United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Columbia, SC, Employer
__________________________________________

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

Docket No. 13-728
Issued: September 9, 2014

Case Submitted on the Record

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

JURISDICTION
On January 22, 2013 appellant filed a timely appeal from the November 16, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of total
disability for work commencing June 28, 2007.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, subsequent to OWCP’s November 16, 2012 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. James C. Campbell, 5
ECAB 35 (1952); 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case has previously been on appeal before the Board.3 In the August 2, 2011
decision, the Board found that appellant’s case was not in posture for decision with regards to
whether she had any additional shoulder or cervical conditions caused or aggravated by her
October 2, 2005 work injury.
The record reflects that, after her October 2, 2005 work injury, appellant was returned to
full-time modified duty as a rehabilitation/restorative and maintenance staff nurse on
June 11, 2007. This was a permanent position based upon the recommendations provided by an
impartial medical examiner, Dr. Alfred Dawson, a Board-certified orthopedic surgeon. In an
April 18, 2007 report, Dr. Dawson had indicated that appellant had reached maximum medical
improvement and could work full time, with restrictions on lifting no more than 15 pounds more
than two hours a day, pushing and pulling limited to two hours a day up to 30 pounds, reaching
limited to two hours a day, no reaching above the shoulder and no backing up to operate a motor
vehicle at work. He released her to work four hours a day for the first month as “a form of work
hardening,” but opined that she was capable of this restricted duty full time. Appellant did not
begin working full time and on July 27, 2007 filed a claim for recurrence of total disability for
“June 25, 2007 to the present.”
In a March 25, 2009 decision, OWCP denied appellant’s claim for a recurrence of total
disability finding that the medical evidence was insufficient.
After development of appellant’s request to expand her accepted conditions, in a
May 7, 2012 decision, OWCP expanded appellant’s claim to include permanent aggravation of
cervical spondylosis and stenosis and permanent aggravation of right shoulder impingement
syndrome and bursitis, but denied the claim for cervical herniated disc. By letter dated
September 10, 2012, appellant requested “a formal review” regarding her previous Form CA-7
claims for compensation for disability dating to her original recurrence date of June 28, 2007.
OWCP noted that a reconsideration request filed in 2012 from a March 25, 2009 decision
would normally be found untimely. However, as it had accepted additional conditions since that
decision had issued, it undertook a merit review of the medical evidence. The medical evidence
in the record relevant to appellant’s disability status is summarized below.
In a June 14, 2007 report, Dr. Stacy Gajewski, Board-certified in family medicine and
appellant’s treating physician, had noted that appellant had returned to work for four hours a day.
She indicated that appellant did “okay” on the first day, had some problems on the second day
and had a severe increase in pain on the third day. Dr. Gajewski indicated that it was probably
because appellant had to “push open heavy doors.” She noted that appellant was depressed and
“any type of work aggravates her pain to the point of being intolerable.” Dr. Gajewski diagnosed
neck and shoulder pain from her work that “drastically” worsened after returning to work. She
advised that appellant “probably should start working on disability since any amount of work
made her pain much worse and puts her at risk for chronic pain syndrome.” In a July 9, 2007
3

Docket No. 10-2330 (issued August 2, 2011). In this prior decision, the Board specifically noted that it did not
have jurisdiction over the recurrence claim as that issue was not addressed in the decisions on appeal to the Board.

2

disability certificate, Dr. Gajewski noted that appellant was under her care from June 28, 2007 to
“indefinitely.”
In a June 5, 2009 report, Dr. Gajewski explained that, once appellant returned to light
duty in June 2007, the symptoms became worse and she had to quit work on June 28, 2007. She
advised that appellant had neck and shoulder pain which she did not have before the injury.
Dr. Gajewski explained that doctors initially were more concerned about the neck but the
shoulder pain began on the date of the injury and was consistent with her actions. She indicated
that, when appellant returned to work, the repetitive action caused the neck and shoulder to
worsen. Dr. Gajewski indicated that appellant would not ever return to the type of work she was
doing. Furthermore, appellant would have to limit the use of the right shoulder and neck as
repetitive movements would cause the condition to worsen.
On June 15, 2009 OWCP referred appellant to Dr. James A. Loging, a Board-certified
orthopedic surgeon, for a second opinion on whether additional conditions were causally related
to her employment. In an August 12, 2009 report, Dr. Loging opined that appellant’s neck sprain
and aggravation of her cervical degenerative disease remained work related and was not due only
to a natural progression of her degenerative condition. He advised that she continued to have
residuals of chronic pain, limited strength and mobility from her injury and advised that she was
not able to perform her regular duties due to her symptoms. Dr. Loging indicated that
appellant’s neck symptoms could also be due to a herniated cervical disc. He recommended a
magnetic resonance imaging (MRI) scan of the cervical spine and indicated that her shoulder
condition was potentially part of her initial injury as her symptoms seemed to start at that time.
As to disability, Dr. Loging noted, “I do not feel that [appellant] is able to perform her duties as a
position of nurse due to her still residual pain, limited mobility and weakness that she has.”
Appellant submitted a May 5, 2010 report from Dr. James Bethea, a Board-certified
orthopedic surgeon, to whom she was initially referred for a second opinion examination and
later sought treatment. Dr. Bethea opined that pushing and shoving a large bulky medication cart
aggravated her tendinosis, arthritis and bursitis in her shoulders. He advised that appellant was
not able to work since her October 2005 injury and needed further medical care for her
shoulders.
To comply with the Board’s order to further develop the medical evidence as to whether
appellant’s accepted conditions should be expanded,4 OWCP had referred appellant to
Dr. Joseph Estwanik, a Board-certified orthopedic surgeon, for a second opinion. Dr. Estwanik
was asked to determine whether appellant’s herniated cervical disc and right shoulder condition
were related to her work injury. Although not specifically requested to determine appellant’s
ability to work, he stated, “Soft tissue injuries would allow her recommended return to work in
June 2007. [Appellant’s] claimed symptoms and self-limiting behavior is far in excess of the
pathology objectively confirmed.”

4

Supra note 2. The Board had remanded the case to OWCP to obtain a supplemental report from the previous
second opinion physician but as he demanded prepayment, contrary to OWCP procedures, OWCP sought another
second opinion physician.

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On October 24, 2011 OWCP requested clarification from Dr. Estwanik regarding the
extent of appellant’s disability and whether her right shoulder condition was aggravated on
October 2, 2005. In a November 16, 2011 supplemental report, Dr. Estwanik opined that the
aggravation was temporary and would have allowed appellant to return to work in June 2007.
He also explained that the assessment of bilateral shoulder pain and intermittent arm pain
confirmed that no significant diagnostic category was confirmed or proposed.
On February 24, 2012 OWCP referred appellant to Dr. William Lehman, Jr., a Boardcertified orthopedic surgeon, for an impartial medical evaluation to resolve the conflict in
opinion between the second opinion physician, Dr. Estwanik and the treating physicians,
Drs. Gajewski and Bethea, regarding whether appellant’s shoulder and cervical conditions
remained due to the original injury. Although he was not selected to resolve a conflict regarding
appellant’s work capacity, he was asked to respond to the question: “Does Ms. Foister have any
work limitations as a result of the October 2, 2005 work injury?”
In his report dated March 27, 2012, Dr. Lehman noted appellant’s history of injury and
treatment and examined appellant. He provided findings and determined that the left-sided
herniated disc was unrelated to her claim. However, the right shoulder impingement syndrome
was related to the 2005 work injury and represented an aggravation of an underlying condition of
acromioclavicular (AC) hypertrophy and subacromial stenosis. Dr. Lehman advised that the
neck and right shoulder conditions had not changed since the 2005 injury and continued to
require ongoing likely permanent restrictions in functional activities. Regarding appellant’s
work status, he advised that he did not find a specific conflict regarding whether she was
completely disabled. Dr. Lehman noted that Dr. Gajewski did not believe that appellant could
return to work as a nurse but she did not indicate that appellant was completely disabled. He
indicated that appellant should be able to work in some capacity once suitable treatment was
completed.
In a letter dated April 18, 2012, OWCP requested clarification from Dr. Lehman
regarding rationale to support his opinion that appellant’s cervical herniated disc was unrelated
to the October 2, 2005 injury. In an April 21, 2012 response, Dr. Lehman explained that an MRI
scan from August 16, 2006, which was after the October 2, 1995 work injury, revealed a
left-sided cervical disc herniation. He opined that there were never any significant left-sided
radicular symptoms or evidence of nerve impingement, which led him to question the
significance of the herniation. There was no reference to appellant’s ability to work.
By decision dated November 16, 2012, OWCP denied modification of its March 25, 2009
decision, which denied her claim for compensation for a recurrence of total disability
commencing June 28, 2007. It found that Dr. Lehman’s reports were sufficient to serve as the
weight of the evidence on the recurrence issue and determined that appellant had failed to
establish a recurrence of total disability as of June 28, 2007.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment

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that caused the illness. This term also means an inability to work that takes place when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical limitations.5
When an employee, who is disabled from the job he or she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establish that he or she can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty requirements.6
In situations where there exists a conflict in medical opinion and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled
to special weight.7
ANALYSIS
The Board finds that Dr. Lehman was not obtained to resolve a conflict on whether
appellant was totally disabled as of June 28, 2007. Dr. Lehman was asked to resolve the conflict
of whether appellant’s shoulder and cervical conditions were due to the original injury.
Therefore, he is not an independent medical specialist for the recurrence issue and his report does
not carry special weight.8
The Board has carefully reviewed the medical evidence in the record on the issue of
disability and finds that appellant has failed to meet her burden of proof to establish total
disability commencing June 28, 2007.
Appellant’s attending physician, Dr. Gajewski, opined that appellant could not perform
the duties of her modified duty nurse position for eight hours a day, beginning on June 28, 2007
and indefinitely. She attributed appellant’s disability to a severe increase in pain from having to
push heavy doors. Dr. Gajewski noted that appellant was depressed and “any type of work
aggravates her pain to the point of being intolerable.” She further indicated that appellant would
not ever return to the type of work she was doing. Furthermore, appellant would have to limit
the use of the right shoulder and neck as repetitive movements would cause the condition to
worsen. While Dr. Gajewski’s reports were generally supportive of appellant’s inability to work,
they were speculative as to whether she was totally disabled for work. She provided no medical
reasoning to explain how particular work activities caused or aggravated her condition to render
5

20 C.F.R. § 10.5(x).

6

Terry R. Hedman, 38 ECAB 222 (1986).

7

Guiseppe Aversa, 55 ECAB 164, 167 (2003).

8

See Leonard Lothlen, 37 ECAB 314, 321 (1986); Pierre W. Peterson, 39 ECAB 955, 960 (1988); L.T., Docket
No. 09-38 (issued July 7, 2009).

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her totally disabled and suggested that some work would be feasible with the appropriate
restrictions. The Board has held that where a physician’s opinion is speculative it lacks
probative value.9
Further, Dr. Gajewski suggested that appellant “probably should start working on
disability since any amount of work made her pain much worse and puts her at risk for chronic
pain syndrome.” The Board has consistently held that fear of future injury is not compensable.10
Appellant began treating with Dr. Bethea, who opined that pushing and shoving a heavy
cart aggravated her tendinosis, AC arthritis and bursitis in her shoulders. Dr. Bethea indicated
that she was not able to work since her injury and was in need of medical care. He did not
support this conclusory opinion with any rationalized description of the employment duties or
why they would have prevented appellant’s from returning to work. Medical reports consisting
solely of conclusory statements without supporting rationale are of little probative value. To be
of probative value, Dr. Bethea must provide rationale for the opinion reached. Where no such
rationale is present, the medical opinion is of diminished probative value.11
Dr. Estwanik, the second opinion physician, opined that appellant’s right shoulder
condition, her cervical degenerative disc disease and the cervical disc disease at C5-6 were
aggravated by her work injury. However, he explained the aggravation was temporary and that
she could have returned to work in June 2007 as recommended.
Dr. Loging discussed disability in his August 12, 2009 report noting, “I do not feel that
she is able to perform her duties as a position of nurse due to her still residual pain, limited
mobility and weakness that she has.” His opinion was not prohibiting appellant from working at
any position, but noted only that she could not perform the duties of the nurse position. At the
time of appellant’s claim of recurrence, she was working in a limited-duty position that met her
physician’s restrictions at that time.
Dr. Lehman examined appellant on March 27, 2012 to resolve the conflict of medical
evidence regarding the nature and extent of appellant’s injury-related conditions. He found that
the right shoulder impingement syndrome was related to the work injury in 2005 and represented
an aggravation of her underlying condition of AC hypertrophy and subacromial stenosis.
Regarding disability, Dr. Lehman noted that he did not find a specific conflict regarding whether
appellant was completely disabled. He stated that Dr. Gajewski did not believe that appellant
could return to work as a nurse, but she did not indicate appellant was completely disabled. In
his follow-up report of April 21, 2012, Dr. Lehman reiterated his findings to his March 27, 2013
report.
9

Rickey S. Storms, 52 ECAB 349, 352 (2001) (the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty but must not be speculative or equivocal. The opinion should be expressed in
terms of a reasonable degree of medical certainty); see also D.D., 57 ECAB 734, 739 (2006).
10

See Calvin E. King, 51 ECAB 394, 401 (2000).

11

T.M., Docket No. 08-975 (issued February 6, 2009); William C. Thomas, 45 ECAB 591, 594 (1994) (a medical
report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale).

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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 their disability and
entitlement to compensation.12
The Board finds that appellant has failed to provide a well-rationalized medical opinion
on the issue of whether she had established a recurrence of total disability for work commencing
June 28, 2007. OWCP therefore properly denied the recurrence claim.
On appeal, appellant argued that the reports from Dr. Gajewski supported her disability.
However, Dr. Gajewski’s reports were insufficiently rationalized to meet her burden of proof.
Appellant may submit evidence or argument to OWCP with a written request for
reconsideration 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 did not meet her burden of proof to establish a recurrence
of disability for work commencing June 28, 2007.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See Amelia S. Jefferson, 57 ECAB 183, 188 (2005); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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Appearances:
David J. Holdsworth, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1694
Issued: May 23, 2011

Case Submitted on the Record

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

JURISDICTION
On June 14, 2010 appellant filed a timely appeal from the March 23, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was disabled
during the periods October 15 to November 13, 2006 and December 26, 2006 to March 3, 2007
as a result of his employment-related condition.
FACTUAL HISTORY
On October 22, 2002 appellant, then a 36-year-old electrical equipment repairman, filed a
traumatic injury claim for headaches and nausea. During the week of October 15, 2002 the burn
1

5 U.S.C. § 8101 et seq.

off oven leaked smoke and sent chemical fumes into the air which caused him to feel light
headed.2 On March 25, 2003 appellant was placed in a term position as a laborer in a different
building from where the injury took place. He continued this laborer position until September 7,
2003 when he was placed in a term detail as a clerk. Appellant returned to his position as an
electrical equipment repairer on January 4, 2004 and worked until February 22, 2004, when he
voluntarily accepted a position as a supply technician. On April 16, 2006 he accepted a position
as a management and program assistant in an office setting.
On April 13, 2006 appellant claimed a recurrence of disability citing lack of
concentration, headache, shortness of breath and fatigue. He related his condition to his work on
July 1, 2003 when he had a general decline in overall health and the recurrence of asthma.
Appellant stopped work on November 9, 2005. The Office developed the claim as a new
occupational disease. On October 10, 2006 it accepted the claim for extrinsic asthma. Appellant
worked approximately three to four hours a day with restrictions. He retired from the Federal
Government effective May 24, 2008.
On November 13, 2006 appellant filed a claim for 91 hours of intermittent wage loss for
the period October 15 to November 13, 2006. In a November 20, 2006 letter, the Office advised
him that the case record lacked objective medical evidence addressing how the claimed disability
was related to his accepted condition.
The Office received a July 28, 2006 work status evaluation from a registered nurse
indicating that appellant was released to work half days with permanent restrictions from
chemical exposure. In a November 27, 2006 work status evaluation, Dr. Douglas Fuller, Boardcertified in occupational medicine, indicated “physician release from work [October 31 to
November 21, 2005] and as needed from [January to December] 2006.”
In a December 13, 2006 report, Dr. Casey L. Stelter, a Board-certified family
practitioner, noted that appellant had been diagnosed with polymyositis and was being followed
in a rheumatology clinic. Pulmonary testing from September 28, 2006 was consistent with a
mild restrictive and obstructive pattern. Dr. Stelter noted that appellant was under a
pulmonologist’s care for the past year for lung disease. He opined it was plausible that
appellant’s pulmonary dysfunction was due to his workplace exposure. Dr. Stelter noted that
appellant was working half days due to his condition and that he was placed on work restrictions
by his pulmonologist in July 2006. He stated that appellant would need time off for
exacerbations and medical visits.
By decision dated December 22, 2006, the Office denied appellant’s claim for wage loss
from October 15 to November 13, 2006.

2

This was filed under claim number xxxxxx563 which has been doubled with the claim that is before the Board.
Claim number xxxxxxx563, was not initially developed by the Office which administratively paid medical bills up
to $1,500.00. The Office accepted that appellant was exposed to increased levels of carbon monoxide and carbon
dioxide. It also found that he may have been exposed to alipathic naptha, xylenes, n-butyl acetate, acetone,
isopropanal and toluene as these substance were noted in June 5, 2003 testing that occurred about three months after
his duty station changed.

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Appellant submitted medical evidence, including a January 31, 2007 chest x-ray. In a
January 30, 2007 report, Dr. Fuller stated that appellant presented with reactive airway disease,
hypertension, fatigue, typical polymyositis (type 1), asthma extrinsic and polymyositis in other
collagen vascular disease. He released appellant to work without limitations.
Reports were also received from Dr. Gary J. Alexander, a pulmonologist. In a
January 31, 2007 report, Dr. Alexander noted an impression of asthma with worsening symptoms
while, in a January 31, 2007 work capacity evaluation, he advised that appellant could only work
three to four hours daily due to extrinsic asthma. In a March 19, 2007 report, he stated that
appellant had been diagnosed with polymyositis and had symptoms of asthma/reactive airways
disease. Dr. Alexander described the chemicals appellant was exposed to at work and opined
that the work exposure caused appellant’s symptoms as he had no symptoms before his
exposure. He stated that appellant worked half time because of his medical condition from
March 2006 to January 30, 2007 and restricted him to working only three to four hours a day
from January 31, 2007 to the present. Dr. Alexander advised that there may be days when
appellant missed work due to his lung disease. He further opined that, due to the chemical
exposure at work, the duration of appellant’s illness would depend on how his body healed.
Appellant subsequently filed a claim for compensation for 268 intermittent hours of wage
loss for the period December 26, 2006 to March 3, 2007. The Office advised him, in a
March 16, 2007 letter, that the record lacked sufficient medical evidence to support disability for
the period claimed and informed him of the evidence needed to support his disability claim.
To clarify appellant’s disability status, the Office referred him to Dr. William T. Sadler, a
Board-certified pulmonologist, for a second opinion. Dr. Sadler examined appellant on
March 13, 2007. In an April 3, 2007 report, he noted the history of injury, his review of the
medical record and findings on examination. Dr. Sadler indicated that, while appellant was no
longer exposed to carbon monoxide, his asthma persisted and a neurologist would be better able
to determine whether there were lingering effects of carbon monoxide exposure. He opined that,
assuming appellant had no more exposure to airborne chemicals, he could return to work as an
electrician. However, Dr. Sadler stated that significant unresolved questions remained with
respect to whether he had poliomyelitis, the etiology of his fatigue and whether his lifting
restriction would preclude his work as an electrician. The Office sent additional questions to
Dr. Sadler on March 30, 2007 along with authorization to perform diagnostic testing necessary to
answer the questions set forth. However, Dr. Sadler never responded to the Office’s request.
In an April 26, 2007 report, Dr. Alexander confirmed appellant’s polymyositis diagnosis
and that he continued to be symptomatic from asthma. He indicated that appellant’s most recent
chest x-ray was January 31, 2007 and pulmonary function testing was October 24, 2006.
Dr. Alexander stated that appellant’s condition would wax and wane in its severity from a
respiratory standpoint and that his lung disease was expected to be persistent and long term. He
stated that he was not aware of any nonwork factors or exposures that might be aggravating
appellant’s condition and opined his lung disease was not worsening because of his current job.
By decision dated May 24, 2007, the Office denied modification of the December 22,
2006 decision.

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In a September 4, 2007 progress report, Dr. Alexander stated that appellant was in no
acute distress and that his lungs were clear without wheezes, rhonchi or crackles.
In September 5 and 6, 2007 reports, Dr. Jamilé S. Woods, a Board-certified
pulmonologist and Office referral physician, indicated that further testing was necessary before
she could respond to the Office’s questions on appellant’s disability status. Additional testing
took place on September 17, 2007 and included a methacholine challenge test and
cardiopulmonary exercise testing. In an October 11, 2007 addendum, Dr. Woods indicated that
both the methacholine challenge test and cardiopulmonary exercise test were unreliable due to
appellant’s lack of cooperation. She concluded that appellant’s dyspnea was of unknown
etiology. On November 5, 2007 the Office asked Dr. Alexander to comment on Dr. Woods
report. No response was received from Dr. Alexander.
In a January 9, 2008 decision, the Office denied appellant’s claim for intermittent wageloss compensation from December 26, 2006 through March 3, 2007.
On January 11, 2008 appellant’s attorney requested reconsideration of the Office’s
decisions denying appellant’s wage-loss claims for the periods October 15 through
November 13, 2006 and December 26, 2006 to March 3, 2007.
In a January 3, 2008 report, Dr. Alexander stated that he treated appellant for shortness of
breath and difficulty breathing which were severe and limited his ability to perform daily
activities. He opined that appellant’s symptoms were related to exposures that occurred at the
workplace. Dr. Alexander also noted that appellant had significant symptoms of muscle
inflammation. He stated that appellant was limited in his ability to work due to his symptoms.
Dr. Alexander stated on many occasions, appellant was only able to work three to four hours a
day and, at other times, he was unable to work at all. Additional treatment notes from him were
submitted along with a January 23, 2008 functional capacity evaluation
In a January 29, 2008 report, Dr. Richard E. Kanner, a Board-certified pulmonologist,
diagnosed anxiety attacks, possible neuromusculoskeletal disorder and possible asthma.
In two separate March 12, 2008 decisions, the Office denied appellant’s request for
reconsideration of its January 9, 2008 decision and it denied modification of its May 24, 2007
decision.
On March 12, 2009 appellant’s attorney requested reconsideration from the two
March 12, 2008 decisions denying wage loss. In a March 13, 2009 letter, he argued that the
claim should be accepted for additional diagnosed conditions. Counsel further argued that the
evidence reflected that appellant should be compensated for all periods for which he has been
unable to work, namely, from October 15, 2006 to May 26, 2007 and ongoing. He outlined
several actions that took place regarding appellant’s claim between January 9 and
March 12, 2008. A copy of a March 10, 2009 chest x-ray report was submitted along with
additional medical evidence. In a March 10, 2009 report, Dr. Alexander opined that appellant
was disabled because of shortness of breath, asthma and chronic pain. On March 12, 2009 he
opined that appellant was disabled from his respiratory symptoms, which were precipitated from
exposure at his workplace and significant myalgias with muscle twitching and a severe rash.

4

In a March 13, 2009 report, Dr. Michael R. Martineau, a Board-certified dermatologist,
stated that appellant had been under his care for a hypersensitivity reaction over the past few
months and had a documented history of significant chemical exposure. He noted the results of a
biopsy and patch testing and stated that the distribution and characteristics of the lesions were
consistent with an internal hypersensitivity reaction which he opined was caused by appellant’s
history of chemical exposure. Dr. Martineau advised that other etiologies were unlikely.
In an April 22, 2009 report, Dr. Daniel Hendricks, a chiropractor, noted that appellant
believed his muscle spasm and inflammation in his neck and mid and low back were the result of
toxic exposure from his work. He stated that he treated appellant since 2003 and that his muscle
spasm and tension had increased over the years with less relief from treatment.
A June 30, 2008 report from Layton Family Medicine indicated that appellant had
increasing asthma problems for about three weeks and noted a new puppy in the home.3 Medical
reports from Dr. Douglas L. Powell, a Board-certified dermatologist, dated February 18, 20, 23
and 25, 2009 pertain to a rash on appellant’s legs. Dr. Powell diagnosed dermatitis in his
February 25, 2009 report. He indicated in his February 23, 2009 report that patch testing was
done and there was no objective data to prove that the rash was caused by his workplace
environment.
By decision dated June 15, 2009, the Office denied modification of its previous decisions
denying wage-loss compensation from October 15 to November 13, 2006 and December 26,
2006 to March 3, 2007.4
On January 18, 2010 appellant requested reconsideration. In a January 16, 2010
statement, his attorney requested that the Office expand the scope of the accepted conditions and
approve intermittent wage loss. Counsel also requested that the Office refer appellant to a
toxicologist. A March 10, 2009 chest x-ray report and a November 16, 2009 computerized
tomography scan of the chest were submitted along with additional medical reports.
In an August 11, 2009 report, Dr. Milan Djurich, a Board-certified physiatrist and pain
specialist, reviewed the medical record and set forth his examination findings. He opined that,
while he was not a toxicologist, appellant sustained injuries far beyond his lung tissues as a result
of his work-related chemical exposure, which rendered him unable to work. Dr. Djurich
recommended appellant be evaluated by an industrial toxicologist.
In an August 26, 2009 report, Dr. Alexander stated that appellant was exposed to a
number of chemicals in his workplace and developed asthma, a rash and severe arthralgias that
became debilitating. An impression of shortness of breath, asthma and chronic pain were
provided. Dr. Alexander opined that appellant was disabled because of his current symptoms.

3

The signature on the report is illegible and, thus, it is unclear whether a physician rendered the report.

4

In a June 16, 2009 letter, the Office addressed several points which appellant raised in his reconsideration
request.

5

By decision dated March 23, 2010, the Office denied modification of its previous
decisions.5
LEGAL PRECEDENT
The term disability as used in the Act means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.6 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.7 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.8 The Board
will not require the Office to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employee’s to self-certify their disability and entitlement to
compensation.9
ANALYSIS
The Office accepted that appellant sustained extrinsic asthma due to factors of his federal
employment. The record reflects appellant was removed from the source of his exposure on
March 25, 2003 when he was moved to a different building. There is no indication that he was
reexposed to the source of his initial exposure from March 25, 2003 until he retired effective
May 24, 2008. In 2006, appellant claimed compensation for intermittent wage loss for the
periods October 15 to November 13, 2006 and December 26, 2006 to March 3, 2007. The Office
denied his claims finding that the medical evidence did not establish his disability for the periods
claimed. The Board finds that appellant has not provided sufficient medical evidence to
establish his claim.
In a March 19, 2007 report, Dr. Alexander stated that appellant worked half time because
of his medical condition from March 2006 to January 30, 2007. He also indicated in a
January 31, 2007 work capacity evaluation and a March 19, 2007 report, that appellant was
restricted to working only three to four hours a day as of January 31, 2007 because of his
extrinsic asthma. The Board finds that Dr. Alexander did not provide sufficient medical
reasoning to explain why appellant was unable to work for the specific periods at issue due to the
accepted extrinsic asthma condition or why he was restricted to working only three to four hours

5

The Office advised that a separate decision would be issued with regard to the issue of expanding the scope of
the accepted conditions.
6

Paul E. Thams, 56 ECAB 503 (2005). See 20 C.F.R. § 10.5(f).

7

Paul E. Thams, id.; W.D., Docket No. 09-658 (issued October 22, 2009).

8

Id.

9

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

6

a day as of January 31, 2007.10 While Dr. Alexander noted that there may be days when
appellant missed work due to his lung disease, he did not provide sufficient explanation in
support of appellant’s disability for the claimed periods whether it corresponded to the dates
appellant claimed or how appellant’s accepted extrinsic asthma caused disability in 2006 or 2007
after workplace exposure ended in March 2003.
In an April 26, 2007 report, Dr. Alexander advised that he was not aware of any factors
or exposures, either work or nonwork related, that might be aggravating appellant’s condition.
He provided no explanation as to why appellant’s respiratory condition would wax and wane in
its severity so as to partially or totally disable him during the claimed period and why any
disability would be due to appellant’s employment. Dr. Alexander stated in his January 3, 2008
report that appellant’s symptoms limited his ability to work; but provided no medical reasoning
to explain why appellant was unable to work for the specific periods at issue due to his accepted
condition. He generally supported a causal relationship between appellant’s exposure to
workplace chemicals and the development of a rash and arthralgias; but the Office has not
accepted these conditions as employment related. Furthermore, Dr. Alexander did not
sufficiently address why appellant was unable to work for specific periods claimed or how any
diagnosed condition or symptom was caused or aggravated by the accepted condition or work
factors. No other reports from him specifically attributed any period of disability to the accepted
condition. Dr. Alexander did not offer adequate medical reasoning in support of the periods of
disability claimed.
In his November 27, 2006 work status evaluation, Dr. Fuller released appellant from
work as needed from January to December 2006. However, he did not specifically attribute any
period of disability to the accepted condition or offer a medical explanation why appellant would
need to be released from work due to the accepted condition. Furthermore, Dr. Fuller released
appellant to work without limitations on January 30, 2007.
Dr. Stelter opined it was plausible that appellant’s pulmonary dysfunction was due to his
workplace exposure. In his December 13, 2006 report, he stated that appellant would require
time off for exacerbations and follow-up visits with his providers. However, the record does not
show that any of the time claimed during the claimed periods were for medical visits.
Additionally, Dr. Stelter did not specifically attribute any period of disability to the accepted
condition or offer a reasoned medical explanation as to why particular workplace exposures
caused any disability during the claimed periods.
While Dr. Djurich opined that appellant sustained injuries far beyond his lung tissues as a
result of his work-related chemical exposure which caused disability, he did not specifically
attribute any period of disability to the accepted extrinsic asthma or otherwise explain the
reasons why appellant’s workplace exposure caused disability during the claimed period.
The reports from Dr. Kanner, Dr. Martineau and Dr. Powell are insufficient to establish
appellant’s claim as they offered no opinion on disability during the claimed period. The other
medical evidence of record, such as diagnostic testing, is of no probative value as it does not
offer an opinion on disability during the claimed period. The Office also received an April 22,
10

Deborah L. Beatty, 54 ECAB 340 (2003).

7

2009 report from Dr. Hendricks, a chiropractor. A chiropractor is considered a physician for
purposes of the Act only where he diagnoses and treats a spinal subluxation shown by x-ray.11
As Dr. Hendricks did not diagnose a spinal subluxation based on an x-ray, he is not a physician
under the Act and his reports do not constitute probative medical evidence. Likewise, records
from other nonphysicians, such as nurses, are insufficient to establish the claim.12
As the medical evidence provides insufficient reasoning to establish that appellant’s
claimed disability is related to his accepted extrinsic asthma, appellant has not met his burden of
proof to establish his claim.
CONCLUSION
The Board finds that appellant did not establish disability for work for the periods
claimed.

11

5 U.S.C. § 8101(2) provides that 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. See Merton J. Sills, 39 ECAB 572, 575 (1988).
12

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that
medical opinion, in general, can only be given by a qualified physician).

8

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 23, 2010 is affirmed.
Issued: May 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
White City, OR, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-92
Issued: April 28, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On October 22, 2013 appellant filed a timely appeal from the April 29, 2013 decision of
the Office of Workers’ Compensation Programs1 (OWCP). The Board assigned Docket
No. 14-92.
In its April 29, 2013 decision, OWCP refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error. It indicated that her request for reconsideration of an
April 4, 2012 OWCP decision denying her work-related emotional condition claim2 was

1

Appellant inadvertently indicated that she was appealing an April 22, 2013 decision of OWCP, but the record
contains a “corrected” version of that decision dated April 29, 2013. OWCP issued the corrected version on
April 29, 2013 because it wanted to correct a statement in the earlier decision indicating that her reconsideration
request was received on April 3, 2013, rather than on April 4, 2013.
2

On September 14, 2010 appellant, then a 46-year-old social worker, filed an occupational disease claim alleging
that she sustained an emotional condition due to harassment from supervisors and coworkers.

untimely filed because it was received on April 4, 2013 and therefore was not received within
one year of April 4, 2012.3
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 The one-year period begins
on the date of the original decision, and an application for reconsideration must be received by
OWCP within one year of the date of its decision for which review is sought for merit decisions
issued on or after August 29, 2011.7 However, OWCP may not deny an application for review
solely on the grounds that the application was not timely filed. When an application for review
is not timely filed, it must nevertheless undertake a limited review to determine whether the
application establishes “clear evidence of error.”8
In its April 29, 2013 decision, OWCP improperly determined that appellant filed an
untimely request for reconsideration of its April 4, 2012 decision. Appellant’s reconsideration
was received by OWCP on April 4, 2013, a period of 365 days after its April 4, 2012 decision.
Therefore, it was received precisely within one year. Because OWCP improperly determined
that her reconsideration request was untimely, it improperly applied the clear evidence of error
standard for reconsideration requests. The April 29, 2013 decision of OWCP must be set aside
and the case remanded to OWCP in order to perform a review of appellant’s reconsideration
request under the standards for timely reconsideration requests, to be followed by the issuance of
an appropriate decision.

3

Appellant’s reconsideration request was entered into the Integrated Federal Employees’ Compensation System
on April 4, 2013 and therefore is considered to have been received on that date. See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (October 2011).
4

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

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

2

IT IS HEREBY ORDERED THAT the April 29, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: April 28, 2014
Washington, DC

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

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

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

3


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

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

Docket No. 10-1477
Issued: March 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2010 appellant filed a timely appeal from an April 14, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act 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 met her burden of proof to establish that she sustained an
injury to her back causally related to factors of her employment.
FACTUAL HISTORY
On June 25, 2009 appellant, then a 53-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed back pain and spasms as a
result of employment activities due to a prior accepted condition. She first became aware of the

pain in her back and realized she had an employment-related injury on February 27, 2009.1
Appellant stopped work on February 27, 2009 and returned on March 2, 2009.
In an April 21, 2009 medical report, Dr. Thomas Gemma, an osteopathic specialist, noted
that appellant had lower back surgery 15 years prior and had a progressive increase in pain and
stiffness over a two-year period, resulting in immobility. He stated that a March 13, 2009
magnetic resonance imaging (MRI) scan revealed disc dehydration at L4-L5 with loss of height
and a small posterior annular tear of the disc with some retrolisthesis of L4-L5 and L5-S1.
Dr. Gemma recommended caudal epidural steroid injections under fluoroscopic guidance to the
L4-L5, L5-S1 interspace.
In medical reports dated May 22, 2009, Dr. Michael Frangopoulos, Board-certified in
family medicine, reported that appellant had been under his care for several years due to an
October 27, 2003 work-related injury. He reevaluated appellant in February 2009 for increased
back pain, spasms and discomfort. Dr. Frangopoulos noted spondylolysis L4-L5 and L5-S1,
diagnosing lumbar strain with chronic back pain from a work-related condition. He reported that
an MRI scan of appellant’s back showed no progression of disease from 2006 to March 2009 and
that he was awaiting results from appellant’s May 15, 2009 bone scan. Dr. Frangopoulos stated
that appellant’s lumbar strain was a recurrence of her original injury, noting she had no acute
inciting incident. He recommended a caudal epidural block by Dr. Gemma and limited appellant
to six-hour workdays.
By letter dated July 16, 2009, the Office advised appellant of the deficiencies in her
claim, requesting additional factual and medical evidence. It specifically noted that she had not
claimed any new or continued work factors on her new Form CA-2 and had also filed a Form
CA-2a claim for recurrence under xxxxxx393.2
By letter dated August 14, 2009, Dr. Frangopoulos stated that he had no further
information to add to appellant’s claim. In a report dated June 22, 2009, he diagnosed lumbar
strain from a work-related condition with chronic back pain. Dr. Frangopoulos stated that
appellant’s continued spasms, pain and discomfort resulted from her earlier injury. He
recommended continued epidural management with Dr. Gemma.
By decision dated August 24, 2009, the Office denied appellant’s claim, finding that the
evidence was insufficient to establish an injury as alleged, or to identify work factors in her new
occupational disease claim.
On September 3, 2009 appellant, through her attorney, requested an oral hearing before
an Office hearing representative. She submitted a letter dated August 17, 2009 from
Dr. Frangopoulos stating that he would no longer provide medical care for her.
1

Appellant contends that she had an accepted back injury from October 27, 2003 which had been previously
resolved, claim number xxxxxx393.
2

The Office advised that if appellant was claiming a recurrence then she should pursue her claim under her prior
CA-2a claim xxxxxx393; however, if she alleged that a new back condition developed over a period of time she
should provide supporting documentation under this claim xxxxxx741.

2

At a February 12, 2010 hearing, appellant testified that she started having back problems
in 1992 and had surgery as a result, but then reinjured her back in 2003. She testified that she
did not trip, fall, slip or get hit, but her constant workday activities of standing, dragging sacks of
mail, waiting on people, lifting, bending and twisting caused her back problems to become
noticeable about two years prior. Based on the recommendation of Dr. Frangopoulos, she had
restricted herself to a six-hour workday, received caudal blocks and was administered three shots
in her back, all without success. Appellant retired on October 31, 2009. The record was held
open for 30 days.3
By decision dated April 14, 2010, the Office hearing representative affirmed the
August 24, 2009 decision as modified. While appellant had provided enough evidence to
identify her factors of employment, the medical evidence was insufficient to establish that her
back condition was causally related to factors of her federal employment.4
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing 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 the Act, 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 or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
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; (2) a factual
3

During the hearing, appellant stated that she had also filed for recurrence of a claim, number xxxxxx769. Her
counsel stated that there had been a hearing on December 11, 2009 for her recurrence claim and that the claim on
appeal before the Board in this case was filed as a new injury.
4

Following the Office’s April 14, 2010 decision, appellant submitted additional new evidence to the Board on
appeal. As this evidence was not before the Office at the time of its final decision, the Board may not review this
evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

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

7

Elaine Pendleton, 40 ECAB 1143 (1989).

3

statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; 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 employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.9 Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. 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. This
medical opinion must include an accurate history of the employee’s employment injury, and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
The Office accepted that appellant performed the duties of a mail processing clerk as
alleged. The issue is whether she established that the accepted employment activities caused or
contributed to her back condition. The Board finds that the medical evidence of record is
insufficient to establish that appellant sustained a back injury causally related to factors of her
employment as a mail clerk.11
On March 13, 2009 diagnostic testing was obtained by Dr. Gemma and the MRI scan of
appellant’s back revealed disc dehydration at L4-L5 with loss of height and a small posterior
annular tear of the disc with some retrolisthesis of L4-L5 and L5-S1. Dr. Gemma recommended
caudal epidural steroid injections. While he diagnosed appellant’s back condition, he did not
explain how her condition was due to her employment activities as a mail clerk. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.12 Without medical
reasoning explaining how appellant’s employment factors caused her back condition,
Dr. Gemma’s report is insufficient to meet appellant’s burden of proof.13
8

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

9

D.U., 61 ECAB ___ (Docket No. 10-144, issued July 27, 2010).

10

James Mack, 43 ECAB 321 (1991).

11

See Robert Broome, 55 ECAB 339 (2004).

12

C.B., 61 ECAB ___ (Docket No. 09-2027, issued May 12, 2010); S.E., 60 ECAB ___ (Docket No. 08-2214,
issued May 6, 2009).
13

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008).

4

In medical reports dated May 22 through August 14, 2009, Dr. Frangopoulos noted that
appellant was having increased back pain, spasms and discomfort showing spondylolysis L4-L5
and L5-S1. He diagnosed a lumbar strain and chronic back pain from a work-related condition.
Dr. Frangopoulos noted appellant’s medical history, stating that she had been under his care for
several years due to an October 27, 2003 work-related injury. The MRI scan of appellant’s back
showed no progression of disease from 2006 to March 2009 and she had no traumatic incident
which might have caused this injury. Dr. Frangopoulos reported that appellant’s lumbar strain
was a recurrence of her original injury and recommended continued epidural management with
Dr. Gemma, limiting her to six-hour workdays.
The Board finds that the opinion of Dr. Frangopoulos is not well rationalized. While
briefly noting a history of appellant’s back condition, Dr. Frangopoulos did not set out adequate
detail pertaining to appellant’s prior treatment and failed to explain how appellant’s work
activities contributed to or aggravated her lumbar condition. Medical reports not containing
adequate rationale on causal relationship are of diminished probative value and are insufficient to
meet an employee’s burden of proof.14 Dr. Frangopoulos’ report failed to set out a clear
explanation of the causal connection of appellant’s lumbar strain to her factors of employment as
a mail clerk and, therefore, is of diminished probative value.
Dr. Frangopoulos’ report did not support appellant’s claim for a new occupational injury
because it suggested that her back injury was a recurrence of her earlier injury.15
Appellant alleged that her accepted duties as a mail clerk caused her back condition. Her
statements however, do not constitute the medical evidence necessary to establish causal
relationship. Neither the fact that the condition became apparent during a period of employment,
nor the belief that the condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.16 Appellant’s belief that her condition was caused by
the work-related exposure is not determinative.
The record does not contain a rationalized medical report explaining how appellant’s
lumbar strain resulted from her employment factors as a mail clerk.17 As previously noted, the
Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of
its decision. On that record, appellant failed to provide evidence to prove that her lumbar strain
was causally related to factors of her federal employment and therefore, failed to meet her
burden of proof.

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

15

Supra note 3.

16

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

17

Evidence submitted by appellant after the final decision cannot be considered by the Board, although she may
submit new evidence, along with a request for reconsideration directly to the Office. 20 C.F.R. § 501.2(c)(1).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
lumbar strain is causally related to factors of her employment as a mail clerk.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plymouth, MI, Employer
__________________________________________

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

Docket No. 16-1421
Issued: December 12, 2016

Case Submitted on the Record

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

JURISDICTION
On June 27, 2016 appellant filed a timely appeal of an April 18, 2016 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she was
totally disabled from January 14 through 16, 2016 due to her accepted March 3, 2015
employment injury.
FACTUAL HISTORY
On March 3, 2015 appellant, then a 39-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she slipped and fell in the performance of duty injuring
her left leg, lower back, and right arm. She accepted a light-duty position as a city carrier at the
1

5 U.S.C. § 8101 et seq.

employing establishment on March 13, 2015. OWCP initially allowed payment of a limited
amount of medical expenses, but on March 31, 2015 formally accepted her claim for back
contusion.2
Dr. Jai Duck Liem, a Board-certified physiatrist, examined appellant on March 26, 2015
and noted that she had a history of chronic low back pain with L5-S1 disc protrusion. He
reported that appellant was performing limited-duty work at the time of her March 3, 2015 work
injury. Dr. Liem diagnosed left sacroiliac sprain. Appellant stopped work on April 14, 2015.
Dr. Liem noted that appellant could return to work on April 16, 2015 with restrictions including
no lifting over 10 pounds, no prolonged standing or walking, bending no more than 10 times an
hour, and pushing or pulling up to 20 pounds.
Appellant filed a claim for compensation (Form CA-7) for wage loss from April 18
through May 1, 2015. She underwent a magnetic resonance imaging (MRI) scan on April 28,
2015 which demonstrated mild disc desiccation with minimal disc bulge at L5-S1, but no
appreciable canal stenosis or neural foraminal narrowing. On May 4, 2015 Dr. Liem opined that
appellant was totally disabled diagnosing herniated lumbar disc, sacroiliac strain, and contusion
of the back. Appellant requested leave-without-pay compensation beginning May 2, 2015.
OWCP authorized compensation benefits.
In a note dated May 18, 2015, Dr. Liem diagnosed severe trochanter bursitis. He noted
that appellant did not have any hip pain problem prior to her fall on March 3, 2015. Dr. Liem
diagnosed left sacroiliac sprain and trochanteric bursitis of the left hip. He continued to support
her total disability from work.
Dr. Carrie Stewart, a Board-certified physiatrist, examined appellant on June 18, 2015
and noted her history of injury on March 3, 2015. She also reported that appellant had a previous
low back injury at work in 2009. Dr. Stewart diagnosed left sacroiliac joint dysfunction
following a slip and fall on March 3, 2015. She also diagnosed left lower extremity radicular
pain with lumbar disc protrusion abutting the S1 nerve roots at L5-S1 as well as possible
piriformis syndrome. Dr. Stewart found that appellant was totally disabled from work for six
weeks. She found that appellant could return to light-duty work four hours a day on
July 30, 2015. Appellant’s work restrictions included changing positions frequently and no
walking or standing for more than 30 minutes at a time, with sitting breaks every 30 minutes.
She was allowed to case mail and drive, but not lift more than 10 pounds at waist level and no
lifting from the floor.
Appellant returned to part-time limited duty on August 3, 2015. Dr. Stewart reduced
appellant’s restrictions on September 3, 2015 to allow her to lift, push, and pull up to 15 pounds
and to work six hours a day. On November 19, 2015 she indicated that appellant could lift, push,
and pull up to 20 pounds. Dr. Stewart also increased her total amount of walking.
OWCP requested additional information from Dr. Stewart on December 17, 2015. In a
report dated January 13, 2016, Dr. Stewart described appellant’s history of injury on
March 3, 2015. She noted that shortly before December 25, 2015 appellant required a few days
2

Appellant has a previously accepted claim for lumbosacral sprain, lumbar strain, and disc protrusions L5-S1
without nerve impingement. The prior claim, File No. xxxxxx272, has been combined with the present claim.

2

off due to severe back pain which limited her ability to get out of bed. Dr. Stewart reported that
she had an additional period of severe pain during the first week of January 2016. Appellant
reported to work despite her pain. Dr. Stewart indicated that appellant continued to experience
moderate back pain and that she attributed her condition to wearing ice cleats which were not
well fitted and altered her gait resulting in back pain. She diagnosed left sacroiliac joint
dysfunction, lumbar disc herniation L5-S1 with intermittent left S1 radicular symptoms, and left
iliotibial (IT) band strain and tendinitis. Dr. Stewart found that appellant could continue to work
six hours a day, but limited her walking to two hours per shift. She noted that appellant would
continue to have episodic flare-ups.
In a report dated January 14, 2016, Dr. Stewart found that appellant experienced severe
pain on that date. She noted that appellant felt unable to bear weight on her left leg due to pain
and numbness radiating down the left leg into the foot. Dr. Stewart found that appellant
appeared uncomfortable sitting, transitioned from sitting to standing slowly, and walked with a
markedly antalgic gait. She also noted that appellant was tender to palpation over the left
sacroiliac joint and markedly tender to palpation over the left greater trochanteric bursa and IT
band. Dr. Stewart did not find motor strength, reflex, or sensory deficits. She diagnosed a
worsening of appellant’s left S1 distribution radicular pain and recommended an
electromyogram.
Dr. Stewart found that appellant was totally disabled through
January 18, 2016.
On January 22, 2016 appellant filed a Form CA-7, claiming compensation for
intermittent leave without pay from January 9 through 22, 2016. The employing establishment
indicated that appellant used 2.33 hours of leave without pay on January 9, 2016 4.24 hours on
January 13, 2016 and eight hours each on January 14 through 16, 2016. Appellant used 2.38
hours of leave without pay on January 19, 2016 and 2.46 hours on January 21, 2016. She used
two hours of leave without pay on January 11 and 22, 2016. On January 26, 2016 OWCP
authorized compensation for 21.4 hours from January 9 through 22, 2016 which included the
specific times under eight hours claimed, as well as two hours a day each on January 14
through 16, 2016.
In a letter dated February 9, 2016, OWCP requested additional medical evidence in
support of appellant’s January 22, 2016 Form CA-7. It noted that appellant claimed 39.40 hours
and had received compensation for 21.40 hours based on her light-duty job restrictions. OWCP
requested additional medical evidence explaining why appellant was totally disabled from work
from January 14 through 16, 2016. It allowed appellant 30 days for a response.
Dr. Stewart completed a report on February 4, 2016 addressing appellant’s total disability
for work on February 2, 2016. She described her work duty on February 1, 2016 including
carrying over 80 stacks of flyers weighing eight pounds each stack. Appellant sought additional
medical treatment on February 27, 2016 due to left leg pain.
On March 3, 3016 Dr. Stewart noted appellant’s increased back and left leg pain on
February 26, 2015. She indicated that appellant had flare-ups from January 15 through 17,
January 22 and 25, and February 2, 22, 25, and 26, 2016. Dr. Stewart noted that appellant
attributed her flare-ups to walking on snow and ice with metal gripper shoes. She noted that
wearing those shoes in the snow was very hard on appellant’s back causing several recent flare-

3

ups such that she was unable to get out of bed due to pain. Dr. Stewart recommended an
additional MRI scan.
In a report dated March 16, 2016, Dr. Stewart noted appellant’s history of injury on
March 3, 2015. She indicated that appellant continued to experience pain in her low back and
down the left leg. Dr. Stewart opined that appellant had “struggled especially this past winter
due to wearing metal cleats when walking on snow and ice.” She noted that appellant had a
walking route.
By decision dated April 18, 2016, OWCP denied appellant’s claim for total disability for
the period January 14 through 16, 2016. It authorized compensation for two hours a day during
the period January 9 through 22, 2016 in keeping with appellant’s restriction of working six
hours a day. OWCP found that appellant had not submitted sufficient medical evidence to
establish that she was totally disabled from January 14 through 16, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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.3 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurts too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

8

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

4

evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. 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.9 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.10
ANALYSIS
The Board finds that appellant has not submitted the necessary medical opinion evidence
to meet her burden of proof to establish that she was totally disabled from work from January 14
through 16, 2016.
In support of her claim for total disability from January 9 through 22, 2016, due to her
accepted condition of contusion of the back, appellant submitted a note dated January 14, 2016
from Dr. Stewart finding that she experienced severe pain on that date. Dr. Stewart reported her
findings on examination and diagnosed a worsening of appellant’s left S1 distribution radicular
pain. She found that appellant was totally disabled through January 18, 2016. This report is
insufficient to meet appellant’s burden of proof to establish total disability from January 14
through 16, 2016 as Dr. Stewart did not explain how or why appellant’s accepted employmentrelated condition rendered her totally disabled for the periods claimed. Dr. Stewart did not offer
any medical rationale supporting her opinion that appellant was totally disabled from work due
to her employment injuries on the dates claimed.
Dr. Stewart completed notes on March 3 and 16, 2016 indicating that appellant had flareups from January 15 through 17, 2016 of her back and left leg pain. She indicated that appellant
attributed her flare-ups to walking on snow and ice with metal gripper shoes. Dr. Stewart noted
that wearing the gripper shoes in the snow was very hard on appellant’s back causing several
recent flare-ups such that appellant was unable to get out of bed due to pain.11 The Board finds
that Dr. Stewart’s reports are insufficient to establish appellant’s claim for total disability from
January 15 through 17, 2016 due to her accepted condition of contusion of the back. Appellant
has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

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

10

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

11

The Board notes that the report attributed appellant’s condition to a new employment factor, the wearing of
metal gripper shoes while delivering her route. This report does not attribute appellant’s disability for work due to
her accepted employment injury, but instead to a new occupational disease resulting from additional employment
factors.

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
totally disabled from January 14 through 16, 2016 due to her accepted March 3, 2015
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2016
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 13-1586
Issued: July 23, 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 June 26, 2013 appellant filed a timely appeal from a January 24, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision, dated November 8, 2011 and the filing of this appeal, the
Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his claim for
further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 24, 2009 appellant, then a 59-year-old mail handler, filed an occupational
disease claim alleging bilateral carpal tunnel syndrome causally related to factors of his federal
1

5 U.S.C. § 8101 et seq.

employment. The claim was received by OWCP on March 31, 2008. OWCP accepted the claim
for bilateral carpal tunnel syndrome on April 23, 2009.
On February 24, 2009 appellant also filed a claim for wage-loss compensation from
November 14, 2008 to the present along with medical documentation.2 This form was received
by OWCP on April 13, 2009.
A second wage-loss claim was filed on May 29, 2009 for the period November 15, 2008
to May 31, 2009, along with a May 7, 2009 letter (received on May 11, 2009) noting that “[t]he
light duty I was given in response to my doctor’s note was pushing containers weighing up to
1000 pounds across the floor and up a ramp.”3
OWCP sent a development letter, dated May 29, 2009, to appellant regarding his claims
for disability compensation. In response, appellant submitted an additional report from Dr. Kim,
dated August 13, 2009, in which he recommended that appellant refrain from doing any
repetitive motion involving his wrists, including repetitive lifting. Dr. Kim stated, “I do not
know when [appellant] may be able to go back to work without restrictions unless he has surgery
to alleviate the compressive neuropathy.”
A November 6, 2009 settlement agreement from the Merit Service Protection Board
(MSPB), was received by OWCP in which the employing establishment agreed to rescind the
removal notice issued to appellant. However, the employing establishment instead separated him
for his inability to perform the duties of the assigned position effective September 12, 2009.
There was no admission of liability or guilt by appellant or the employing establishment.
By decision dated January 19, 2010, OWCP denied appellant’s claim for total disability
compensation as the medical evidence did not establish total disability. It referenced the reports
from Dr. Kim but found that they did not establish that appellant was unable to work. OWCP
also disagreed that the MSPB settlement agreement established that appellant’s work stoppage
was due to his accepted work-related condition, as it did not specify the reason for his inability to
perform the position.
Appellant submitted a letter dated January 19, 2010 to OWCP in which he claimed that
he could no longer do the job and that the settlement agreement had established that he was 100
percent disabled. He noted that there were no duties in the mail handler position that would be
within his work restrictions.

2

A medical report dated November 6, 2008, by Dr. Clifford Kim, Board-certified in internal medicine, diagnosed
bilateral carpal tunnel syndrome and recommended that he avoid repetitively lifting heavy objects greater than
20 pounds. A duty status report of Dr. Kim, dated April 3, 2009, found appellant unable to lift or carry more than 20
to 70 pounds continuously or 20 to 70 pounds intermittently and unable to pull/push or perform simple grasping
continuously for 7.5 hours a day.
3

A notice of proposed removal had been issued to appellant by the employing establishment on May 11, 2009 for
unsatisfactory attendance. He was found to be absent without leave since February 10, 2009. The final notice of
removal was issued on August 26, 2009.

2

On March 16, 2010 appellant requested reconsideration of the January 19, 2010 decision
and submitted a medical report from Dr. Sally Masters, Board-certified in internal medicine,
dated March 15, 2010. Dr. Masters found that any repetitive motion worsened appellant’s
condition and “[i]f his job requires repetitive motion or lifting heavy objects (greater than 10
pounds), then he is most likely unable to work and should therefore be considered disabled.”
Appellant argued that the medical evidence was sufficient to justify that he was unable to
perform his regular employment and reiterated that there was no light duty available for a mail
handler that did not require repetitive motion. He maintained that he was separated from
employment due to his work injury and noted that the MSPB settlement agreement did not
preclude his filing a workers’ compensation claim. Appellant asserted that he filed a
discrimination suit because his manager told him he had to push 1,000-pound containers as light
duty.
By decision dated June 15, 2010, OWCP denied appellant’s request for reconsideration
without reviewing the merits of the claim finding the medical evidence speculative and the
argument irrelevant.
On June 8, 2011 appellant again requested reconsideration. He argued that OWCP’s
initial decision did not inform him that he could obtain compensation if he was only partially
disabled and the employing establishment could not accommodate his restrictions. Appellant
asserted that he had provided medical evidence establishing work restrictions and indicated that
the employing establishment had not provided him with an offer of modified employment. He
maintained that the employing establishment “made contradictory statements about the reason
for his dismissal” and “concocted an unsigned Offer of Modified Assignment which was never
presented to me, stamped April 6, 2009 (FIVE WEEKS AFTER I BECAME DISABLED)
within a week of my filing of a discrimination suit against my former manager.” (Emphasis in
the original.) Appellant claimed that had he declined to accept a modified job offer, the basis for
the termination would have been the refusal, not the absence without leave.
In an August 23, 2011 e-mail, the employing establishment related that appellant had
been offered a modified job offer (the record contains such an offer that had been sent via a
facsimile on April 3, 2009 and marked as received on April 6, 2009) consistent with his medical
restrictions. The employing establishment claimed that he had not accepted it; rather he chose to
file for total disability. Appellant was later terminated due to his failure to provide medical
documentation to establish that he was unable to perform the modified work offered to him. The
employing establishment had agreed in the MSPB settlement that he could not perform his
assigned duties, but asserted that the “parties never came to an agreement as to why [appellant]
could not perform the work which he was offered.” It noted that it had provided to appellant the
limited-duty job offer dated April 3, 2009, but it was declined. The document was not signed by
either the employing establishment or appellant but he referred to it in his May 7, 2009 letter.
By decision dated November 8, 2011, OWCP denied modification of its January 19, 2010
decision. It noted that appellant had not filed a workers’ compensation claim until
February 2009 and thus the employing establishment would not have considered his absence
from work commencing November 2008 to be due to a work-related injury and would have had
no obligation, at that time, to have offered a limited-duty position. OWCP recognized that
appellant had been offered a limited-duty assignment once the restrictions had been established

3

by his treating physician, Dr. Kim on April 3, 2009. It also found that the MSPB settlement
agreement did not establish that appellant had been separated due to his carpal tunnel syndrome.
On October 30, 2012 appellant requested reconsideration. He contended that the
employing establishment did not have limited duty available for mail handlers who had injuries
to the upper extremities. Appellant also asserted that he was not removed due to poor
attendance. He noted that the employing establishment submitted an “unsigned and undelivered”
offer of modified work after he had been off work for five months. Appellant related that he was
not aware of his carpal tunnel syndrome until November 2008 but submitted medical evidence
containing work restrictions to the employing establishment at that time. He explained that
Dr. Kim’s duty status report was dated April 3, 2009 and not the date of the examination on
December 11, 2008, because on the date of the examination Dr. Kim had failed to sign it.
Appellant also stated that the “limited-duty job offer, of which you have a copy, was unsigned
and never presented to me and should not be accepted as legitimate.”
By decision dated January 24, 2013, OWCP denied appellant’s request for
reconsideration after finding that he had not submitted evidence or raised an argument sufficient
to warrant reopening his claim for further merit review under section 8128(a). It reviewed his
contentions set forth in his October 30, 2012 statement and found that they duplicated arguments
previously addressed in the November 8, 2011 decision.
On appeal, appellant contends that OWCP reviewed the merits of his claim in its
January 24, 2013 decision. He maintained that management did not provide him with light-duty
employment. Appellant asserted that he did not receive a copy of the modified job offer dated
five months after he became disabled.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.7

4

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.”
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

4

ANALYSIS
The only decision before the Board in this appeal is the January 24, 2013 nonmerit
decision of OWCP, denying appellant’s application for review. There is no OWCP merit
decision within the Board’s jurisdiction.8
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome. Appellant
filed a claim for compensation beginning November 14, 2008 and continuing. In a merit
decision dated January 19, 2010, OWCP found that he had not established that he was totally
disabled. It noted that appellant was removed from employment effective September 12, 2009
due to an inability to perform his employment and that an MSPB settlement agreement did not
establish that he was removed as a result of his work injury. In a subsequent merit decision
dated November 8, 2011, OWCP found that the medical evidence failed to establish disability
from November 15, 2008 and continuing.
Appellant has failed to show that OWCP erroneously applied or interpreted a specific
point of law and has not advanced a relevant legal argument not previously considered by
OWCP. In his October 30, 2012 request for reconsideration, his only submission was a
statement disputing OWCP’s decision. Appellant argued that he had established disability and
that the employing establishment had made contradictory statements about whether it had offered
a modified job offer. These arguments were not new, but had been reiterated in several
successive requests for reconsideration. Evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for
reopening a case.9
Further, the underlying issue in this case is whether appellant established, through
rationalized medical evidence, that he was disabled from performing his position. His lay
opinion in this regard is insufficient to discharge his burden of proof, as the Board has held that
lay individuals are not competent to render a medical opinion.10
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered or constitute relevant and pertinent new
evidence not previously considered by OWCP, it properly denied her reconsideration request.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

Supra note 1.

9

J.P., 58 ECAB 289 (2007).

10

Gloria J. McPherson, 51 ECAB 441 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 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