United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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)
and
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DEPARTMENT OF THE NAVY,
)
NAVAL BASE KITSAP, Keyport, WA, Employer )
__________________________________________ )
T.H., Appellant

Appearances:
John E. Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0800
Issued: December 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 10, 2016 appellant, through counsel, filed a timely appeal from a
November 17, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than 180 days elapsed from OWCP’s last merit decision, dated April 23,
2015, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

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

Appellant also filed a timely request for oral argument in this case pursuant to 20 C.F.R. § 501.5(b). After
exercising its discretion, the Board, by order dated April 18, 2017, denied the request, as appellant’s arguments on
appeal could be adequately addressed in a decision based on a review of the case record. Order Denying Request for
Oral Argument, Docket No. 16-0800 (issued April 18, 2017).
3

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the
claim.4
ISSUE
The issue is 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
On February 11, 2013 appellant, then a 54-year-old firefighter, filed an occupational
disease claim (Form CA-2) alleging bilateral hearing loss and tinnitus as a result of his federal
employment. He became aware of his condition and that it was caused or aggravated by his
federal employment on December 14, 2012. OWCP accepted appellant’s claim for bilateral
hearing loss. Appellant has a prior claim, number xxxxx133, accepted for bilateral hearing loss,
which is the master file of the current claim.
On June 13, 2013 appellant was advised of the employing establishment’s inability to
accommodate him in his firefighter position. On July 23, 2013 the employing establishment
offered appellant the position of security clerk (office automation) as a permanent reasonable
accommodation. The position was located at the passport and identification office and appellant
informally and briefly worked this position. Appellant refused to formally accept the job offer
and also refused any other attempts by the employing establishment to find suitable work for him
at other facilities. He officially declined the job offer on August 14, 2013.
In a letter dated September 10, 2013, OWCP advised appellant that the offered position
of security clerk was found to be suitable to his capabilities and was currently available. It found
the position suitable and in accordance with appellant’s medical limitations for his date-of-injury
job as a firefighter because it did not involve any significant noise exposure or the need for
normal hearing, with or without hearing aids.5 Appellant was provided 30 days to accept the
position or provide written reasons for his refusal. OWCP informed him that if he failed to
accept the offered position and failed to demonstrate that the refusal of the offer of suitable work
was justified, his compensation would be terminated pursuant to 5 U.S.C. § 8106(c)(2).
When appellant did not return to work within 30 days of the September 10, 2013 letter,
OWCP advised appellant in a November 19, 2013 letter that the offered position remained
suitable and available to him and that his reasons for refusing to accept the offered position were
4

The Board notes that appellant submitted additional evidence after OWCP rendered its November 17, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. See 20
C.F.R. § 501.2(c)(1).
5

In a December 18, 2012 report, Ashley B. Gordon evaluated appellant, then a civilian firefighter, for fitness for
duty given his hearing loss in both ears. She opined that appellant was not audiometrically fit for duty as a fireman.
Ms. Gordon reviewed the National Fire Protection Association Standards on Medical Program for Fire Departments
and opined that appellant would have increased difficulty hearing while performing critical job duties in the
presence of background noise with and without the use of protective equipment.

2

not valid. Appellant was afforded 15 additional days to accept and report to that position or his
entitlement to wage-loss compensation and schedule award benefits would be terminated. He
did not do so within the time allotted.
By decision dated January 8, 2014, OWCP terminated appellant’s compensation and
entitlement to claim a schedule award effective January 8, 2014 as he refused an offer of suitable
work under section 8106(c)(2). It noted that he had not accepted the position within the allotted
15-day time period. OWCP determined that the job was suitable as the position may be
performed within the prescribed restrictions. It found that his failure to report to the offered
position was not justified as he had not submitted evidence that the position was beyond his
ability or required him to be exposed to excessive noise.
On January 10 and 14, 2014 both counsel and appellant requested a hearing before an
OWCP hearing representative, which was held June 27, 2014. Several declarations from
coworkers were submitted along with appellant’s response and an argument from counsel.
In a September 11, 2014 decision, the hearing representative affirmed the January 8, 2014
OWCP decision. She found that appellant had refused the job offer of security clerk which was
suitable and available. The hearing representative further found that appellant had not provided
sufficient evidence to establish that he had performed the outside tasks he described while he
informally worked at the passport and identification office or that such tasks would expose him
to hazardous noise in the offered position.
On November 18, 2014 appellant requested reconsideration. Additional evidence
regarding noise exposure was submitted. By decision dated April 23, 2015, OWCP denied
modification of the September 11, 2014 decision. It noted that the confirmed incidents of noise
exposure did not show that the offered security clerk job was unsuitable as such incidents did not
happen on a repetitive basis. Appellant also provided insufficient evidence that he was exposed
to a significant hazardous noise associated with the security clerk position.
On September 28, 2015 appellant requested reconsideration. In a July 28, 2015 letter,
Amy M. Becken, Au. D., CCC-A, an audiologist, documented appellant’s work history and that
he had worn hearing devices in both ears since 2001 due to the severity of his hearing loss and
communication issues. It was her professional opinion that appellant not be exposed to any
levels of hazardous noise at the workplace. This letter was countersigned by Dr. Michael
McManus, a Board-certified occupational medicine specialist, on September 23, 2015.
In a nonmerit decision dated November 17, 2015, OWCP denied appellant’s
reconsideration request. The decision noted that the evidence did not support that OWCP
erroneously applied or interpreted a point of law or advance a relevant legal argument not
previously considered. OWCP further found that the new evidence was not relevant. It
explained that the statement which Dr. McManus countersigned, which noted that the work
environment was contraindicated due to the dangers of continued exposure, was without merit as
he had not provided empirical data or environmental studies of the building/site in question to
substantiate a sustained noise decibel level in excess of 85. OWCP noted that no studies had
been submitted as to how many semi-trucks passed through the gate, at what intervals, the
duration of noise exposure from those vehicles, and most importantly, the level of noise in the

3

passport and identification office. It also cited 1981 Occupational Safety and Health
Administration requirements to protect workers to a time weighted average noise of 85 decibels
or higher over an eight-hour work shift.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.8 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.9 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.10
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated November 17, 2015, which denied appellant’s application for review.
The merit issue in this case is whether OWCP properly terminated appellant’s wage-loss
compensation benefits effective January 8, 2014 as he refused an offer of suitable work. By
decision dated January 8, 2014, OWCP terminated appellant’s compensation and entitlement to a
schedule award effective January 8, 2014 as he refused an offer of suitable work under section
8106(c)(2). The refusal of an offer of suitable work was affirmed by an OWCP hearing
representative on September 11, 2014 and OWCP denied modification in a merit decision on
April 23, 2015. Appellant requested reconsideration on September 28, 2015 and submitted a
July 28, 2015 letter from an audiologist, which Dr. McManus countersigned on
September 23, 2015.

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
6

7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). 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). Id. at Chapter 2.1602.4b.
9

Id. at § 10.606(b)(3).

10

Id. at § 10.608(a), (b).

4

The Board finds that, as appellant did not assert that OWCP erroneously applied or
interpreted a point of law or advance a relevant legal argument not previously considered by
OWCP, he was not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(3).11
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted a July 28, 2015 letter from an audiologist, Amy Becken, which Dr. McManus
countersigned on September 23, 2015. In the July 28, 2015 letter, the audiologist documented
appellant’s work and medical history and for the first time set forth specific restriction of
avoiding hazardous noise. She opined that appellant not be exposed to any levels of hazardous
noise at the workplace.
On appeal counsel argued a merit review should have been conducted as relevant new
medical evidence was submitted. The Board agrees. The Board finds that Dr. McManus’ report,
which had not previously been reviewed by OWCP, constitutes relevant and pertinent new
evidence in regard to whether OWCP properly terminated appellant’s benefits for refusing
suitable work. This evidence goes to the question of whether the security clerk position exposed
appellant to any hazardous noise. It is not necessary that the evidence be sufficient to establish
the claim, only that it is new, relevant, and pertinent to the issue presented.12
As appellant submitted relevant and pertinent new evidence on reconsideration that was
not previously considered by OWCP, he is entitled to a review of the merits of his claim under
section 10.606(b)(3) of OWCP regulations.13 The case shall therefore be remanded to OWCP to
consider whether the audiologist’s July 28, 2015 letter, which Dr. McManus countersigned, is
sufficient to require further development. The Board will therefore set aside OWCP’s
November 17, 2015 decision. After this and such further development deemed necessary,
OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for a merit review
pursuant to section 8128(a) of FECA.

11

Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

12

P.H., Docket No. 15-1453 (issued August 4, 2016); C.L., Docket No. 14-1904 (issued May 18, 2015).

13

20 C.F.R. § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

5

ORDER
IT IS HEREBY ORDERED THAT the November 17, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: December 15, 2017
Washington, DC

Christopher J. Godfrey, Chief 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
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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)
)
)
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)

Appearances:
Thomas S. Harkin,Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1431
Issued: October 17, 2007

Case Submitted on the Record

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

JURISDICTION
On May 2, 2007 appellant filed a timely appeal from a February 2, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, denying his request for
reconsideration and finding that it failed to establish clear evidence of error. Because more than
one year has elapsed between the most recent merit decision dated February 15, 2000 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. In a February 15, 2000 decision, the
Board affirmed the Office hearing representative’s December 29, 1997 decision affirming a
December 13, 1996 Office decision terminating appellant’s compensation benefits effective

December 13, 1996 on the grounds that he no longer had any disability causally related to his
April 10, 1996 employment-related injuries.1 The Board accorded determinative weight to an
October 31, 1996 medical report of Dr. Lawrence E. Miller, a Board-certified orthopedic surgeon
and Office referral physician, which found that appellant was capable of returning to his regular
work duties on a full-time basis. The facts and the circumstances of the case as set forth in the
Board’s prior decision are incorporated herein by reference.2 The facts and the history relevant
to the present issue are hereafter set forth.
After the issuance of the Board’s decision on February 15, 2000, the Office received a
March 13, 2000 medical report of Dr. Malik M.P. Akhtar, an attending orthopedic surgeon, who
stated that appellant had not been seen in his office since January 6, 1997 following a
work-related automobile accident which resulted in fractured multiple ribs, left shoulder sprain
and neck, back, right knee and right ankle and heel injuries. He found that appellant sustained
impingement and rotator cuff arthropathy of the left shoulder, post-traumatic depression and
myofasciitis traumatica with recurrence flare-ups. Dr. Akhtar further found that appellant was
status post fracture of the ribs with recurrent pleurisy. He also diagnosed post-traumatic arthritis
of the shoulder joints and cervical spine which he stated was likely to worsen with time.
Dr. Akhtar opined that appellant remained totally disabled for work. In a March 26, 2002 report,
he reiterated his prior diagnoses. Dr. Akhtar opined that appellant continued to have residuals of
his accepted April 10, 1996 employment-related injuries.
On November 19, 2006 appellant, through counsel, requested reconsideration. Counsel
contended that appellant’s claim should be expanded to include additional work-related medical
conditions. He further contended that the Office erred in terminating appellant’s compensation
as the medical evidence of record established that appellant had continuing residuals and
disability causally related to his accepted April 10, 1996 employment-related injuries.
By decision dated February 2, 2007, the Office found that appellant’s letter requesting
reconsideration was dated November 9, 2006, more than one year after the Board’s February 15,
2000 decision and was untimely.3 The Office found that appellant did not submit evidence to
establish clear evidence of error in the prior decision terminating his compensation benefits.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle a claimant
to a review of an Office decision as a matter of right.5 The Office, through its regulations, has
1

Docket No. 98-1144 (issued February 15, 2000).

2

On April 12, 1996 appellant, then a 53-year-old part-time flexible letter carrier, filed a traumatic injury claim
alleging that on April 10, 1996 he fractured the left side of his body as a result of an automobile accident that
occurred while he was working at the employing establishment. The Office accepted his claim for a concussion,
cervical sprain, left shoulder sprain, lumbosacral derangement and rib fracture.
3

The Board notes that it appears that the Office inadvertently stated that appellant’s request for reconsideration
was dated November 9, 2006 rather than November 19, 2006.
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

2

imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulation provides that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.6
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.8 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.13 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.14
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. In implementing the one-year time limitation, Office’s procedures
provide that the one-year time limitation period for requesting reconsideration begins on the date
6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

Leona N. Travis, supra note 9.

12

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

13

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14

Thankamma Mathews, 44 ECAB 765, 770 (1993).

3

of the original Office decision. However, a right to reconsideration within one year accompanies
any subsequent merit decision on the issues.15
The last merit decision in this case was issued by the Board on February 15, 2000. The
Board found that the Office properly terminated appellant’s compensation effective
December 13, 1996 on the grounds that he no longer had any disability causally related to his
April 10, 1996 employment-related injuries.16 As appellant’s November 9, 2006 letter
requesting reconsideration was made more than one year after the Board’s February 15, 2000
merit decision, the Board finds that it was not timely filed.
The issue for purposes of establishing clear evidence of error in this case, is whether
appellant submitted evidence establishing that the Office erred in terminating his compensation
effective December 13, 1996 on the grounds that he no longer had any disability causally related
to the accepted employment injuries. The Board notes that this issue is medical in nature.
Appellant has not presented clear evidence of error by the Office in terminating his
compensation benefits. In support of his November 9, 2006 request for reconsideration,
appellant submitted Dr. Akhtar’s March 13, 2000 and March 26, 2002 reports which found that
he sustained impingement and rotator cuff arthropathy of the left shoulder, post-traumatic
depression, myofascitis traumatica with recurrence flare-ups and post-traumatic arthritis of the
shoulder joints and cervical spine. Dr. Akhtar also found that appellant was status post fracture
of the ribs with recurrent pleurisy. He opined that appellant’s continuing residuals and total
disability were causally related to the April 10, 1996 employment injuries. This evidence is
insufficient to prima facie shift the weight of the evidence in appellant’s favor of because
Dr. Akhtar’s reports were previously of record and considered by the Office.17 Moreover,
Dr. Akhtar failed to provide medical rationale explaining how or why appellant’s continuing
residuals and disability were causally related to the accepted employment injuries. For these
reasons, the Board finds that Dr. Akhtar’s March 13, 2000 and March 26, 2002 reports are of
diminished probative value and therefore do not establish clear evidence of error.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

15

Larry L. Litton, 44 ECAB 243 (1992).

16

See supra note 1.

17

George C. Vernon, 54 ECAB 319 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Dallas, TX, Employer
__________________________________________

)
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)
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)

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

Docket No. 14-1296
Issued: November 12, 2014

Case Submitted on the Record

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

JURISDICTION
On May 12, 2014 appellant filed a timely appeal from a March 21, 2014 merit decision
and an April 28, 2014 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 OWCP properly suspended appellant’s compensation
benefits effective March 21, 2014 due to her failure to attend a scheduled medical examination;
and (2) whether OWCP properly denied appellant’s April 18, 2014 request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional medical evidence following the April 28, 2014 decision.
Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt,
57 ECAB 126 (2005).

FACTUAL HISTORY
On May 23, 2009 appellant, then a 60-year-old crew leader and lister, filed a traumatic
injury claim alleging that on May 18, 2009 she sustained a severe sprain and contusions to both
her knees when she fell down at work. She stopped work on May 19, 2009. OWCP accepted
appellant’s claim for bilateral knee contusion, right lateral meniscus derangement and right knee
medial meniscus tear. Appellant was paid medical and wage-loss compensation benefits.
On November 6, 2013 OWCP referred appellant, along with a statement of accepted
facts, for a second opinion examination to address whether she continued to suffer residuals of
her May 18, 2009 employment injury, whether she continued to be disabled as a result of her
accepted condition and whether she could return to work.
In a letter dated November 19, 2013, QTC Medical Services, Inc., the medical
appointment scheduler, notified appellant that she was scheduled for an appointment with
Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, at 12:30 p.m. on December 5, 2013.
Appellant did not appear for the scheduled examination on December 5, 2013.
By letter dated December 6, 2013, OWCP proposed to suspend appellant’s compensation
benefits pursuant to section 8123(d) of FECA for failure to attend the December 5, 2013
examination with Dr. Lakin. Appellant was advised to provide a written explanation of her
reasons for not attending this appointment, along with corroborating evidence, within 14 days.
In a letter dated December 16, 2013 and received on December 19, 2013, appellant
requested rescheduling of the December 5, 2013 medical appointment. She stated that she had
been extremely ill and mostly bedridden due to the deterioration of her left leg condition.
Appellant noted that on November 12, 2013 she was given a shot in the knee for pain and that
she subsequently also had a flu shot. She explained that she did not know that persons with
extreme health issues, especially fibromyalgia, should not have a flu shot. Appellant reported
that she became extremely ill within a few days and was incapable of “handling telephone calls,
paperwork, etc….” She included a prescription note which indicated that she had received a flu
shot.
By letter dated January 6, 2014, OWCP advised appellant that her second opinion
examination with Dr. Lakin was rescheduled for January 20, 2014 at 2:45 p.m.
On January 21, 2014 QTC Medical Services, Inc., informed OWCP that appellant did not
appear for her January 20, 2014 appointment with Dr. Lakin.
On January 21, 2014 OWCP proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA for failure to attend the January 20, 2014 examination with
Dr. Lakin. Appellant was advised to provide a written explanation of her reasons for not
attending this appointment, along with corroborating evidence, within 14 days.
Appellant submitted medical reports dated May 17 and November 12, 2013 by Dr. Fred
Lee, a Board-certified orthopedic surgeon, who specializes in sports medicine, regarding
treatment for persistent left knee pain and degenerative joint disease.

2

By decision dated March 21, 2014, OWCP finalized its proposed suspension, effective
March 21, 2014. It noted that it had directed appellant to report for the examination scheduled
on January 20, 2014, but she neither attended the examination nor provided a written explanation
for her failure to attend within 14 days of OWCP’s January 21, 2014 letter.
In an appeal request form dated March 27, 2014 and received on April 18, 2014,
appellant requested reconsideration. She stated that she did not receive the letter regarding an
appointment with Dr. Lakin. No additional evidence was received.
By decision dated April 28, 2014, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant further merit review under 5
U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.3
The determination of the need for an examination, the type of examination, the choice of locale
and the choice of medical examiners are matters within the province and discretion of OWCP.4
OWCP regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.5
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to
submit to or obstructs a directed medical examination, his or her right to compensation is
suspended until the refusal or obstruction ceases.6 OWCP procedures provide that, before
OWCP may invoke these provisions, the employee is to be provided a period for 14 days within
which to present in writing his or her reasons for the refusal or obstruction.7 If good cause for
the refusal or obstruction is not established, entitlement to compensation is suspended in
accordance with section 8123(d) of FECA.8
The Board has found that it is presumed, in the absence of evidence to the contrary, that a
notice mailed to an individual in the ordinary course of business was received by that individual.
This presumption arises when it appears from the record that the notice was properly addressed
and duly mailed.9
3

5 U.S.C. § 8123.

4

J.T., 59 ECAB 293, 296 (2008); S.B., 58 ECAB 267, 271 (2007); James C. Talbert, 42 ECAB 974, 975 (1991).

5

20 C.F.R. § 10.320.

6

Supra note 3; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298, 303 (2006).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
8

Id.

9

Y.C., Docket No. 13.800 (issued August 22, 2013).

3

ANALYSIS -- ISSUE 1
On November 6, 2013 OWCP referred appellant for a second opinion examination to
determine the nature and extent of her accepted May 18, 2009 conditions and continuing
disability. Appellant did not appear for the scheduled examination on December 5, 2013. On
January 6, 2014 OWCP rescheduled her second opinion examination for January 20, 2014.
Appellant again did not appear for the scheduled examination. In a letter dated January 21,
2014, OWCP provided her 14 days from the date of the letter to provide an explanation for her
failure to attend the scheduled examination. Appellant did not provide a statement or
explanation within the allotted time. By decision dated March 21, 2014, OWCP suspended her
compensation benefits based on her failure to appear for the January 20, 2014 examination. The
Board finds that OWCP properly suspended appellant’s compensation for failure to attend a
scheduled medical examination on January 20, 2014.
On appeal, appellant alleges that she never received any letters regarding missing
appointments with Dr. Lakin. She also noted that she was hospitalized on March 27, 2014 due to
her left leg condition. The record establishes that the letter notifying appellant of the date, time
and location of the January 20, 2014 appointment was mailed to her last known address in
Leonia, NJ, on January 6, 2014. The letter proposing to suspend her compensation was also
mailed to this proper address. The Board notes that at the time the letters were sent, appellant’s
last known address was in Leonia, NJ.
The Board finds that it is presumed that appellant received OWCP’s letter dated
January 6, 2014 advising her of her appointment with Dr. Lakin and the letter dated January 21,
2014 advising her of the proposed suspension of benefits, because these letters were properly
addressed and duly mailed to her last known address.10 Appellant alleged that she had not
received any letters from OWCP, but she did not submit any contrary evidence to show that
these letters were not mailed to her in the ordinary course of business.
For these reasons, the Board finds that OWCP properly suspended appellant’s entitlement
to compensation in accordance with 5 U.S.C. § 8123 effective March 21, 2014, for failure to
submit to a medical examination without good cause. Should appellant subsequently agree to
attend the examination and cease the obstruction, OWCP will restore any periodic benefits
retroactive to the date she agreed to attend the examination.11
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.12 OWCP’s regulations provide that OWCP may

10

Id.

11

20 C.F.R. § 10.323.

12

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).

4

review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district office.13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.14
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.15 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.16 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.17
ANALYSIS -- ISSUE 2
By decision dated March 21, 2014, OWCP suspended appellant’s compensation on the
grounds that she did not attend a scheduled second opinion examination. On April 18, 2014 it
received appellant’s request for reconsideration. Appellant stated that she never received a letter
regarding an appointment with Dr. Lakin and that she was currently in the hospital because of
her left knee. No additional evidence was received. As discussed previously, appellant’s
argument that she did not receive the appointment letter lacks color of validity. OWCP’s
correspondence to appellant was mailed to her last known address. While a reopening of a case
may be predicated solely on a legal premise not previously considered such reopening is not
required where the legal contention does not have a reasonable color of validity.18
The Board notes that appellant’s April 18, 2014 request for reconsideration did not
demonstrate that OWCP erroneously applied or interpreted a specific point of law. Additionally,
appellant did not advance a relevant legal argument not previously considered nor submit new
and relevant evidence. Consequently, the Board finds that she did not meet any of the necessary
requirements to entitle her to further merit review.

13

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
14

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a).

16

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

17

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

18

See John F. Critz, 44 ECAB 788, 794 (1993).

5

Therefore, OWCP properly refused to reopen appellant’s case for further consideration of
the merits of her claim under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s right to future compensation
effective March 21, 2014 because she did not attend a scheduled medical examination. The
Board also finds that OWCP properly denied her April 18, 2014 request for reconsideration
pursuant to 5 U.S.C. § 8128(a)
ORDER
IT IS HEREBY ORDERED THAT the April 28 and March 21, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 12, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


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

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

Docket No. 14-409
Issued: July 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 12, 2013 appellant filed a timely appeal from a September 12, 2013 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.
ISSUE
The issue is whether appellant has more than 12 percent permanent impairment of the
right upper extremity, for which she received a schedule award.
On appeal, appellant requests that the Board explain how the period and percentage of a
schedule award is determined by OWCP.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This has previously been before the Board with respect to an overpayment of
compensation.2 The facts of the case as set forth in the prior appeal are incorporated by
reference. The facts relevant to the current appeal are set forth below.
OWCP accepted that on May 5, 2010 appellant, a 48-year-old mail handler, sustained a
right shoulder and upper arm sprain causally related to factors of her federal employment. She
returned to full-time work at the employing establishment on July 21, 2011. Appellant
underwent two authorized right shoulder surgeries performed on November 23, 2011 and
August 2, 2012.
On April 12, 2013 appellant filed a claim for a schedule award. In a March 22, 2013
medical report, Dr. Karen M. Perl, an attending Board-certified physiatrist, noted that appellant
had returned to limited-duty work, but was still having problems with her right shoulder. On
physical examination, she reported that appellant ambulated independently and was able to heel
and toe walk bilaterally. Appellant walked with no shuffling, ataxia or antalgia. An examination
of the cervical, thoracic and lumbar spines and myofascial was unchanged. Pulses were intact
and the skin showed no signs of infection. Dr. Perl advised that, although there was
improvement in range of motion from the first to the second surgery, there were still significant
deficits with multiple levels of range of motion. Passive range of motion was better than active
range of motion. Appellant still had some weakness at the right shoulder, but a drop arm test
was negative.
On neurological examination, Dr. Perl found that deep tendon reflexes were +2/4 in the
upper extremities bilaterally. Sensation to light touch was intact in the upper extremities
bilaterally. Sensation to pinprick was decreased at the proximal shoulder on the right. Manual
muscle testing showed definitive weakness with the right shoulder at 3+/5. The right upper
extremity measured 16, 28 and 35 centimeters. Dr. Perl diagnosed a May 5, 2010 employmentrelated right shoulder injury and right shoulder strain with impingement syndrome. She advised
that appellant was status post right shoulder arthroscopies performed on November 23, 2011 and
August 2, 2012.
Dr. Perl utilized the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), and found that the range of motion
method of calculating impairment was more appropriate than the diagnosis-based estimates.3
Regarding the right shoulder, she used Table 15-34 on page 475 and found that 135 degrees of
flexion rounded to 140 degrees was 3 percent impairment, 44 degrees of extension rounded to 40
degrees was 1 percent impairment, 145 degrees of abduction rounded to 150 was 3 percent
impairment, 42 degrees adduction rounded to 40 degrees was 0 percent impairment, 58 degrees
2

Docket No. 12-688 (issued September 7, 2012). In a September 7, 2012 decision, the Board affirmed in part a
November 1, 2011 OWCP decision, finding that appellant received an overpayment of compensation. The Board set
aside in part the decision, finding that appellant was not at fault in creation of the overpayment and remanded the
case to OWCP for further development as to whether she was entitled to waiver of recovery of the overpayment.
3

A.M.A., Guides 461.

2

of internal rotation rounded to 60 degrees was 2 percent impairment and 54 degrees of external
rotation rounded to 50 degrees was 2 percent impairment. Dr. Perl added these impairments to
reach 11 percent impairment of the right upper extremity due to loss of range of motion. She
utilized Table 15-7 on page 406 and determined that appellant had a grade modifier 2 for
functional history, moderate problems with pain and symptoms on normal activity and use of
medications to control the symptoms, and a QuickDASH score that fell into the 50 range.
Dr. Perl utilized Table 15-35 on page 477 and found that 11 percent was a grade modifier 1. She
determined, based on Table 15-36 on page 477, since the functional history grade adjustment
was one grade higher than the range of motion grade modifier, that she would multiply 11
percent by 5 percent equaling 0.55 percent, which rounded to 1 percent. Dr. Perl added the 1
percent and 11 percent impairment ratings to calculate a 12 percent right upper extremity
impairment rating. She concluded that appellant reached maximum medical improvement on
March 22, 2013.
On May 2, 2013 an OWCP medical adviser reviewed Dr. Perl’s report and concurred
with the date of maximum medical improvement and 12 percent right upper extremity
impairment rating.
In a September 12, 2013 decision, OWCP granted appellant a schedule award for 12
percent impairment of the right upper extremity or 37.44 weeks of compensation. The award ran
from March 22 to December 9, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides8 as the appropriate edition for all awards
issued after that date.9

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Ausbon N. Johnson, 50 ECAB 304 (1999).

7

20 C.F.R. § 10.404; Mark A. Holloway, 55 ECAB 321, 325 (2004).

8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

3

The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted appellant’s claim for right shoulder and upper arm sprain. Appellant
received a schedule award for 12 percent impairment to the right upper extremity. The Board
finds that she did not meet her burden of proof to establish greater impairment to the right upper
extremity.
Appellant has failed to submit any evidence by a treating physician finding greater
impairment to the right upper extremity related to the accepted conditions. Dr. Perl’s March 22,
2013 report determined that appellant’s impairment should be based on her loss of range of
motion due to her accepted right shoulder conditions under the sixth edition of the A.M.A.,
Guides. She determined that her loss of range of motion resulted in a 12 percent impairment
rating. Dr. Perl properly referred to Table 15-34 on page 475 for shoulder range of motion and
found 3 percent impairment for flexion of 135 degrees, 1 percent impairment for 44 degrees of
extension, abduction of 145 degrees would equal 3 percent impairment, adduction of 42 degrees
would equal 0 percent impairment, internal rotation of 58 degrees would equal 2 percent
impairment and external rotation of 54 degrees would equal 2 percent impairment. She added
the range of motion values and indicated that it would result in an 11 percent permanent
impairment.
Following the process set forth in the A.M.A., Guides for using range of motion as a
stand-alone approach to rating impairment in the shoulder joint,13 Dr. Perl also referred to Table
15-35 on page 477 and explained that the range of motion deficit qualified for a grade 1
modifier. She also referred to Table 15-7 and advised that, because appellant continued to have
pain with normal activities, she qualified for a grade 2 modifier. Dr. Perl noted the difference of
1, and advised that the permanent impairment award was multiplied by 5 percent resulting in 12

10

A.M.A., Guides 494-531.

11

Id. at 521.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
13

A.M.A., Guides 473-78.

4

percent impairment.14 She advised that appellant reached maximum medical improvement on
March 22, 2013.
The file was then properly routed to OWCP’s medical adviser, for an opinion concerning
the nature or percentage of permanent impairment in accordance with the A.M.A., Guides.15 On
May 2, 2013 the medical adviser reviewed Dr. Perl’s report and concurred with her use of the
A.M.A., Guides and the impairment rating.
The Board finds that both physicians applied the appropriate tables of the A.M.A.,
Guides and found that appellant has no more than 12 percent impairment of the right upper
extremity under the sixth edition of the A.M.A., Guides. The medical evidence does not
establish that appellant has any greater impairment than that for which she has already received a
schedule award.16
On appeal, appellant requested that the Board explain how the period and percentage of a
schedule award is determined by OWCP. The period covered by a schedule award commences
on the date that the employee reaches maximum medical improvement from the residuals of the
employment injury. Maximum medical improvement means that the physical condition of the
injured member of the body has stabilized and will not improve further.17 The determination of
the date of maximum medical improvement is factual in nature and depends primarily on the
medical evidence.18 The date of maximum medical improvement is usually considered to be the
date of the evaluation accepted as definitive by OWCP.19 In this case, Dr. Perl and OWCP’s
medical adviser found that the date of maximum medical improvement was March 22, 2013.
Therefore, March 22, 2013 was the appropriate date used by OWCP to commence the schedule
award.
Regarding payment of the schedule award, the Board notes that section 8107(c)(1) of
FECA provides that, for a 100 percent loss of use of the arm, a claimant is entitled to 312
weeks of compensation. As appellant has a 12 percent loss of use of her right shoulder and arm,
she is entitled to 12 percent of 312 weeks or 37.44 weeks of compensation, which was provided
to her in the schedule award decision. She is entitled to no more under FECA.
20

14

Id. at 477, Table 15-36, Functional History Grade Adjustment: Range of Motion.

15

Id.

16

S.C., Docket No. 11-1679 (issued September 12, 2012).

17

Adela Hernandez-Piris, 35 ECAB 839 (1984).

18

J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

19

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, supra note 9 at Chapter 3.700.3.a
(January 2010); see Richard Larry Enders, 48 ECAB 184 (1996) (the date of maximum medical improvement was
the date of the audiologic examination used as the basis of the schedule award).
20

5 U.S.C. § 8107(c)(1).

5

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that she has more than 12 percent
impairment of the right upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 17-1557
Issued: September 4, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 10, 2017 appellant filed a timely appeal from a June 15, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish entitlement to wageloss compensation for intermittent periods of disability from September 13, 2016 through
April 7, 2017.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued the June 15, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are
as follows.
On December 31, 2007 appellant, then a 35-year-old window clerk, filed an occupational
disease claim (Form CA-2) asserting that repetitive lifting and placing boxes on the counter while
at work caused a pop in her neck and lumbar region. OWCP accepted the claim, assigned File No.
xxxxxx015, for displacement of cervical intervertebral disc without myelopathy, lumbar sprain,
brachial radiculitis and cervical spondylosis without myelopathy and paid appellant intermittent
wage-loss compensation benefits on the supplemental rolls. It also authorized a July 13, 2011 C56 anterior cervical discectomy/fusion.
On September 11, 2013 appellant, then working as a distribution clerk/sales associate, filed
a traumatic injury claim (Form CA-1) asserting that she felt pain in her back and right leg while
bending down to pick up a tub of newspapers off a pallet at work. She stopped work on
September 11, 2013 and returned to full-time, limited duty on November 18, 2013. OWCP
assigned OWCP File No. xxxxxx739 to this traumatic injury claim, and accepted the claim for
lumbar sprain and aggravation of preexisting thoracic or lumbosacral neuritis or radiculitis.
Appellant stopped work again on December 16, 2013 and returned to part-time, limited duty with
restrictions on December 23, 2014. OWCP paid intermittent wage-loss benefits. On March 27,
2014 OWCP combined case File No. xxxxxx739 (for the traumatic September 11, 2013 injury)
with the current claim (File No. xxxxxx015), with the latter claim serving as the master file.
By decision dated September 1, 2016, OWCP issued a schedule award for nine percent
right upper extremity permanent impairment and nine percent left upper extremity permanent
impairment. The award ran for 56.16 weeks for the period February 2, 2016 to March 1, 2017.
On April 26, 2017 appellant filed a wage-loss compensation claim (Form CA-7) for
intermittent dates of disability during the period September 13, 2016 through April 7, 2017.
In a March 16, 2017 report, Dr. Candice Addison, a general practitioner, related that
appellant was disabled from March 15 to 17, 2017 due to flare up of cervical disc displacement,
brachial neuritis and lumbar sprain.
In a March 28, 2017 report, Dr. Francisco J. Battle, a neurosurgeon, indicated that
appellant was temporarily totally disabled.
In May 1 and 3, 2017 development letters, OWCP requested additional medical
information to establish disability for work during the period claimed. It afforded appellant 30
days to submit the requested information.
In March 8 and 22, and April 11, 2017 return to work/school forms, Dr. Addison indicated
that appellant was totally incapacitated due to work injury flare ups. In a March 22, 2017 work
3

Docket No. 13-2044 (issued February 20, 2014).

2

capacity evaluation (Form OWCP-5c), she diagnosed cervical and lumbar nerve root impingement.
Dr. Addison advised that appellant was only able to work four hours a day with restrictions.
By decision dated June 15, 2017, OWCP denied appellant’s claim for disability
compensation for the period September 13, 2016 through April 7, 2017 as the medical evidence of
record was insufficient to support that she was disabled as a result of her accepted work-related
medical conditions.4 It noted that there was insufficient evidence to support time loss for
attendance at doctor appointments claimed on December 12 and 15, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.6
Disability means “the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.”7 The question of whether an employee is disabled
for work is an issue that must be resolved by competent medical evidence.8 The employee is
responsible for providing sufficient medical evidence to justify payment of any compensation
sought.9
For each period of disability claimed, the employee has the burden of establishing that she
was disabled from work as a result of the accepted employment injury.10 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.11
A schedule award is payable consecutively, but not concurrently, with an award for wage
loss for the same injury.12 If a claimant loses wages to obtain medical treatment during the period
4

OWCP authorized payment of wage-loss compensation for attendance at doctor appointments on November 4 and
December 14, 2016.
5

Supra note 1.

6
S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

20 C.F.R. § 10.5(f).

8

See R.C., 59 ECAB 546, 551 (2008).

9

20 C.F.R. § 10.501(a).

10

See Amelia S. Jefferson, 57 ECAB 183 (2005). See also 20 C.F.R. § 10.501(a).

11

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.4(a)(3) (February 2013).

3

of a schedule award (e.g., claims hours due to a medical appointment with the treating physician),
compensation for the hours lost may be paid concurrently with a schedule award, as time lost for
medical appointments is not considered disability.13 However, time lost for disability surrounding
the appointment (if any) cannot be paid concurrently with a schedule award.14
With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing medical
care, for injuries.15 Appellant would be entitled to compensation for any time missed from work
due to medical examination or treatment for an employment-related condition.16 However,
OWCP’s obligation to pay for expenses incidental to obtaining medical care, such as loss of wages,
extends only to expenses incurred for treatment of the effects of any employment-related
condition. Appellant has the burden of proof, which includes the necessity to submit supporting
rationalized medical evidence.17 As a rule, no more than four hours of compensation or
continuation of pay should be allowed for routine medical appointments. 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.18
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish entitlement to
wage-loss compensation for intermittent periods of disability from work from September 13, 2016
to April 7, 2017.
OWCP accepted that appellant sustained displacement of cervical intervertebral disc
without myelopathy, lumbar sprain, brachial radiculitis and cervical spondylosis without
myelopathy as a result of her December 2007 occupational injury. It also accepted that she
sustained a lumbar sprain and aggravation of preexisting thoracic or lumbosacral neuritis or
radiculitis for her September 11, 2013 traumatic injury. Appellant received a schedule award for
the period February 2, 2016 through March 4, 2017.
Appellant claimed compensation for intermittent periods of disability for the period
September 13, 2016 through April 7, 2017. At the outset, the Board notes that the periods of wage
loss claimed during the period February 2, 2016 through March 4, 2017 due to disability from
work, would not be payable as appellant was being compensated for a schedule award during that
13

Id.

14

Id. at Chapter 2.808.4(a)(4).

15

5 U.S.C. § 8103(a).

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment,
Chapter 2.901.19a (February 2013). See also Vincent E. Washington, 40 ECAB 1242 (1989).
17

G.B., Docket No. 16-0515 (issued September 14, 2016); Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell,
32 ECAB 1537 (1981).
18
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).

4

period.19 A schedule award is payable consecutively, but not concurrently, with an award for wage
loss for the same injury.20
For the periods of wage loss claimed following the schedule award, the Board finds that
the evidence of record is insufficient to discharge appellant’s burden of proof. In reports
commencing March 8, 2017, Dr. Addison indicated that appellant was incapacitated due to flare
ups of her accepted conditions. Generally, findings on examination are needed to justify a
physician’s opinion that an employee is disabled for work.21 The Board has held that, when a
physician’s statements regarding an employee’s ability to work consists only of a repetition of the
employee’s complaints that she hurts too much to work, without objective signs of disability being
shown, the physician has not presented a medical opinion on the issue of disability or a basis for
payment of compensation.22 The Board has held that a medical opinion not fortified by medical
rationale is of little probative value.23 Dr. Addison did not provide sufficient medical rationale,
supported by objective medical findings, explaining why appellant was disabled from work. Her
opinion is therefore of limited probative value.
Appellant was also seen by Dr. Battle on March 28, 2017, however, he deferred an opinion
regarding appellant’s work restrictions and limitation to Dr. Addison. Dr. Battle’s report therefore
does not support a period of disability.
The Board also finds that OWCP properly denied appellant’s request for wage-loss
compensation due to medical treatment/medical appointments.
With regard to appellant’s claim for compensation for medical treatment/medical
appointments, OWCP specifically denied her claimed dates of December 12 and 15, 2016 as there
was no medical notes or therapy slips verifying treatment due to the work-related injury for the
dates claimed. The Board notes that the record is devoid of medical evidence to support that
appellant received medical care on these dates due to her accepted employment injury. Absent
such evidence, appellant is not entitled to compensation for medical treatment on the claimed
dates.24
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

19

E.S., Docket No. 16-1248 (issued May 15, 2017).

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.4(a)(3) (February 2013).
21

See R.C., Docket No. 17-0748 (issued July 20, 2018).

22

John L. Clark, 32 ECAB 1618 (1981).

23

See D.Q., Docket No. 17-1220 (issued May 18, 2018); George Randolph Taylor, 6 ECAB 986, 988 (1954).

24

See J.B., Docket No. 17-0655 (issued May 7, 2018).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
wage-loss compensation for intermittent periods of disability from work from September 13, 2016
through April 7, 2017.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2017 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2018
Washington, DC

Christopher J. Godfrey, Chief 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
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, GRAND CENTRAL
STATION POST OFFICE, New York, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1707
Issued: April 3, 2019

Case Submitted on the Record

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

JURISDICTION
On September 11, 2018 appellant, through counsel, filed a timely appeal from an April 10,
2018 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.3

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.

3
The Board notes that, following the April 10, 2018 decision, OWCP received additional evidence. However,
section 501.2(c)(1) of the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish knee and back
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On July 10, 2017 appellant, then a 60-year-old window clerk, filed an occupational disease
claim (Form CA-2), assigned OWCP File No. xxxxxx319, alleging that her knees swelled from
walking on the floors in the lobby while at work.4 She related that, after her injury, she worked as
a window clerk. Appellant further related that, as a lobby director, she was required to stand and
walk around which caused swelling and pain in her knees. She noted that she returned to her
physician and started treatment for her lower back injury. Appellant reported that her physician
explained that it was “all related.” She indicated that she first became aware of her condition and
realized its relationship to her federal employment on May 1, 2017. Appellant stopped work on
July 3, 2017. No additional evidence was submitted.
By development letter dated July 14, 2017, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of medical and factual
evidence needed and she was asked to respond to a questionnaire, which sought clarification on
whether she was claiming an occupational disease or traumatic injury based on the definitions
provided. In a separate letter of even date, OWCP also requested that the employing establishment
provide additional information in response to appellant’s allegations.
In a June 21, 2017 attending physician’s report, Dr. Ellen S. Ginsberg, an attending Boardcertified anesthesiologist, noted a history that appellant was a window clerk at the employing
establishment and that she presented for reevaluation. She recounted that appellant reported a
history of low back pain radiating to her left hip and left leg, but recently she experienced increased
pain. Appellant also experienced secondary pain in both knees, but mainly on the left side.
Dr. Ginsberg noted a history of appellant’s medical, family, and social background. She discussed
findings on physical examination and assessed sprain of ligaments of the lumbar spine, subsequent
encounter, unspeciﬁed internal derangement of unspeciﬁed knee, lumbar radiculopathy, and left
side lumbago with sciatica. Dr. Ginsberg responded, “yes, see history” when asked whether she
believed the condition was caused or aggravated by an employment activity. She determined that
appellant was totally disabled from June 14 through August 2011. Dr. Ginsberg advised that she
was permanently partially disabled, noting that she had performed light work from August 2011
through the present with restrictions.
In a July 10, 2017 narrative statement, appellant related that, in June 2011, she fell from a
chair and injured her lower back. Thereafter, she experienced constant pain from her injury.
Appellant returned to work with restrictions. She noted that on or about May 1, 2017 she was
asked to work as a lobby director. Appellant contended that by the end of her workday she had
4

Prior to the instant claim, appellant filed a traumatic injury claim (Form CA-1) for a back injury sustained on
June 14, 2011 when she fell against boxes while at work. OWCP accepted her claim, assigned OWCP File No.
xxxxxx061, for lumbar radiculopathy. By decision dated November 21, 2014, it also accepted that appellant sustained
a recurrence of disability from March 14 through May 20, 2013 causally related to her accepted June 14, 2011
employment injury. By decision dated February 11, 2015, OWCP granted her a schedule award for 13 percent
permanent impairment of the left lower extremity. The award covered a period of 37.44 weeks and ran from April 21,
2014 through January 8, 2015.

2

swelling in her knees and more pain than usual in her lower back. She resumed treatment from
her physician who advised her to report this new injury to her employer, stop work, and obtain
treatment for her injury.
Appellant submitted a July 5, 2017 disability certificate from Dr. Henry Hall, a
chiropractor. Dr. Hall indicated that appellant could return to work on October 3, 2017. He noted
that she had been unable to work since July 3, 2017. Appellant had a preexisting lower back injury
and a new complaint of a left knee injury.
By letter dated July 18, 2017, an employing establishment customer services supervisor,
controverted appellant’s claim, contending that she had not established fact of injury.
Dr. Ginsberg, in an August 22, 2017 letter, reevaluated appellant on that date and verified
that she had been treating appellant in her office due to injuries sustained from a “workmen’s
compensation” case. She opined that appellant was unable to engage in full-duty work.
By decision dated September 22, 2017, OWCP denied appellant’s occupational disease
claim, finding that she had failed to submit a rationalized medical opinion explaining how her
diagnosed conditions were causally related to the accepted factors of her federal employment.
Reports dated September 6 through 18, 2017 from Dr. Hall were received. Dr. Hall
provided objective findings on examination and assessed thoracic and lumbar subluxation and low
back pain.
Additional reports dated September 6 through 18, 2017 from Dr. Ginsberg were also
received. Dr. Ginsberg performed applications of high-frequency transcutaneous neurosimulator
(TENS) therapy to treat appellant’s cervical and lumbar pain.
In a letter received by OWCP on October 10, 2017, appellant, through counsel, requested
a telephonic hearing before an OWCP hearing representative.
Reports dated September 20, 2017 through March 5, 2018 from Dr. Ginsberg were
received. Dr. Ginsberg performed further applications of high-frequency TENS therapy to treat
appellant’s cervical and lumbar pain. In attending physician’s reports dated October 24, 2017 and
January 10 and March 6, 2018, she listed June 14, 2011 as the date of injury. Dr. Ginsberg
reexamined her and continued to assess sprain of ligaments of the lumbar spine, subsequent
encounter, unspeciﬁed internal derangement of unspeciﬁed knee, lumbar radiculopathy, and
lumbago with sciatica, unspecified side. She continued to respond “yes, see history” when asked
whether she believed the condition was caused or aggravated by an employment activity.
Dr. Ginsberg advised that appellant was totally disabled from all work. In a letter dated
December 30, 2017, she noted that she first treated appellant for a work-related low back injury
that occurred on June 14, 2011. Dr. Ginsberg related that she subsequently returned to modified
duties as a window clerk where she sold stamps and money orders and received packages. She
was able to sit on a stool and avoid excessive sitting, standing, walking, and heavy lifting.
Dr. Ginsberg related that appellant was doing relatively well until around April/May 2017 when
her job duties were increased to include working as a greeter and customer service representative
in the lobby. Appellant was required to continuously stand for one hour or more per day.
Dr. Ginsberg indicated that she reevaluated appellant for pain management on June 21, 2017.
Appellant claimed that constant standing had not only caused an exacerbation of her low back
injury, but also caused secondary pain in both knees, worse on the left side. Dr. Ginsberg
3

referenced the findings, lumbar and bilateral knee diagnoses, treatment plan, and work restrictions
set forth in her June 21, August 22, and October 24, 2017 examinations. She related that, in her
firm professional opinion, the exacerbation of appellant’s low back injury and new injuries to her
knees were caused by her new job as a greeter and customer service representative. Dr. Ginsberg
opined that constant standing put undue strain on the lumbosacral disc and caused radiculopathy
and sciatica to recur. She further opined that the change in mechanics of the lumbosacral spine
from constant standing put undue pressure on both knees. Dr. Ginsberg indicated that the findings
of bilateral knee magnetic resonance imaging (MRI) scan reports correlated with the positive
physical findings in her evaluations. She advised appellant to refrain from all job activities,
continue chiropractic and physical therapy, and see an orthopedist for treatment and possible
surgery of the secondary injuries to her knees.
Dr. Hall, in reports dated September 20, 2017 through March 6, 2018, again provided
objective findings on examination and reiterated his assessment of thoracic and lumbar subluxation
and low back pain.
MRI scan reports dated November 13, 2017 from Dr. Michael Yuz, a diagnostic
radiologist, revealed an impression of grade 1 degeneration of the posterior horn medial meniscus
and lateral collateral ligament sprain of the right knee and a high-grade partial thickness
acromioclavicular tear and marrow edema of the patella with grade 2 to 3 chondromalacia of the
left knee.
In a report dated December 21, 2017, Dr. David R. Capiola, a Board-certified orthopedic
surgeon, indicated that a left leg ultrasound was negative for deep venous thrombosis. He found
a 2.5 centimeter popliteal cyst.
On March 20, 2018 appellant submitted March 3 and 8, 2018 letters from two coworkers,
describing their lobby work duties.
Appellant also submitted a March 16, 2018 letter from Dr. Ginsberg. Dr. Ginsberg
clarified her December 30, 2017 report by noting that the employing establishment had
acknowledged that appellant was required to stand one hour each day as part of her increased work
duties. She advised that, in her professional opinion, standing continuously for one hour a day
was the direct precipitating cause of the exacerbation of appellant’s low back pain, as well as, the
cause of her bilateral knee derangement.
In subsequent reports dated March 13 through 30, 2018, Dr. Ginsberg performed additional
applications of high-frequency TENS therapy to treat appellant’s cervical and lumbar pain.
Dr. Hall, in reports dated March 13 through April 3, 2018, restated his thoracic and lumbar
assessments.
By decision dated April 10, 2018, an OWCP hearing representative affirmed the
September 22, 2017 decision, finding that Dr. Ginsberg had failed to provide a rationalized opinion
explaining how the diagnosed conditions were caused or aggravated by appellant’s federal
employment factors. She further found that appellant’s claims under OWCP File No. xxxxxx319
and OWCP File No. xxxxxx061 should be administratively combined as her prior work-related

4

back injury had been cross-referenced in the present claim for work-related knee and back
conditions.5
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed;9 (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition;10 and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.11
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

5

OWCP subsequently combined OWCP File Nos. xxxxxx061 and xxxxxx319 with OWCP File No. xxxxxx319
identified as the master file.
6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

Michael R. Shaffer, 55 ECAB 386 (2004).

10

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

11

Beverly A. Spencer, 55 ECAB 501 (2004).

12

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

5

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish knee and back
conditions causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted medical evidence, including a series of reports
from her physician, Dr. Ginsberg. In her reports, Dr. Ginsberg indicated that appellant reported a
history that she was employed as a window clerk at the employing establishment and that she
always suffered from low back pain radiating to her left hip and left leg, but recently she
experienced increased pain. She also indicated that appellant reported having secondary pain in
both knees, mainly on the left side. Dr. Ginsberg discussed findings on examination and diagnosed
sprain of ligaments of the lumbar spine, subsequent encounter; unspecified internal derangement
of unspecified knee; lumbar radiculopathy; and left side lumbago with sciatica. She performed
high-frequency TENS therapy to treat appellant’s lumbar and cervical pain and restricted appellant
from a return to work.
Dr. Ginsberg, in her October 24, 2017 and January 10 and March 6, 2018 reports,
responded “yes, see history” with regard to whether she believed that the condition was caused or
aggravated by an employment activity. The Board has held, however, that when a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, without
explanation or rationale, that opinion has little probative value and is insufficient to establish a
claim.14
In reports dated December 30, 2017 and March 16, 2018, Dr. Ginsberg opined that an
exacerbation of appellant’s June 14, 2011 employment-related back condition and her new knee
injuries had been caused by her employment duties as a greeter and customer service
representative. She noted that, following appellant’s accepted June 14, 2011 employment-related
back injury, appellant returned to work in a modified-duty window clerk position, which allowed
her to perform her duties while sitting on a stool to avoid excessive sitting, standing, walking, and
heavy lifting. Dr. Ginsberg further noted, however, that, in April/May 2017, appellant was
assigned increased work duties as a greeter and customer service representative in the lobby, which
required her to continuously stand for one hour or more a day. She explained that constant standing
put undue strain on the lumbosacral disc and caused radiculopathy and sciatica to recur.
Dr. Ginsberg further explained that the change in mechanics of the lumbosacral spine from
constant standing put undue pressure on both knees. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how a given medical condition/disability was related to employment factors.15 While Dr. Ginsberg
generally noted that standing for one hour or more per day caused strain resulting in radiculopathy
and put pressure on both knees, this explanation does not provide sufficient rationale to explain
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

14

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 340 (2003).

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).

6

the specific mechanism of injury. A mere conclusory opinion provided by a physician without the
necessary rationale explaining how and why the incident or work factors were sufficient to result
in the diagnosed medical condition is insufficient to meet a claimant’s burden of proof to establish
a claim.16
Appellant also submitted a report dated December 21, 2017 by Dr. Capiola who indicated
that a left leg ultrasound was negative for deep venous thrombosis and who found a 2.5 centimeter
popliteal cyst. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.17
This report, therefore, is insufficient to establish appellant’s claim.
Appellant also submitted a series of chiropractic treatment reports completed by Dr. Hall,
who noted that she had a preexisting lower back injury and a new complaint of a left knee injury.
Section 8101(2) of FECA provides that the term physician, as used therein, includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation, as demonstrated by x-ray to exist and subject
to regulation by the Secretary.18 These reports of Dr. Henry are of no probative value on the
relevant issue of causal relationship as he is not considered a physician as he did not diagnose a
subluxation based on the results of an x-ray.19
The record also contains diagnostic testing reports including the results of a November 13,
2017 MRI scan. However, diagnostic studies lack probative value as they do not address whether
the employment incident caused any of the diagnosed conditions.20 Therefore, such reports are
insufficient to establish appellants claim.
Finally, appellant submitted statements from coworkers as to her employment duties.
These statements are irrelevant to the issue of causal relationship and, additionally, lay persons
such as coworkers are not competent to render a medical opinion.21
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish knee and back conditions causally related to the accepted factors of her
federal employment. Appellant therefore has not met her burden of proof.
On appeal counsel contends that appellant has submitted sufficient medical evidence to
establish causal relationship and therefore her claim should be accepted. For the reasons explained
16

J.D., Docket No. 14-2061 (issued February 27, 2015).

17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

See 20 C.F.R. § 10.311; M.B., Docket No. 17-1378 (issued December 13, 2018).

19

See 5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulation by the secretary. See M.B., Docket No. 17-1378 (issued December 17, 2018);
Merton J. Sills, 39 ECAB 572, 575 (1988).
20

See J.S., Docket No. 17-1039 (issued October 6, 2017).

21

See B.R., Docket No. 17-1661 (issued January 4, 2018); James A. Long, 40 ECAB 538 (1989).

7

above, the Board finds that the evidence of record is insufficient to meet appellant’s burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish knee and back
conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 3, 2019
Washington, DC

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

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

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

8