, 2019 decisions of the Office
of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 12, 2020
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

9

In view of the Board’s disposition of Issue 1, adjudication of Issue 2 regarding authorization for a compound
medication is premature. When a claimant is entitled to a hearing before an OWCP hearing representative, the Board
will not address the underlying merit decision. The merits are subject to further adjudication pursuant to the hearing
before an OWCP hearing representative, and therefore are not in posture for review by the Board. See P.H. (R.H.),
Docket No. 17-0978 (issued August 29, 2017); Gary W. Cooper, Docket No. 97-0518 (issued March 5, 1999); see
also 20 C.F.R. § 501.2(c)(2) (“There will be no appeal with respect to any interlocutory matter decided (or not decided)
by OWCP during the pendency of a case”).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Indianapolis, IN, Employer
__________________________________________

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Appearances:
Leah Bachmeyer, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1924
Issued: September 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 23, 2015 appellant, through counsel, filed a timely appeal from a
March 30, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2
As more than 180 days elapsed from January 10, 2014, the date of the most recent OWCP merit
decision, to the filing of the current appeal, pursuant to the Federal Employees’ Compensation

1

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

With her appeal, appellant’s counsel submitted a timely request for oral argument in connection with OWCP’s
March 30, 2015 decision. By order issued on May 15, 2016, the Board granted appellant’s request for oral
argument. Order Granting Request for Oral Argument, Docket No. 15-1924 (issued May 15, 2016). On August 9,
2016 appellant’s counsel requested that the oral hearing be cancelled.

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 27, 2012 appellant, then a 58-year-old accounting technician, filed an
occupational disease claim (Form CA-2) alleging that prolonged sitting aggravated preexisting
accepted conditions that OWCP had developed under claim number xxxxxx345.4 He claimed
that work activities aggravated his lumbar spondylosis and osteoarthritis, cup arthroplasty, right
and left hip arthritis, and disc displacement. Appellant became aware of his condition on
January 23, 2012.
In a February 19, 2012 report, Dr. Eric Aitken, a Board-certified physiatrist, provided a
history of appellant’s treatment. He advised that appellant underwent an arthroplasty in the
1980’s that resulted in a shortened lower extremity and in 2003 he began experiencing symptoms
with no clear inciting event. Dr. Aitken noted that appellant had significant pain with internal
and external rotation of the right hip. He contended that, due to significant limitation in
appellant’s mobility and his inability to sit for prolonged periods, he was unable to work in any
capacity. Dr. Aitken noted that appellant was scheduled for a total hip arthroplasty, but it was
postponed due to his weight.
Appellant submitted a statement summarizing a conference with his orthopedic surgeon
on February 22, 2012 in which the surgeon noted that an x-ray of the right hip, for which
appellant had surgery in July 1984, showed bone growth that restricted the rotation of the right
leg and shortening of that leg. He indicated that he was contemplating further surgery, but the
surgeon was reluctant to operate due to appellant’s weight.
In a March 21, 2012 statement, appellant attributed his condition to prolonged sitting and
continuous pressure on his hip over time. He noted that in 2007 he was moved to a sitting job
due to aggravation of his preexisting conditions. Appellant indicated that he used a power chair
during his tour of duty and took occasional breaks from sitting.
In a decision dated May 10, 2012, OWCP denied appellant’s claim because evidence of
record was insufficient to establish causal relationship between the accepted factors of his federal
employment and his medical conditions.

3

5 U.S.C. § 8101 et seq.

4

Claim number xxxxxx345 is not before the Board on the present appeal. OWCP developed the present matter
under claim number xxxxxx098.

2

In a March 28, 2013 report, Dr. Aitken noted that appellant underwent a total hip
arthroplasty which provided some improvement in pain. He opined that the “settling of [his]
right hip may in part be contributed by his work and may in part have been a result of the
sedentary position that he was maintaining.” Dr. Aitken further opined that his increasing right
hip pain was attributable to his previous work-related injuries explaining that it increased weight
bearing to the right lower extremity which led to degeneration of his previous partial hip surgery.
He concluded that there was a causal relationship between appellant’s previous injury and his
most recent pain and issues related to the right hip.
Appellant requested reconsideration on April 9, 2013.
By decision dated April 17, 2013, OWCP denied modification of its prior decision. It
noted that appellant’s claim under number xxxxxx345 had been accepted for aggravation of his
preexisting back, and left and right hip conditions resulting from factors of his federal
employment. However, after reviewing Dr. Aitken’s report, OWCP concluded that his opinion
was speculative as it remained unclear as to how appellant’s sedentary work duties further
worsened or aggravated his preexisting conditions “that were already worsened by your prior
work duties” under claim number xxxxxx345.
On November 5, 2013 appellant requested reconsideration.
In a September 12, 2013 report, Dr. Aitken advised that he had treated appellant since
2008. He noted that appellant related a history of symptoms since 2003 without any clear
inciting events. Dr. Aitken reported appellant’s work history with the employing establishment
and listed examination findings. He noted that he saw appellant in February 2012 with
complaints of increasing right hip pain that occurred with prolonged sitting at work. X-rays
showed the previous conservative hip arthroplasty with the femoral head resurfacing on the right
with settling of the femoral head and neck within the resurfaced area. Dr. Aitken indicated that
appellant was referred to a surgeon and underwent a right total hip arthroplasty which provided
improvement in his symptoms.5 He opined that appellant’s sedentary position at work resulted
in a settling of the femoral head and the neck within the resurfaced area and necessitated the total
hip arthroplasty at that time.
On November 22, 2013 OWCP prepared a statement of accepted facts (SOAF). It
addressed claims under xxxxxx345, xxxxxx729, and xxxxxx098. OWCP noted that appellant’s
claim under xxxxxx345 was accepted for aggravations of lumbar spondylosis, herniated disc,
right hip arthroplasty, and left hip degenerative joint disease.6 Appellant received a schedule
award for six percent permanent impairment of the left leg and 15 percent permanent impairment
of the right leg due to the accepted conditions under claim number xxxxxx345. OWCP stated
that he had a total right hip replacement in September 2012. It sent the SOAF to Dr. Aitken on
November 22, 2013 and requested that he address how any diagnosed conditions were caused or
aggravated by appellant’s occupational exposures in January 2012. Dr. Aitken did not respond.

5

No operative report appears in the record before the Board.

6

No conditions were accepted under claim number xxxxxx729.

3

By decision dated January 10, 2014, OWCP denied modification of its prior decision.
OWCP found that Dr. Aitken did not explain in his September 12, 2013 report how appellant’s
“sedentary occupational exposure during January 2012 directly caused a new medical condition
or aggravated or caused a material worsening to a preexisting medical condition.” OWCP noted
that the doctor did not respond to its request for a supplemental medical opinion to explain
causation or aggravation.
In a January 7, 2015 letter, received by OWCP on January 12, 2015, appellant, through
counsel, requested reconsideration. Counsel contended that there was no reason to file a new
claim or a recurrence claim as his current condition was a natural progression of the conditions
accepted by OWCP under claim number xxxxxx345. She noted that her firm was retained to
determine if an increased schedule award was warranted under claim number xxxxxx345 due to
appellant’s increased impairment. Counsel concluded that there was no reason to file a
recurrence claim, nor a claim for a new injury under the current file number. She requested that
the current claim be combined with the original claim number, xxxxxx345, and that OWCP
consider appellant’s entitlement to further compensation based on the natural progression of the
employment condition accepted under claim number xxxxxx345.
By decision dated March 30, 2015, OWCP denied appellant’s request for reconsideration
without a merit review.
On appeal before the Board counsel argues that appellant had preexisting displacement of
a lumbar intervertebral disc without myelopathy, lumbosacral spondylosis without myelopathy,
right unspecified arthroplasty of the pelvic region and thigh, and left localized primary
osteoarthritis of the pelvic region and thigh accepted under claim number xxxxxx345. She notes
that his claims examiner denied authorization for a hip replacement and informed him that he
needed to file a recurrence claim. Counsel asserts that both appellant and his doctor believed the
surgery was causally related to his accepted conditions, and that his need for a hip replacement
was not a medical recurrence as there was no breakage in the chain of causation, release from
treatment, spontaneous change in condition, change in a light-duty assignment, or withdrawal of
an accommodation. Counsel contended that “the entire matter” should be “rebundled back to
the original claim number” xxxxxx345.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.7 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).8

7

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
8

See Annette Louise, 54 ECAB 783, 789-90 (2003).

4

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.9 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received by OWCP within one year of the date of that decision.10 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.11
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record does not constitute a basis for
reopening a case.12
ANALYSIS
The most recent decision reviewing the merits of appellant’s case was OWCP’s
January 10, 2014 decision which found that the medical evidence was insufficient to establish
that appellant’s work duties caused or aggravated his claimed conditions. In support of his
reconsideration request, appellant has neither shown that OWCP erroneously applied or
interpreted a specific point of law, nor has he submitted relevant and pertinent new evidence.
Instead, counsel alleged that appellant’s current condition is a natural progression of his
conditions that have been accepted under claim number xxxxxx345, and thus, is not a new
injury. She asserts that, in order to properly determine whether appellant has established that
compensation benefits are warranted based on the natural progression of the employment
condition accepted under claim number xxxxxx345, OWCP should combine claim number
xxxxxx345 with the current claim, number xxxxxx098 to resolve the issue.
The Board finds that appellant’s reconsideration request fails to advance a relevant legal
argument not previously considered by OWCP. In its April 17, 2013 and January 10, 2014 merit
decisions, OWCP had determined that the medical evidence of record, as represented by
Dr. Aitken, did not sufficiently explain how and why appellant’s work duties either caused or
aggravated his accepted conditions. On reconsideration, counsel raises the same argument as
appellant had before he retained counsel. As this argument was previously advanced and
reviewed by OWCP, the Board finds that it is insufficient to warrant reopening the case for
further consideration of the merits. The Board has held that the submission of evidence or
argument which repeats or duplicates evidence or argument already in the case record does not
constitute a basis for reopening a case.13 The Board finds that, as appellant has not met any of
9

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

12

See Eugene F. Butler, 36 ECAB 393, 398 (1984); see also V.R., Docket No. 16-0969 (issued August 8, 2016).

13

Id.

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the criteria for further consideration of the merits of his claim, OWCP properly denied his
request for reconsideration.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s January 12, 2015
reconsideration request under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Should appellant wish to pursue an increased schedule award in claim number xxxxxx345, the Board notes that
he may request a schedule award or increased schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent impairment or increased
impairment.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 11-5
Issued: July 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 29, 2010 appellant filed a timely appeal from a July 7, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed between the most recent OWCP merit
decision dated February 16, 2010 and the filing of this appeal, 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 nonmerit decision and lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2009 appellant, then a 51-year-old supervisor customer service, filed a
traumatic injury claim alleging that on November 24, 2009 he sustained depression and anxiety
as a result of being denied access to the Time and Attendance Collection System (TACS) based
on a false accusation. He also alleged that for the past 15 months he had been falsely accused of
saying and doing things by the employing establishment.
In support of his claim, appellant submitted a December 1, 2009 report from, Suzanne
Johnson, a registered nurse, indicating treatment for adjustment disorder with depressed and
anxious mood.
By letter dated December 15, 2009, OWCP informed appellant that the evidence of
record was insufficient to support his claim and he was advised as to the medical and factual
evidence required to establish his claim. Appellant was given 30 days to provide the requested
information. No information was received from him.
In a December 16, 2009 statement, Ernest H. Proto, manager, customer service,
controverted appellant’s claim. He stated that on October 31, 2009 appellant falsified a part-time
flexible carrier’s clock rings. An investigation was conducted on November 17, 2009 when
appellant admitted to inputting the incorrect clock rings, but provided no reason for doing this.
On November 24, 2009 Mr. Proto informed appellant that his access to TACS was temporarily
suspended pending a resolution of this issue.
By decision dated February 16, 2010, OWCP denied appellant’s claim. It found that he
failed to submit any medical or factual evidence supporting his claim.
On May 19, 2010 appellant requested reconsideration and submitted evidence in support
of his claim.
In a December 10, 2009 certification of disability for the Family and Medical Leave Act,
Ms. Johnson indicated that appellant was disabled for the period November 26 to December 7,
2009 as a result of his depression and anxiety.
In a January 7, 2010 report, Ms. Johnson noted that appellant was seen on November 26,
2009 and treated for adjustment disorder with depression and anxious mood. She indicated that
appellant could return to work on January 19, 2010.
On December 10, 2009 Dr. George Lowry, an attending psychiatrist, diagnosed
adjustment disorder with depression and anxious mood and released appellant to work effective
December 7, 2009.
In a May 21, 2010 report, Dr. Lowry and Ms. Johnson reported appellant had been
receiving treatment for adjustment disorder with depression and anxious mood since
November 26, 2009. Appellant related that on November 24, 2009 he was subjected to a
disciplinary action pending an investigation into actions he was falsely accused of doing and that
he subsequently suffered a panic attack as a result.

2

By decision dated July 7, 2010, OWCP denied reconsideration of the merits.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.6 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.7
ANALYSIS
Appellant’s May 19, 2010 request for reconsideration neither alleged, nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted a December 10, 2009
certification of disability for the Family and Medical Leave Act and reports from Ms. Johnson
and Dr. Lowry. OWCP is not required to consider medical evidence in an emotional condition
case where no work factors have been established.8 The medical evidence submitted by
appellant is not relevant to the underlying issue in this case, which is the factual question of
2

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
3

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
4

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
5

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
6

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

7

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

8

See L.C., 58 ECAB 493 (2007); Richard Yadron, 57 ECAB 207 (2005).

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whether appellant has established a compensable factor of employment. The Board has held that
the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case.9
The Board finds that appellant did not submit arguments or evidence showing that
OWCP erroneously applied or interpreted a specific point of law; advancing a relevant legal
argument not previously considered; or constituting relevant and new pertinent evidence not
considered previously by OWCP. As appellant did not meet any of the necessary regulatory
requirements, the Board finds that his claim is not entitled to further merit review.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2010 is affirmed.
Issued: July 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

9

R.M., 59 ECAB 690 (2008); Patricia G. Aiken, 57 ECAB 441 (2006).

10

See 20 C.F.R. § 10.608(b); Richard Yadron, supra note 8.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, FALCONFIELD
STATION, Mesa, AZ, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1344
Issued: November 7, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On May 14, 2013 appellant, through counsel, filed a timely appeal from an April 12,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration. The Board docketed the appeal as No. 13-1344.
The Board notes that the most recent merit decision issued by an OWCP hearing
representative is a February 15, 2012 decision affirming the denial of her claim for a recurrence
of disability on and after April 7, 2007 due to her accepted employment injuries. In a letter dated
July 30, 2012, appellant’s counsel requested reconsideration of the February 15, 2012 decision
denying her recurrence claim. By letter dated December 17, 2012, ccounsel requested that
OWCP issue a decision on appellant’s reconsideration request. OWCP did not issue a decision
on appellant’s request for reconsideration until April 12, 2013, more than eight months after the
request was made. OWCP’s procedures provide:
“When a reconsideration decision is delayed beyond 90 days, and the delay
jeopardizes the claimant’s right to review of the merits of the case by the Board,
OWCP should conduct a merit review. That is, the basis of the original decision
and any new evidence should be considered and, if there is no basis to change the
original decision, an order denying modification (rather than denying the
application for review) should be prepared. There is no obligation to conduct a

merit review on insufficient evidence if the maximum 180-day time limit for
requesting review by the Board will have expired within the 90-day period
following the OWCP’s receipt of the claimant’s reconsideration request.”1
The Board, having duly considered the matter, finds that OWCP’s delay of more than
eight months in issuing a decision on appellant’s reconsideration request effectively precluded
her from appealing OWCP’s most recent merit decision to the Board.2 Had OWCP acted upon
her request within 90 days, she would have been able to seek review of OWCP’s February 15,
2012 merit decision before the Board.
Accordingly, the case will be remanded to OWCP to issue an appropriate decision on the
merits of the claim in order to preserve appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the April 12, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: November 7, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011).

2

See 20 C.F.R. §§ 501.2(c) and 501.3. For final adverse OWCP decision issued on or after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

2