United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF DEFENSE, HOLLOMAN
AIR FORCE BASE, NM, Employer
__________________________________________

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

Docket No. 16-1600
Issued: March 23, 2017

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 August 3, 2016 appellant, through counsel, filed a timely appeal from a May 4, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
entitlement to medical benefits, effective June 1, 2015, as he had no residuals of his accepted
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.

April 11, 2013 employment injury; and (2) whether appellant has established continuing
employment-related residuals or disability after June 1, 2015.
FACTUAL HISTORY
On April 11, 2013 appellant, then a 42-year-old meat cutter, filed a traumatic injury claim
(Form CA-1) alleging that on that date he experienced pain in his middle back after lifting boxes.
In a report dated May 2, 2013, Dr. Nicole B. Kohnen, Board-certified in family medicine,
found that appellant could work with restrictions on standing over 10 minutes or lifting over 10
pounds. On May 7, 2013 the employing establishment offered appellant a modified position
with sedentary duties within the restrictions set forth by Dr. Kohnen. Appellant returned to work
on May 7, 2013, but stopped work on that date and did not return. He submitted a note which
read: “Sir I [tried]. The pain is [too] much, right now. I can’t do it.”
The employing establishment controverted the claim because appellant had been released
to return to work by Dr. Kohnen and appellant was provided a light-duty position consistent with
Dr. Kohnen’s restrictions. After working the position for 15 minutes, appellant walked off the
job. The employing establishment noted that the light-duty position was still available.
In a decision dated June 5, 2013, OWCP denied appellant’s traumatic injury claim as the
medical evidence was insufficient to show that he sustained a diagnosed condition as a result of
the April 11, 2013 work incident.
Appellant requested a hearing before a hearing representative. On October 30, 2013,
following a preliminary review, an OWCP hearing representative reversed the June 5, 2013
decision as the medical evidence established that the lumbar sprain and thoracic sprain was due
to the lifting incident at work. The hearing representative approved the case for lumbar and
thoracic sprains.
On December 2, 2013 appellant filed claims for wage loss compensation (Form CA-7)
beginning May 7, 2013.
The employing establishment terminated appellant effective
December 13, 2013 for excessive leave.
OWCP formally accepted the conditions of lumbar and thoracic sprains on
January 14, 2014. By letter dated March 5, 2014, OWCP advised appellant that the light-duty
position remained available and if he chose not to accept it, he would not be eligible to receive
wage loss compensation. Appellant did not return to work.3
By decision dated June 5, 2014, OWCP denied his claims for compensation beginning
May 7, 2013. It found that the medical evidence of record established that appellant could
perform the modified employment position offered by the employing establishment in
May 2013. On June 11, 2014 counsel, requested a telephone hearing before an OWCP hearing
representative, which was held on January 14, 2015.
3

OWCP referred appellant to work with a nurse to assist in returning him to work. Although on April 1, 2014
appellant advised OWCP that he would accept the light-duty position, he did not return to work.

2

In a decision dated March 12, 2015, an OWCP hearing representative affirmed the
June 5, 2014 decision. She found that the medical evidence of record confirmed that appellant
was able to perform the offered modified employment beginning May 7, 2013.
While appellant was pursuing his disability claims, OWCP was developing the medical
evidence to determine whether the May 7, 2013 light-duty position was suitable work.
Accordingly, on January 13, 2015, OWCP referred appellant to Dr. James F. Hood, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine appellant’s work
capacity.
Dr. Hood, in a report dated February 26, 2015, reviewed appellant’s history of a 1996
injury to his back in the military and his history of motor vehicle accidents. On examination he
found some tenderness in the mid-thoracic spine with no radiculopathy, muscle spasm, or loss of
strength. Dr. Hood further found a normal straight leg raise. He opined that appellant sustained
a sprain as a result of the work injury and that there were “no objective findings that would
support any continued residuals.” Dr. Hood found that he could resume his usual work without
restrictions and required no need for additional medical treatment.
On March 18, 2015 OWCP requested that appellant’s attending physician, Dr. Llewelyn
Williams, a Board-certified anesthesiologist, review and discuss Dr. Hood’s report.
OWCP advised appellant on May 1, 2015 of its proposed termination of his authorization
for medical benefits and wage-loss compensation as he had no further need for medical treatment
or disability as a result of his accepted employment injury. OWCP afforded appellant 30 days to
submit medical evidence or argument supporting refuting the proposed termination. No
additional evidence was submitted by appellant.
By decision dated June 1, 2015, OWCP terminated appellant’s entitlement to medical
benefits and wage-loss compensation effective that date. It found that the opinion of Dr. Hood
represented the weight of the medical evidence and established that he had no continuing
disability or residuals of his work injury.
On June 8, 2015 appellant, through counsel, requested a telephone hearing.
In a report dated October 7, 2014, received by OWCP on August 31, 2015, Dr. Williams
evaluated appellant for neck and back pain, noting that he sustained an injury as a meat
processor. He diagnosed chronic pain syndrome, facet syndrome, myofascial pain syndrome,
and lumbago. Dr. Williams performed a steroid injection of the left scapula.
Appellant submitted reports from a nurse practitioner dated December 30, 2014 and
February 24, 2015.
In a progress report dated April 14, 2015, Dr. Williams discussed appellant’s history of a
work injury while processing meat and diagnosed chronic pain syndrome, facet syndrome,
myofascial pain syndrome, and lumbago. He performed a trigger point injection of the left
scapula.

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On July 22, 2015 Dr. Williams noted that appellant experienced increased pain after
assisting a friend in moving a television. He diagnosed chronic pain and myofascial pain
syndrome, lumbago, chronic pain syndrome, and drug dependence. Dr. Williams advised that
appellant injured himself in meat processing. Appellant received three injections and continued
to take medication. Dr. Williams noted that appellant had an exacerbation a few days prior and
required a functional capacity evaluation to see if he could resume his usual work.
At the hearing, held on February 19, 2016, appellant described his continued symptoms
and limitations. Counsel maintained that he had submitted medical reports from Dr. Williams
demonstrating that he required additional medical treatment.
By decision dated May 4, 2016, OWCP’s hearing representative affirmed the June 1,
2015 decision. She noted that Dr. Williams had not attributed any condition or disability to
appellant’s April 11, 2013 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays wage-loss compensation or medical benefits, it has
the burden of proof to justify modification or termination of these benefits. It may not terminate
these benefits without establishing that the disability or the need for medical treatment ceased or
that it was no longer related to the employment.4 OWCP’s burden of proof includes the
necessity of furnishing rationalized medical opinion evidence based on a proper factual and
medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained lumbar and thoracic sprains due to an April 11,
2013 employment injury. In a report dated May 2, 2013, Dr. Kohnen determined that appellant
could work with restrictions. The employing establishment offered him a position within the
restrictions set forth by Dr. Kohnen. Appellant returned to modified duty on May 7, 2013, but
stopped work shortly thereafter. In decisions dated June 5, 2014 and March 12, 2015, OWCP
found that he was not entitled to compensation for disability beginning May 7, 2013 as there was
work available within his restrictions.

4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

7

Id.

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On January 13, 2015 OWCP referred appellant to Dr. Hood for a second opinion
examination.
Based on Dr. Hood’s report, OWCP proposed to terminate wage-loss
compensation and authorization for medical treatment. As appellant was not receiving wage loss
compensation, however, the termination was for medical treatment.8 The issue is whether he has
residuals of his employment injury entitling him to further medical treatment.
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits effective June 1, 2015. In a February 26, 2015 report, Dr. Hood noted that appellant had
a preexisting back injury while in the military. He found a negative straight leg raise and no
evidence of radiculopathy, muscle spasm, or reduced strength on examination, but some midthoracic tenderness. Dr. Hood opined that appellant had no objective residuals of his accepted
sprains. He found that appellant required no further medical treatment and could resume work
without restrictions. Dr. Hood provided a comprehensive and well-rationalized opinion, finding
that there were no objective findings of lumbar or thoracic sprain. Moreover, he provided
detailed findings on examination and reached conclusions regarding appellant’s condition which
comported with his findings.9 Consequently, Dr. Hood’s opinion represents the weight of the
evidence and establishes that he had no further need for medical treatment as a result of his
accepted work injury.10
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s medical benefits, the burden
shifted to him to appellant to establish continuing disability or residuals after that date related to
his accepted injury.11 To establish a causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such a causal
relationship.12 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.13 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.14

8

See L.E., Docket No. 09-1855 (issued June 2, 2010); A.C., Docket No. 07-2423 (issued May 15, 2008).

9

See Pamela K. Guesford, supra note 6.

10

See M.B., Docket No. 15-1125 (issued September 14, 2016).

11

Manual Gill, 52 ECAB 282 (2001).

12

Id.

13

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

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

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ANALYSIS – ISSUE 2
The Board finds that the evidence submitted subsequent to OWCP’s termination of
medical benefits is insufficient to show that appellant required further medical treatment or had
any continuing disability for his accepted work injury. On October 7, 2014 Dr. Williams
discussed appellant’s symptoms of pain in his neck and back and noted that he sustained an
injury working in meat processing. He diagnosed chronic pain syndrome, facet syndrome,
myofascial pain syndrome, and lumbago. Dr. Williams, however, did not attribute the diagnosed
conditions to the accepted employment injury or otherwise address causation. Thus, his opinion
in the October 7, 2014 report is of little probative value.15
Dr. Williams, on April 14, 2015, reviewed appellant’s history of a work injury while
processing meat and diagnosed chronic pain syndrome, facet syndrome, myofascial pain
syndrome, and lumbago. He performed a trigger point injection of the left scapula. OWCP has
only accepted lumbar and thoracic strains. Where appellant claims that a condition not accepted
or approved by OWCP was due to his employment injury, he bears the burden of proof to
establish that the condition is causally related to the employment injury through the submission
of rationalized medical evidence.16 A well-rationalized opinion is also particularly warranted
when there is a history of a preexisting condition.17 While Dr. Williams noted appellant’s
history of a work injury, he did not specifically attribute the diagnosed conditions to the work
injury or otherwise address causation. Consequently, the Board finds the opinion in this report is
also of little probative value.18
On July 22, 2015 Dr. Williams noted that appellant had increased pain after assisting a
friend while moving a television. He diagnosed chronic pain and myofascial pain syndrome,
lumbago, chronic pain syndrome, and drug dependence. Dr. Williams indicated that appellant
had sustained a meat processing injury and still took medication. Again, however, OWCP did
not accept the claim for myofascial pain syndrome, lumbago, chronic pain syndrome, or drug
dependence. Further, Dr. Williams did not address the cause of the diagnosed conditions or
provide any rationale for his findings. A physician must provide an opinion on whether the
employment injury described caused or contributed to a diagnosed medical condition and support
that opinion with medical reasoning to demonstrate that the conclusion reached is sound, logical,
and rationale.19 The Board thus finds that appellant has not established disability or residuals of
his employment injury after June 1, 2015, the date of OWCP’s termination decision.

15

See J.L., Docket No. 15-1802 (issued August 15, 2016).

16

See S.E., Docket No. 15-0888 (issued September 14, 2016); JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

17

See T.M., docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

18

See supra note 15.

19

See J.E., Docket No. 14-1132 (issued December 24, 2014); John W. Montoya, 54 ECAB 306 (2003).

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Appellant also provided reports from a nurse practitioner dated December 30, 2014 and
February 24, 2015. However, a nurse or nurse practitioner is not considered a “physician” as
defined by FECA and cannot render a medical opinion.20
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s eligibility
for medical benefits, effective June 1, 2015, as he had no residuals of his accepted April 11, 2013
employment injury. The Board further finds that he has failed to establish continuing
employment-related residuals or disability after June 1, 2015 due to the accepted conditions.
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2017
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

20

5 U.S.C. § 8101(2); see R.E., Docket No. 16-1568 (issued February 9, 2017) (nurse practitioners are not
considered physicians as defined by FECA); M.B., Docket No. 16-1188 (issued January 10, 2017) (nurses are not
considered physicians by section 8101(2) of FECA.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.T., Appellant
and
U.S. POSTAL SERVICE, CURSEEN-MORRIS
PROCESSING & DISTRIBUTION CENTER,
Washington, DC, Employer
__________________________________________

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

Docket No. 20-1318
Issued: April 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 23, 2020 appellant filed a timely appeal from February 4 and April 30, 2020
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision, dated July 22, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this claim.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 30, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP abused its discretion in denying appellant’s request for
a hearing pursuant to 5 U.S.C. § 8124(b); and (2) whether OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
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 October 26, 2012 appellant, then a 60-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on October 17, 2012 he sprained his lower back while transferring
and pulling mail from a dolly in the performance of duty. He stopped work on October 18, 2012.
On November 29, 2012 OWCP accepted the claim for lumbar sprain. It subsequently expanded
acceptance of the claim to include aggravation of lumbar stenosis and displacement of lumbar
intervertebral disc without myelopathy. Appellant received wage-loss compensation on the
supplemental rolls as of December 2, 2012, and on the periodic rolls as of April 7, 2013.
On September 6, 2013 appellant underwent anterior lumbar discectomy at L3-4 and L4-5,
anterior interbody fusion at L3-4 and L4-5, and lateral fusion from L3 to L5. On September 13,
2013 he underwent re-exploration of the laminectomy at the fusion site and a debridement and
primary closure. Appellant returned to work in a full-duty capacity on April 11, 2014.
On January 30, 2014 appellant filed a claim for a schedule award (Form CA-7).
On June 4, 2015 OWCP granted appellant a schedule award for four percent permanent
impairment of the left lower extremity.
Following further development of the claim on May 5, 2016, OWCP granted appellant a
schedule award for an additional two percent permanent impairment of the left lower extremity.
It also found that appellant had zero percent permanent impairment of the right lower extremity.
On October 28, 2016 appellant appealed to the Board. By decision dated July 18, 2017,
the Board affirmed OWCP’s May 5, 2016 schedule award decision.4
Appellant filed Form CA-7 claims for an increased schedule award on June 9 and
August 7, 2018. He submitted additional evidence in support of the claims.
By decision dated November 14, 2018, OWCP denied appellant’s claims for an increased
schedule award.

3

Docket No. 17-1805 (issued March 6, 2018); Docket No. 17-0144 (issued July 18, 2017).

4

Docket No. 17-0144 (issued July 18, 2017).

2

On December 11, 2018 appellant requested reconsideration. On March 11, 2019 OWCP
denied modification of its November 14, 2018 decision.
On March 26, 2019 appellant requested reconsideration of the March 11, 2019 decision.
By decision dated July 22, 2019, OWCP denied modification of the March 11, 2019 decision. It
found that the report from Dr. Arthur Harris, a Board-certified orthopedic surgeon serving as a
district medical adviser, was well rationalized and properly determined that the evidence was
insufficient to establish that appellant had more than six percent permanent impairment of the left
lower extremity.
On September 3, 2019 appellant requested reconsideration.
By decision dated
December 2, 2019, OWCP denied her request for reconsideration of the merits of her claim,
finding that it neither raised substantive legal questions nor included new and relevant evidence.
On January 6, 2020 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated February 4, 2020, OWCP denied appellant’s January 6, 2020 request for
an oral hearing, noting that he had previously requested reconsideration and that OWCP had issued
a decision on December 2, 2019. It explained that, under 5 U.S.C. § 8124(b)(1), he was not
entitled to a hearing on the same issue as a matter of right. OWCP also considered whether to
grant a discretionary hearing and found that the issue could be addressed by requesting
reconsideration and submitting evidence not previously considered.
OWCP subsequently received a November 21, 2019 progress note from Dr. Saied
Jamshidi, a Board-certified neurosurgeon, which related appellant’s findings of radicular pain and
lumbar disc degeneration. Dr. Jamshidi also noted that he had treated appellant with a steroid
injection on November 21, 2019.
On February 18, 2020 appellant again requested reconsideration. He argued that Dr. Harris
never examined him and always found different reasons for denying an additional schedule award
every time he reviewed the medical record.
By decision dated April 30, 2020, OWCP denied appellant’s request for reconsideration,
pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
A claimant dissatisfied with an OWCP decision shall be afforded an opportunity for either
an oral hearing or a review of the written record.5 Section 8124(b) of FECA, concerning a
claimant’s entitlement to a hearing, states that: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of issuance of the decision, to a hearing on his or her claim

5

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

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before a representative of the Secretary.”6 OWCP regulations further explain that the claimant
must have not previously submitted a reconsideration request (whether or not it was granted) on
the same decision.7 Although a claimant who has previously sought reconsideration is not, as a
matter of right, entitled to a hearing or review of the written record, the Branch of Hearings and
Review may exercise its discretion to either grant or deny a hearing following reconsideration.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion in denying appellant’s January 23,
2020 request for an oral hearing before an OWCP hearing representative.
OWCP denied appellant’s claim for an increased schedule award by decision dated
July 22, 2019. On September 3, 2019 appellant requested reconsideration of the July 22, 2019
OWCP decision. In its December 2, 2019 decision, OWCP denied merit review. Appellant then
requested an oral hearing before OWCP’s Branch of Hearings and Review on January 6, 2020. As
appellant had previously requested reconsideration of OWCP’s July 22, 2019 merit decision under
section 8128 of FECA, he was not entitled to an oral hearing as a matter of right under section
8124(b)(1).9 OWCP properly exercised its discretion and determined that the issue in the case
could be resolved equally well through a request for reconsideration and the submission of new
evidence.10 Therefore, the Board finds that OWCP, in its February 4, 2020 decision, did not abuse
its discretion in denying appellant’s January 6, 2020 request for an oral hearing.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA 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.11 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.12 A request for
reconsideration must be received by OWCP within one year of the date of OWCP’s decision for
6

5 U.S.C. § 8124(b)(1).

7

Id.

8
See J.C., Docket No. 19-1293 (issued December 16, 2019); T.M., Docket No. 18-1418 (issued February 7, 2019);
M.W., Docket No. 16-1560 (issued May 8, 2017); D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006).
9

20 C.F.R. §10.616(a); J.H., Docket No. 17-1796 (issued February 6, 2018).

10

Id.

11
5 U.S.C. § 8128(a); see P.M., Docket No. 20-0780 (issued November 24, 2020); 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).
12
20 C.F.R. § 10.606(b)(3); B.S., Docket No. 20-0927 (issued January 29, 2021); see J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 091517 (issued March 3, 2010).

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which review is sought.13 If it chooses to grant reconsideration, it reopens and reviews the case
on its merits.14 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.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
In his February 18, 2020 request for reconsideration, appellant argued that OWCP had
improperly denied his requests for an additional schedule award based upon the reports from
DMA Harris as he had never examined him and Dr. Harris had found different reasons for denying
an additional schedule award every time he reviewed the record. The issue in the present claim is
whether appellant was entitled to an increased schedule award. While appellant disagrees with the
DMA’s findings, his argument does not address the medical evidence of record and establish a
legal basis for an additional schedule award. Evidence that does not address the particular issue
involved does not constitute a basis for reopening a case.16 The Board finds that appellant’s
reconsideration request did not advance a new legal argument not previously considered nor show
that OWCP erroneously applied or interpreted a specific point of law. Thus, appellant is not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).17
As to the third above-noted requirement under section 10.606(b)(3), appellant did not
submit any relevant or pertinent new evidence in support of his request for an increased schedule
award. OWCP received a November 21, 2019 progress note from Dr. Jamshidi, who assessed
radicular pain and lumbar disc degeneration, and noted that appellant had been provided a steroid
injection. However, Dr. Jamshidi did not address the issue at hand, that being whether appellant
was entitled to an increased schedule award. As appellant did not provide relevant and pertinent

13

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.
14

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

15

Id. at § 10.608(b); see C.L., Docket No. 20-0385 (issued August 5, 2020; E.R., Docket No. 09-1655 (issued
March 18, 2010).
16

See M.S., Docket No. 19-1090 & 20-0408 (issued April 20, 2020); R.C., Docket No. 17-1294 (issued
December 20, 2018).
17

G.Q., Docket No. 18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

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new evidence, he is not entitled to a merit review based on the third requirement under section
10.606(b)(3).18
The Board, accordingly, finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.19
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing. The
Board also finds that OWCP properly denied appellant’s request for reconsideration of the merits
of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 4 and April 30, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

20 C.F.R. § 10.606(b)(3)(iii).

19

See L.A., Docket No. 18-1226 (issued December 28, 2018) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application
for reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 13-560
Issued: May 10, 2013

Case Submitted on the Record

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

JURISDICTION
On January 15, 2013 appellant filed a timely appeal from a January 2, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), finding that she received
an overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $281.73 from
November 15 to 17, 2012 because she returned to work but continued to receive compensation
for disability; and (2) whether OWCP properly found that she was at fault in creating the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 11, 2010 appellant, then a 62-year-old medical records technician, filed an
occupational disease claim alleging pain, numbness and tingling from her hands to her shoulders
bilaterally. OWCP accepted the claim for right carpal tunnel syndrome.2 On August 13, 2012
appellant underwent a right carpal tunnel release. OWCP paid her compensation for temporary
total disability beginning that date.
On November 14, 2012 the employing establishment offered appellant a light-duty
position. It noted that the job would begin the following day, November 15, 2012.
In a letter dated November 19, 2012, appellant related that her physician advised that she
should not return to work until January 4, 2013. On November 14, 2012 her supervisor
telephoned and instructed her to report for work the following morning. Appellant requested
sick leave for November 15 and 16, 2012 but the request was denied. She was found absent
without leave (AWOL).
On November 19, 2012 the employing establishment advised OWCP that appellant had
returned to work effective November 15, 2012.
On November 26, 2012 OWCP notified appellant of its preliminary determination that
she received an overpayment of compensation in the amount of $281.73 because she returned to
work on November 15, 2012 but received compensation for total disability until
November 17, 2012. It further advised her of its preliminary determination that she was at fault
in the creation of the overpayment. OWCP requested that appellant complete the enclosed
overpayment recovery questionnaire and submit supporting financial documents. Additionally, it
notified her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence or a prerecoupment hearing.
By decision dated January 2, 2013, OWCP found that appellant received a $281.73
overpayment of compensation because she returned to work on November 15, 2012 but received
compensation for total disability from November 15 to 17, 2012. It further determined that she
was at fault in the creation of the overpayment as she accepted a payment she knew or should
have known to be incorrect. OWCP found that appellant should forward a check for $281.73 as
repayment.
On appeal appellant related that her physician kept her off work and that she did not
believe that she had to report for work on November 15, 2012 given the finding of her physician.

2

In decisions dated June 30, 2010 and January 13, 2011, OWCP denied appellant’s claim after finding that the
medical evidence was insufficient to establish causal relationship. On June 8, 2011 it vacated its June 30, 2010
decision and accepted the claim for right carpal tunnel syndrome.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA3 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.5 OWCP’s regulations state in pertinent part: “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.”6
ANALYSIS
The Board finds that the case is not in posture for decision on the issue of whether
appellant received an overpayment of compensation.
OWCP determined that an overpayment of $281.73 existed as she received compensation
for temporary total disability from November 15 to 17, 2012 even though she returned to work
on November 15, 2012. The employing establishment informed OWCP that appellant returned
to work on November 15, 2012; however, she asserted that she did not return to work on
November 15, 2012 as her physician found that she needed additional time off due to her injury.
Moreover, appellant requested leave for November 15 and 16, 2012 but the employing
establishment denied the request and placed her in an AWOL status. The record on appeal does
not establish when she returned to work and whether an overpayment exists for the period
November 15 to 17, 2012. The case will therefore be remanded to OWCP for further
development on fact of overpayment.7
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation.

3

5 U.S.C. § 8101 et seq.

4

Id. at § 8102.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500.

7

In view of the Board’s disposition of fact of overpayment, the issue of whether OWCP properly found that
appellant was at fault in creating the overpayment is moot.

3

ORDER
IT IS HEREBY ORDERED THAT the January 2, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 10, 2013
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, BROOMFIELD POST
OFFICE, Broomfield, CO, Employer
__________________________________________

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

Docket No. 19-1495
Issued: March 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 2, 2019 appellant, through counsel, filed a timely appeal from a May 30, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

The Board notes that following the May 30, 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.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board
has jurisdiction to review this nonmerit decision.4
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
On December 6, 2012 appellant, then a 41-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on December 4, 2012 she fell down concrete steps injuring
both knees, her right wrist and hand, as well as her left arm, shoulder and neck while in the
performance of duty. She stopped work on December 6, 2012. On December 26, 2012 OWCP
accepted appellant’s claim for sprain of the right knee, sprain of the bilateral shoulders and bilateral
wrist sprain. On April 1, 2013 it expanded acceptance of her claim to include right anterior
cruciate ligament tear, and tear of the posterior horn of the right medial meniscus. On June 13,
2013 OWCP expanded acceptance of appellant’s claim to include bilateral trigger finger, bilateral
radial styloid tenosynovitis, and left bucket handle tear of the medial meniscus.
Appellant’s accepted surgical procedures include: a February 28, 2013 left shoulder
arthroscopy, with repair of the labrum and subacromial bursectomy; a June 26, 2013 right trigger
thumb release; a September 26, 2013 right shoulder arthroscopy with superior labrum anterior and
posterior (SLAP) repair and subacromial decompression; a February 3, 2014 left trigger thumb
release; an April 2, 2014 left knee arthroscopy with partial medial meniscectomy, partial lateral
meniscectomy, and medial femoral chondroplasty; an August 12, 2015 right knee arthroscopy with
partial lateral meniscectomy, removal of multiple cartilage loose bodies, and trochlear
chondroplasty; a September 4, 2018 left middle finger surgery for osteomyelitis; and a
September 19, 2018 left shoulder arthroscopic surgery to repair a SLAP tear.
On March 7, 2013 Dr. Robert R. Nystrom, an osteopath, examined appellant due to
shoulder, knee, and neck injuries. In a note dated April 8, 2013, Dr. Michael Hewitt, a Boardcertified orthopedic surgeon, noted appellant’s history of fall on December 4, 2012 and reported
that appellant denied a head or neck injury. On May 3, 2013 appellant underwent electrodiagnostic
studies of the upper extremities which were normal. On June 9, 2014 Dr. Nystrom examined her
due to neck pain as well as her accepted conditions. On July 11, 2014 appellant underwent
electrodiagnostic studies which were negative for cervical radiculopathy. On January 22, 2016
she underwent a cervical spine magnetic resonance imaging (MRI) scan which demonstrated
central C5-6 disc herniation indenting the anterior aspect of the thecal sac and bulging discs at C34 and C4-5. On April 29, 2016 appellant underwent electrodiagnostic studies including upper
extremity nerve conduction velocity (NCV) and electromyogram (EMG) testing which was
normal. On January 23, 2017 she underwent an additional EMG which demonstrated mild right
3

5 U.S.C. § 8101 et seq.

4
The Board notes that counsel did not appeal OWCP’s March 6, 2019 merit decision denying cervical surgery.
Therefore, the Board has not exercised jurisdiction over that decision. 20 C.F.R. § 501.3.

2

median neuropathy at the wrist. This study was negative for cervical radiculopathy or brachial
plexopathy. On August 30, 2017 appellant underwent a cervical MRI scan which demonstrated
cervical spondylosis.
On April 17, 2018 Dr. Timothy R. Kuklo, a Board-certified orthopedic surgeon, examined
appellant due to right C6 radiculopathy. He performed a physical examination and diagnosed
cervical radiculopathy, cervical herniated disc, and spinal stenosis of the lumbar region. Dr. Kuklo
recommended an anterior cervical discectomy and fusion at C5-6. He requested authorization for
this surgery from OWCP on April 20, 2018.
In a development letter dated April 24, 2018, OWCP denied appellant’s request for cervical
surgery and listed her accepted conditions including radiculopathy cervical region. It requested
additional medical evidence supporting that her requested cervical spine surgery was causally
related to her December 4, 2012 employment injury. OWCP afforded appellant 30 days for a
response.
On September 13, 2017 Dr. Kuklo noted that appellant attributed her neck condition to her
accepted December 4, 2012 employment injury. He noted that since December 4, 2012 she had
experienced neck pain. Dr. Kuklo diagnosed cervical herniated disc and cervical radiculopathy.
In a May 9, 2018 report, Dr. Kuklo diagnosed cervical radiculopathy and again
recommended an anterior cervical discectomy and fusion. He found that appellant had failed
conservative measures. On May 9, 2018 Abby E. Leishman, a physician assistant, performed a
preoperative examination.
On June 4, 2018 OWCP referred appellant, an April 25, 2013 statement of accepted facts
(SOAF), and a list of questions for a second opinion evaluation to Dr. Douglas Porter, an
orthopedic surgeon. In his June 20, 2018 report, Dr. Porter reviewed the SOAF and appellant’s
medical treatment. He performed a physical examination and noted that during the interview she
was able to move her neck more than what she had demonstrated with active range of motion
testing. Dr. Porter found no evidence of cervical myelopathy and normal motor strength. He
diagnosed preexisting multilevel cervical spondylosis with disc herniation at C5-6. Dr. Porter
opined that there was no objective evidence of precipitation, acceleration, or aggravation of her
cervical spine due to appellant’s December 4, 2012 employment injury. He further found that she
had significant nonemployment-related cervical spine conditions, and that while she might elect
to proceed with cervical spine surgery, it was not a work-related injury. Dr. Porter noted that
appellant’s cervical spine MRI scan demonstrated findings most consistent with a degenerative
process and not acute trauma.
In a letter dated June 28, 2018, OWCP informed appellant that her requested cervical spine
surgery was not authorized. It requested additional medical evidence in support of her requested
medical treatment. OWCP indicated that appellant’s claim had been accepted for radiculopathy,
cervical region.
On July 26, 2018 Dr. Nystrom disagreed with Dr. Porter and opined that appellant’s
cervical condition was related to her accepted employment injury. He found that it was very easy
to see how an injury involving bilateral shoulder dislocations would cause some cervical injury as

3

well. Dr. Nystrom also noted that appellant’s neck pain was not a new complaint, as she had
reported this for several years.
In an August 1, 2018 report, Dr. Kuklo disagreed with Dr. Porter and noted that in his
initial examination of appellant on September 13, 2017 that she reported neck pain occurring since
the December 4, 2012 employment injury. He opined that her complaints of arm pain and
radiculopathy were secondary to her fall.
On August 29, 2019 OWCP informed appellant of a conflict of medical opinion between
Drs. Kuklo and Porter, and referred her, an August 15, 2018 SOAF, which included within the
accepted condition of cervical radiculopathy, and a list of questions to Dr. Jeffrey J. Sabin, a
Board-certified orthopedic surgeon, for an impartial medical examination.
In his September 28, 2018 report, Dr. Sabin noted that appellant reported that her neck
condition with bilateral radiculopathy had been present since the December 4, 2012 employment
injury. He reviewed the SOAF and her medical history. Dr. Sabin noted that appellant had four
EMGs which did not demonstrate cervical radiculopathy, that she had a history of preexisting neck
facet syndrome, and concluded that her neck condition was not related to her accepted employment
injury. He questioned whether she had an active neck condition as a pain generator had not been
identified. Dr. Sabin concluded that strong surgical indications were not present for these reasons.
By decision dated December 11, 2018, OWCP denied appellant’s request for cervical
fusion. On December 28, 2018 appellant requested reconsideration.
On November 26, 2018 Dr. Gregory Reichhardt, a Board-certified physiatrist, examined
appellant due to neck and shoulder pain as well as numbness down both arms. He listed the
mechanism of injury as the work-related fall on December 4, 2012 when she tripped and fell down
five feet from a porch while working. Dr. Reichhardt noted that appellant’s EMG’s were normal
and that the etiology of her pain was unclear.
In notes dated January 9, 2019, Deana Halat, a nurse practitioner, recommended that
Dr. Kuklo’s request for cervical surgery should be granted. On January 15, 2019 Ms. Leishman,
diagnosed right C6 radiculopathy with complete numbness of the thumb and index finger.
On January 15, 2019 Dr. Kuklo opined that appellant had experienced cervical
radiculopathy since her December 4, 2012 employment injury. He noted that Ms. Halat supported
his request for cervical surgery.
By decision dated March 6, 2019, OWCP denied modification of the December 11, 2018
decision.5
On March 11, 2019 Dr. Reichhardt noted that appellant underwent a cervical fusion on
February 4, 2019 and that she felt that her neck pain was improved. He further noted that she
disagreed with the denial of her request for cervical surgery by OWCP. Dr. Reichhardt attributed

5

Supra note 4.

4

appellant’s neck and bilateral upper extremity pain and numbness to her December 4, 2012
employment injury.
On April 15, 2019 appellant, through counsel, requested reconsideration of the March 6,
2019 decision denying her requested cervical surgery. He resubmitted Dr. Kuklo’s May 9 and
August 1, 2018 reports and his January 15, 2019 note.
On February 4, 2019 appellant underwent C5-6 anterior cervical discectomy and bilateral
foraminotomy, as well as anterior cervical fusion. On March 22, 2019 Dr. Kuklo disagreed with
Dr. Sabin’s September 18, 2018 report and referenced his January 15, 2019 note. On February 21,
March 22, and April 12, 2019 Ms. Halat noted that appellant had undergone a cervical anterior
fusion.6
By decision dated May 30, 2019, OWCP denied appellant’s request for reconsideration
relative to the denial of her request for cervical surgery. It reviewed the medical evidence
submitted and found it was cumulative and substantially similar to evidence previously considered
on the issue of whether surgery was medically necessary due to her accepted employment injury
of December 4, 2012.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.7
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence 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.8 If OWCP determines
that at least one of these requirements is met, 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

6

By decision dated May 1, 2019, OWCP rescinded its acceptance of cervical radiculopathy. The rescission issue
is currently on appeal under Docket No. 20-0479.
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3); M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-1569 (issued
December 9, 2008).
9

Id. at § 10.608(a); C.K., Docket No. 18-1019 (issued October 24, 2018).

10
Id. at § 10.608(b); L.S., Docket No. 18-0858 (issued November 19, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

To be timely, a request for reconsideration must be received by OWCP within one year of
the date of OWCP’s decision for which review is sought.11 Timeliness is determined by the
document “received date” as recorded in the Integrated Federal Employees’ Compensation System
(IFECS).12 If the last day of the one-year time period is a Saturday, Sunday, or a legal holiday,
OWCP will still consider a request to be timely filed if it is received on the next business day.13
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record14 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.15
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).
Appellant filed a timely request for reconsideration on April 15, 2019,16 but she did not
establish that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. Accordingly, the Board finds that
she is not entitled to a review of the merits based on either the first or second requirement under
20 C.F.R. § 10.606(b)(3).17
In support of her request for reconsideration, appellant submitted Dr. Reichhardt’s
March 11, 2019 note which reported that she underwent a cervical fusion on February 4, 2019 and
that she felt that her neck pain was improved. He further noted that she disagreed with the denial
of her request for cervical surgery by OWCP. Dr. Reichhardt attributed appellant’s neck and
bilateral upper extremity pain and numbness to her December 4, 2012 fall. This report is not
relevant to the central issue in this case, whether cervical surgery was causally related to
appellant’s accepted employment injury and medically warranted.18 While Dr. Reichhardt

11

20 C.F.R. § 10.607(a).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

13

Id.; M.A., Docket No. 13-1783 (issued January 2, 2014).

14

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

15

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

16

Supra note 13; J.F., Docket No. 16-1233 (issued November 23, 2016).

17

Supra note 10.

18

5 U.S.C. § 8103. OWCP shall furnish the services which it considers likely to cure, give relief, or reduce the
degree or the period of disability, or aid in lessening the amount of monthly compensation. However, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of an employmentrelated injury or condition. The employee must also establish that the procedure is medically warranted. T.A., Docket
No. 19-1030 (issued November 22, 2019); D.K., 59 ECAB 141 (2007); R.C., 58 ECAB 238 (2006).

6

addressed appellant’s opinions regarding her cervical surgery,19 he did not offer his own medical
opinion on the necessity of this operation.
Appellant provided her February 4, 2019 operative report. This report does not offer any
medical opinion evidence and is not relevant to the issue of whether the surgery was medically
warranted and causally related to her accepted December 4, 2012 employment injury.20 Appellant
also provided a series of notes from Ms. Halat, a nurse practitioner. However, the Board has held
that treatment notes signed by a nurse practitioner are not considered medical evidence as a nurse
practitioner is not a physician under FECA.21 The nurse practitioner’s opinion therefore is not
relevant evidence and does not constitute a basis for reopening the case on the merits of the claim22
as it is of no probative value in establishing medical necessity of a requested procedure.23
On March 22, 2019 Dr. Kuklo noted his disagreement with Dr. Sabin’s September 18,
2018 report. He referenced his January 15, 2019 note previously considered by OWCP. Appellant
also provided Dr. Kuklo’s May 9 and August 1, 2018 reports and his January 15, 2019 note which
had also previously been submitted and considered by OWCP. The submission of this evidence
does not require reopening of appellant’s case for review of the merits as 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.24
Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R.
§ 10.606(b)(3).25
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). OWCP properly denied merit review.26

19

The belief of a claimant that a condition was caused or aggravated by the employment is not sufficient to establish
causal relation. C.H., Docket No. 19-0409 (issued August 5, 2019); Lourdes Harris, 45 ECAB 545, 547 (1994).
20

Supra note 18.

21

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
22

Supra note 16.

23

T.A., supra note 18.

24

S.W., Docket No. 19-1498 (issued January 9, 2020).

25

Id.

26

Supra notes 9 through 11.

7

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 May 30, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 3, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________

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

Docket No. 09-1212
Issued: December 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2009 appellant timely appealed the February 26, 2009 merit decision of the
Office of Workers’ Compensation Programs which denied her claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant is entitled to compensation for temporary total disability
from May 2 through June 15, 2008 and intermittent wage loss from June 27 through
July 16, 2008.
FACTUAL HISTORY
Appellant, a 41-year-old letter carrier, injured her right hand on March 11, 2008 when
she slipped on a patch of ice while delivering mail. The Office accepted her claim for contusion
of the right hand, second through fourth metacarpal. Appellant stopped work on March 17, 2008

and received continuation of pay through May 1, 2008. She was released to return to work in a
limited-duty capacity effective June 16, 2008.1
Appellant filed claims (Form CA-7) for temporary total disability for the period May 2
through June 15, 2008. She also claimed approximately 12.5 hours of intermittent wage loss for
attending therapy sessions on June 27 and July 2, 9, 11 and 16, 2008.
The relevant medical evidence included emergency department treatment records for
March 13, 2008. Appellant received a diagnosis of strained thumb joint and was discharged that
same day with instructions that she should be able to return to work the following day without
restrictions. She also submitted return to work/school forms dated March 19 and 25, 2008. The
first form indicated that appellant was unable to work from March 17 through 22, 2008, but was
able to return to work on March 23, 2008 without any noted restrictions. The March 25, 2008
form indicated that appellant was unable to work from March 24 through 31, 2008. Neither form
indicated a specific diagnosis.2
The Office also received treatment notes from a Dr. Cheniche Balakrishnan. On
April 16, 2008 Dr. Balakrishnan diagnosed right hand contusion, second through fourth
metacarpal and metacarpophalangeal (MP) joints. The reported history was that appellant fell on
March 11, 2003. As to any period of disability and a projected return to work date,
Dr. Balakrishnan wrote, “To be determined.” He advised appellant not to use her right hand and
recommended that she begin outpatient occupational therapy two to three times per week.
Appellant was to return to Dr. Balakrishnan for reassessment in four weeks. She returned on
May 14, 2008 and Dr. Balakrishnan again diagnosed right hand contusion. The remainder of the
report was consistent with his April 16, 2008 report. Appellant next saw Dr. Balakrishnan on
June 11, 2008 and he diagnosed right hand injury and right thumb tendinitis. Dr. Balakrishnan
noted that appellant was unable to work until June 16, 2008, at which point she could engage in
“light use” of the right hand with no repetitive use and no lifting greater than five pounds. He
also indicated that appellant was to continue with outpatient occupational therapy twice a week
and return for reevaluation in six weeks. Dr. Balakrishnan also provided a June 11, 2008 duty
status report (Form CA-17).
As to the claim for intermittent wage loss to attend occupational therapy, appellant did
not provide documentation for therapy sessions she reportedly attended on June 27 and July 2, 9,
11 and 16, 2008.
On July 14, 2008 the Office advised appellant that it needed a copy of the physical
therapy notes and/or medical evidence for the days she was claiming intermittent wage loss
between June 27 and July 11, 2008.3

1

Appellant accepted a limited-duty job offer on June 23, 2008.

2

The signature of the particular caregiver is illegible.

3

The Office sent appellant a similar letter on July 28, 2008 regarding the 2.55 hours of lost wages claimed for
July 16, 2008.

2

In a July 15, 2008 letter, the Office advised appellant that the medical evidence was
insufficient to establish her claim for temporary total disability for the period May 2 through
June 15, 2008. Appellant was advised to submit a comprehensive narrative report from her
treating physician explaining how the accepted condition was directly related to her claimed
work absence.
In a letter dated July 18, 2008, Elaine South, an occupational therapist, stated that
appellant attended outpatient occupational therapy on a twice weekly basis from May 2 through
July 16, 2008. She further noted that appellant returned to work on June 23, 2008 and continued
to attend occupational therapy through July 16, 2008.
In a decision dated August 18, 2008, the Office denied appellant’s claim for temporary
total disability for the period May 2 through June 15, 2008. Appellant was also denied 10.03
hours of intermittent wage loss for medical treatment she claimed to have received between
June 27 and July 11, 2008.
On September 4, 2008 the Office issued another decision denying 2.55 hours of
intermittent wage loss for therapy appellant reportedly received on July 16, 2008.
Appellant requested hearings with respect to both the August 18 and September 4, 2008
decisions. A combined hearing was held on December 10, 2008.
By decision dated February 26, 2009, the hearing representative affirmed the Office’s
August 18 and September 4, 2008 decisions.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of her claim, including
that the medical condition for which compensation is claimed is causally related to the
employment injury.4 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.5 The evidence submitted must be reliable,
probative and substantial.6
An injured employee is entitled to compensation for lost wages incurred while obtaining
authorized medical services.7 This includes the actual time spent obtaining the medical services
and “a reasonable time spent traveling to and from the [medical] provider’s location.”8 As a
matter of practice, the Office generally limits the amount of compensation to four hours with

4

20 C.F.R. § 10.115(e) (2008); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

5

20 C.F.R. § 10.115(f).

6

Id. at § 10.115.

7

5 U.S.C. § 8103(a) (2006); see Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(December 1995).

3

respect to routine medical appointments.9 However, longer periods of time may be allowed
when required by the nature of the medical procedure and/or the need to travel a substantial
distance to obtain the medical care.10
ANALYSIS
Although Dr. Balakrishnan’s treatment records cover the claimed period of temporary
total disability from May 2 through June 15, 2008, these records do not adequately explain how
the right hand contusion appellant sustained on March 11, 2008 precluded her from performing
any and all work during this six-week period. Furthermore, he did not explain why three months
of occupational therapy two to three times per week was necessary to treat an employmentrelated hand contusion. Accordingly, the Board finds that Dr. Balakrishnan’s April 16, May 14
and June 11, 2008 treatment records are insufficient to establish appellant’s claimed temporary
total disability for the period May 2 through June 15, 2008.
The Board also notes that the Office has not authorized occupational therapy for the
treatment of appellant’s accepted condition and Dr. Balakrishnan’s above-noted reports do not
support such authorization. Additionally, appellant has not documented her attendance at
therapy on June 27 and July 2, 9 and 11, 2008. Ms. South’s July 18, 2008 letter merely
documents the beginning and end dates of appellant’s therapy; May 2 through July 16, 2008.
She noted that appellant’s last visit was on July 16, 2008, but made no mention of the June 27
and July 2, 9 and 11, 2008 dates claimed. Because this type of treatment has not yet been
authorized and appellant has not adequately documented her attendance on four of the five dates
claimed, the Board finds that the Office properly declined to pay appellant approximately 12.5
hours for occupational therapy visits between June 27 and July 16, 2008.
CONCLUSION
Appellant has not established that she was temporarily totally disabled during the period
May 2 through July 16, 2008. The Board further finds that appellant is not entitled to
intermittent wage loss for attending therapy sessions during the period June 27 through
July 16, 2008.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hayward, CA, Employer
__________________________________________

)
)
)
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)
)
)

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

Docket No. 16-0482
Issued: July 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 19, 2016 appellant filed a timely appeal from a December 11, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $7,096.33 from July 17 through September 19,
2015; and (2) whether it properly found that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver of the recovery.
On appeal appellant contends that OWCP made an error in calculating the amount of
overpayment, because it used an incorrect period upon which to base its calculation. Appellant

1

5 U.S.C. § 8101 et seq.

notes that the corrected period should be August 1 through September 19, 2005, as retirement
payments “officially” began on August 1, 2015.
FACTUAL HISTORY
On March 21, 2012 appellant, then a 61-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging a right ankle injury as a result of walking in the course of his
federal employment. On May 17, 2012 OWCP accepted his claim for temporary aggravation of
degenerative joint disease of the right ankle. On February 13, 2015 it expanded the claim to
include right ankle arthritis, stiffness in the joints of the right ankle and foot, and right ankle
sprain.
By letter dated May 27, 2015, appellant was placed on the periodic rolls for
compensation, effective April 15, 2015. Each 28 days, appellant was paid a gross amount of
$3,421.20 and a net amount of $3,026.28.2 Enclosed with this letter was a Form EN1049, which
stated, “You must report to OWCP any retirement income you receive from any Federal agency.
This is because a person who receives compensation benefits under … FECA is not permitted to
receive benefits under the Civil Service Retirement System (CSRS) or the Federal Employees
Retirement System (FERS).”
The record establishes that appellant retired on July 17, 2015. He noted to OWCP on
September 4, 2015 that he had not yet received a check from the Office of Personnel
Management (OPM), but that they had accepted his retirement. An OWCP representative
advised appellant that he had to elect between OPM and OWCP benefits.
On September 21, 2015 appellant elected to receive OPM benefits with an effective date
of July 17, 2015.
By notice dated October 7, 2015, OWCP advised appellant of its preliminary
determination that an overpayment of compensation in the amount of $7,096.33 occurred from
July 17 through September 19, 2015, as it paid him compensation on the periodic rolls for that
period, yet appellant had elected to receive OPM benefits for that period. It made the
preliminary finding that appellant was at fault in the creation of the overpayment, as he was
aware that he could not receive benefits from OPM and OWCP simultaneously. OWCP afforded
appellant 30 days to submit additional evidence and argument and to request a hearing.
By letter dated October 7, 2015, OWCP notified OPM that appellant had elected to
receive OPM benefits. It noted that OPM was to commence monthly annuity payments effective
July 17, 2015 and requested that OPM reimburse OWCP in the amount of $7,096.33 for benefits
paid during the period July 17 through September 19, 2015.
On November 4, 2015 OPM replied to OWCP’s letter of October 7, 2015. It noted that it
began payments to appellant effective August 1, 2015, even though he separated from federal

2

A review of appellant’s compensation history reveals that his net compensation increased to $3,056.88 effective
June 28, 2015.

2

service on July 17, 2015. OPM requested guidance as to how this gap would impact the amount
of overpayment.
By decision dated December 11, 2015, OWCP finalized appellant’s overpayment of
compensation in the amount of $7,096.33 for the period July 17 through September 19, 2015. It
found that he was at fault in the creation of the overpayment because he was aware he could not
receive OPM and OWCP benefits simultaneously. OWCP directed recovery of the overpaid
amount by withholding $100.00 from his continuing OPM payments effective
December 13, 2015.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 FECA, however, also places limitations on an employee’s right to receive
compensation benefits. Section 8116 provides that, while an employee is receiving benefits, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.4
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement annuity.5 When a claimant is entitled to disability benefits under FECA and
annuity benefits from OPM under either CSRS or FERS, the employee must make an election of
benefits.6 The employee has the right to elect the monetary benefits that is most advantageous.7
The election, once made, is revocable.8 Concurrent wage-loss compensation and OPM benefits
constitute a prohibited dual benefit.9
ANALYSIS -- ISSUE 1
Appellant was placed on the periodic rolls for compensation starting April 15, 2015. His
continuing payment every four weeks was a net amount of $3,056.88. On September 21, 2015
appellant elected to receive OPM benefits and stated that the effective date of this election was
July 17, 2015. OPM informed OWCP by letter dated November 4, 2015 that the effective date
of election was August 1, 2015, because it did not begin payments until that date.

3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (February 1995).

7

Id.

8

20 CFR § 10.421(a).

9

Supra note 4.

3

The evidence reflects that appellant received $7,096.33 in compensation benefits from
July 17 through September 19, 2015. On appeal appellant contested the amount of overpayment
and the period, noting that OPM payments commenced August 1, 2015, not July 17, 2015.
The Board finds that OWCP correctly determined that appellant received an overpayment
of compensation for the period from August 1, 2015 through September 19, 2015. However, the
Board also finds that this case is not in posture for decision on the issue of whether an
overpayment existed for the period from July 17 through August 1, 2015. The letter from OPM
is unclear as to the effective date. As such, the Board thus affirms in part the December 11, 2015
decision as to the fact of overpayment from August 1 through September 19, 2015, but remands
for further review of the alleged overpayment from July 17 through August 1, 2015. As such,
the case shall be remanded to OWCP to clarify what effect OPM’s November 4, 2015 letter
would have on the fact or amount of overpayment for the period from July 17 through
August 1, 2015. After such further development as necessary, OWCP shall issue an appropriate
decision as to fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against
equity and good conscience.10 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.11
On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.12
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.13

10

5 U.S.C. § 8129(b).

11

Gregg B. Manston, 45 ECAB 344, 354 (1994).

12

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

13

Id. at § 10.433(b).

4

ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of this overpayment because he
accepted dual benefits while knowing that he was not permitted to receive both OWCP and OPM
benefits at the same time.
The Board finds that OWCP correctly determined that appellant was at fault in the
creation of the overpayment from August 1 through September 19, 2015. Appellant knew or
should have known that receipt of dual benefits from OPM and OWCP was not permissible,
because the Form EN1049 enclosed with his May 27, 2015 notification of being placed on the
periodic rolls advised him as such. Hence, OWCP properly found appellant at fault in the
creation of the overpayment.
As the Board explained in B.G.,14 appellant is at fault for accepting OPM annuity benefits
for a period already covered by FECA disability payments. OWCP notified him on May 27,
2015 that a person who receives compensation benefits under FECA is not permitted to receive
retirement benefits. It advised appellant again telephonically on September 4, 2015 that annuity
benefits paid by OPM and benefits for wage loss paid by OWCP were not payable for the same
period of time.
Notwithstanding this notice, appellant made an election on September 21, 2015 to receive
OPM retirement benefits retroactive to July 17, 2015. Because he had already received FECA
disability benefits from at least August 1, 2015, his election to receive OPM annuity benefits
beginning July 17, 2015 was, in effect, an election to receive a prohibited dual benefit under 5
USC § 8116. Appellant’s receipt of the retroactive OPM annuity benefits created an
overpayment of compensation and, at the time he accepted those OPM benefits, he knew or
should have known, based on past and recent notices, that he was not permitted to receive both
FECA disability benefits and OPM annuity benefits for the same period. He is therefore at fault
in creating the overpayment. The Board will affirm OWCP’s finding of fault for the period
appellant received dual benefits.15
The Board further finds that the issue of appellant’s fault in the creation of the alleged
overpayment from July 17 through August 1, 2015 is not in posture for decision. After such
further development as necessary, OWCP will issue a de novo decision on this issue.
The Board notes that it does not have jurisdiction to review OWCP’s determination that
the overpayment would be recovered by deducting $100.00 from appellant’s continuing OPM
retirement benefits. The Board’s jurisdiction is limited to reviewing those cases where OWCP
seeks recovery from continuing compensation under FECA.16 Appellant is not in receipt of
continuing compensation under FECA.
14

Docket No. 14-2002 (issued August 13, 2015).

15

On remand of the case OWCP shall determine whether the period of overpayment due to receipt of dual
benefits began on July 17, 2015 or August 1, 2015.
16

Judith A. Cariddo, 55 ECAB 348, 353 (2004).

5

CONCLUSION
The Board finds that OWCP has established fact of overpayment for the period from
August 1 through September 19, 2015. The Board further finds that this case is not in posture for
decision on the issue of fact of overpayment for the period from July 17 through August 1, 2015.
The Board further finds that OWCP properly determined that appellant was at fault in the
creation of the overpayment from August 1 through September 19, 2015, but that this case is not
in posture for decision on the issue of fault for the alleged overpayment from July 17 through
August 1, 2015. The Board finds the amount of overpayment is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case
remanded for further action in conformance with this decision.
Issued: July 14, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 15-1523
Issued: December 21, 2015

Case Submitted on the Record

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

JURISDICTION
On July 7, 2015 appellant filed a timely appeal of a January 22, 2015 merit decision and a
February 26, 2015 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
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish hearing loss
causally related to his employment duties; and (2) whether OWCP properly refused to reopen
appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 22, 2015 decision, OWCP received additional evidence. Appellant
also submitted new evidence with his appeal to the Board. However, the Board may only review evidence that was
in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176
(issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB
281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant contends that OWCP failed to review the medical evidence
submitted with his reconsideration request. He also argues that OWCP prematurely closed his
case and that the employing establishment failed to provide OWCP with preemployment
screening tests as requested by OWCP and appellant.
FACTUAL HISTORY
On July 24, 2014 appellant, then a 46-year-old tractor trailer operator, filed an
occupational disease claim (Form CA-2) alleging that on May 7, 2002 he first became aware of
his hearing loss. It was not until May 12, 2002 that he realized his employment duties and
exposure to a very loud noise at the industrial facility was the cause of his bilateral hearing loss.
Appellant stated that prior to starting work with the employing establishment he had to pass a
hearing test. He last worked as a tractor trailer operator on September 27, 2011 and January 21,
2013 was the last day appellant worked for the employing establishment.
In support of his claim, appellant submitted audiological evaluation tests for the period
May 7, 2002 to June 13, 2014.
By letter dated August 20 2014, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised as to the medical and factual
evidence required and afforded 30 days to provide the requested information.
In a letter dated August 20, 2014, OWCP requested that the employing establishment
provide evidence which included sources of noise exposure, job sites where noise exposure
allegedly occurred, a noise survey report including frequency and decibel level, types of ear
protection provided, and a copy of all medical examinations pertaining to appellant’s ear or
hearing problems, including all audiograms and preemployment examination.
In an April 20, 2007 medical examination report for commercial driver fitness
determination, Dr. Eva Ostrowski, an employing establishment contract physician, provided a
health history, comments on appellant’s health history, and physical examination findings.
Under comments, she noted appellant’s decreased hearing and reported that an audiogram was
ordered to determine whether appellant met Department of Transportation (DOT) criteria.
In a May 4, 2007 letter, Dr. Ostrowski informed the employing establishment that
appellant was medically disqualified from driving a tractor trailer based on DOT medical fitness
guidelines.
On September 29, 2014 OWCP received appellant’s response to questions posed.
Appellant noted that September 27, 2011 was the last day of exposure, and that he got hearing
aids in 2008. He reported that it was on August 3, 2008 when he received his hearing aids, that
he first realized that his hearing loss could be employment related. Appellant further noted that
when he started his employment in 1996 he had perfect hearing and DOT required an annual
physical and hearing evaluation.
On October 20, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. T.K. Venkatesan, a Board-certified otolaryngologist, to address appellant’s hearing loss.

2

Dr. Venkatesan completed an undated outline for otologic evaluation (Form CA-1332),
submitted a November 5, 2014 audiogram, and diagnosed bilateral sensorineural hearing loss. In
the CA-1332 form, Dr. Venkatesan noted that no audiometric data was provided with respect to
appellant’s hearing at the beginning of his federal employment. He reported appellant’s
sensorineural hearing loss was greater than what would be predicted by presbycusis. However,
Dr. Venkatesan was unable to conclude whether the hearing loss was employment related as
there was no baseline data and the first audiogram was 16 years after first exposure. He opined
that causation of the hearing loss could not be determined without job site noise ratings recorded
at the time and audiometric data performed during appellant’s years of employment. In
concluding, Dr. Venkatesan checked a box that the bilateral sensorineural hearing loss was not
due to federal employment noise exposure. In support of this conclusion, he reiterated that as no
baseline audiometric data before 1996 was provided for review that he was “unable to track
origin [and] progression of hearing loss.”
By decision dated January 22, 2015, OWCP denied appellant’s claim as it found the
medical evidence failed to establish that his hearing loss was caused or aggravated by his
employment.
In a form dated January 22, 2015, appellant requested reconsideration and stated that new
evidence was attached. No evidence was received with the reconsideration form.
By decision dated February 26, 2015 OWCP denied reconsideration and noted that no
evidence had been received with his request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged, and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition

3

5 U.S.C. § 8101 et seq.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS -- ISSUE 1
It is undisputed that appellant was exposed to noise for a number of years in the course of
his federal employment as a tractor trailer operator. On January 22, 2015 OWCP denied the
claim finding that the medical evidence did not support that the hearing loss was causally related
to workplace noise exposure. It based its decision on the reports of the second opinion
physician, Dr. Venkatesan, who performed an evaluation on November 5, 2014. The Board
finds that this case is not in posture for decision as to whether appellant’s hearing loss was
causally related to his employment noise exposure.
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value, its convincing quality, and the factors which enter into such an
evaluation, including the opportunity for and thoroughness of examination, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, the care of the
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.10
In the undated CA-1332 form, Dr. Venkatesan noted that no audiometric data pertaining to
appellant’s hearing at the beginning of his federal employment had been priority. He reported
that appellant’s sensorineural hearing loss was greater than what could be attributed to
presbycusis, but, based on the medical and factual evidence OWCP provided, he was unable to
determine whether appellant’s hearing loss was employment related. Dr. Venkatesan noted that
the first audiogram was 16 years after appellant’s first employment-related noise exposure and
there was no baseline data. As such, he found that appellant’s bilateral sensorineural hearing
loss was not due to federal employment noise exposure.
6

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

See C.M., Docket No. 09-1268 (issued January 22, 2010); K.W., 59 ECAB 271 (2007); Michael S. Mina, supra
note 8.

4

Dr. Venkatesan’s report is insufficient to resolve the question of whether appellant’s
workplace noise exposure caused or contributed to his hearing loss.11 The Board has held that,
when OWCP refers a claimant for a second opinion evaluation and the report does not
adequately address the relevant issues, OWCP should secure an appropriate report on the
relevant issues.12
The record before the Board contains audiograms beginning May 7, 2002. It is well
established that proceedings under FECA are not adversarial in nature, nor is OWCP a
disinterested arbiter.13 While appellant has the burden to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.14
When OWCP undertakes to develop the medical aspects of a case, it must exercise extreme care
in seeing that its administrative processes are impartially and fairly conducted.15
The case is remanded for OWCP to provide the entire record to OWCP’s medical adviser
and request an updated medical opinion. Following this and such other development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision. In light of the Board’s
disposition on the first issue, the second issue is moot.

11

An employee is not required to prove that occupational factors are the sole cause of his claimed condition. If
work-related exposures caused, aggravated, or accelerated appellant’s condition, he is entitled to compensation. See
Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).
12

Peter C. Belkind, 56 ECAB 580 (2005) (when OWCP refers a claimant for a second opinion evaluation and the
report does not adequately address the relevant issues, OWCP should secure an appropriate report on the relevant
issues).
13

R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57
ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004).
14

D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004).

15

See P.K., Docket No. 08-2551 (issued June 2, 2009); supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 22 and February 26, 2015 are set aside and the case
remanded for further proceedings consistent with the above opinion.
Issued: December 21, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6