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

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Appearances:
Kevin Card, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0892
Issued: July 9, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 17, 2020 appellant, through his representative, filed a timely appeal from a
February 11, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
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 submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted because OWCP never
explored the issue of appellant’s opioid use and the effect on his employment when it terminated benefits. The Board,
in exercising its discretion, denies appellant’s request for oral argument because this matter requires an evaluation of
the medical evidence presented. As such, the arguments on appeal can adequately be addressed in a decision based
on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not
serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as
submitted to the Board.

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish continuing,
employment-related residuals or disability on or after September 23, 2014 causally related to his
June 14, 2013 employment injury; and (2) whether appellant has met his burden of proof to expand
the acceptance of his claim to include an additional condition causally related to the accepted
June 14, 2013 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On June 14, 2013 appellant, then a 52-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, he injured his lower back when he lifted a heavy, broken
truck back door while in the performance of duty.5 He stopped work on June 14, 2013 and has not
returned. OWCP accepted the claim for a lumbar sprain and subsequently expanded the
acceptance of the claim to include aggravation of degenerative disc disease lumbosacral
intervertebral disc. It paid appellant wage-loss compensation benefits on the supplemental rolls as
of July 31, 2013, and on the periodic rolls as of January 12, 2014.
On August 2, 2014 OWCP issued appellant a notice of proposed termination, proposing to
terminate his wage-loss compensation and medical benefits as his employment-related residuals
and disability had ceased.
By decision dated September 23, 2014, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective that date. It determined that the special
weight of the medical opinion evidence rested with the June 23, 2014 opinion of Dr. Richard
Schmidt, a Board-certified orthopedic surgeon, and impartial medical examiner (IME).
Dr. Schmidt concluded that appellant no longer had residuals or disability due to his accepted

3

5 U.S.C. § 8101 et seq.

4

Docket No. 18-0414 (issued November 14, 2018).

5

OWCP assigned the present claim OWCP File No. xxxxxx104. It previously accepted that appellant sustained a
lumbar strain on June 29, 2004 under OWCP File No. xxxxxx649. In 2008, appellant underwent a bilateral
laminectomy foraminotomy. OWCP also accepted that he sustained a lumbar strain on October 24, 2012 under OWCP
File No. xxxxxx335.

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employment injury, and that there was no indication that appellant required or would benefit from
surgical intervention.6
Appellant requested reconsideration on January 8, 2015 and submitted additional evidence
from Dr. Thanki. By decision dated April 8, 2015, OWCP denied modification of its
September 23, 2014 termination decision. It found that Dr. Thanki’s subsequent reports were
insufficient to establish continuing residuals or disability as he was on one side of the conflict in
medical opinion and his opinion was not well-reasoned.
On January 26, 2016 appellant requested reconsideration. In a January 20, 2016 letter, he
argued that he had sustained a consequential injury due to his prescribed medications. Appellant
also alleged that Dr. Schmidt failed to answer questions pertaining to the effect of pain and other
medication on his ability to work.
By decision dated April 7, 2016, OWCP denied modification of its prior decision. It
indicated that there was no evidence in the file to support that appellant had either contacted OWCP
or filed a claim for a consequential injury.
On July 5, 2016 appellant requested reconsideration.
By decision dated September 30, 2016, OWCP denied modification of its prior decision.
In a May 26, 2017 letter, appellant’s representative requested that the acceptance of
appellant’s claim be expanded to include the condition of bilateral S1 radiculopathy. OWCP
received a February 6, 2017 electromyography and nerve conduction velocity (EMG/NCV) study
which noted bilateral S1 radiculopathies and no evidence of neuropathy.
On June 7, 2017 appellant requested reconsideration. By decision dated September 5,
2017, OWCP denied modification of its prior decision.

6

On May 22, 2014 OWCP referred appellant, together with a statement of accepted facts (SOAF), the medical
record, and a list of questions, to Dr. Richard Schmidt, a Board-certified orthopedic surgeon, for an impartial medical
examination to resolve the conflict in opinion between Dr. Ashokkumar Thanki, a Board-certified neurosurgeon, and
Dr. Robert F. Draper, a Board-certified orthopedic surgeon and second opinion physician. In a June 23, 2014 report,
Dr. Schmidt noted the accepted conditions and set forth examination findings. He reviewed the magnetic resonance
imaging (MRI) studies of November 27, 2013 and July 13, 2014 and indicated that they did not show any significant
pathology of the L5-S1 discs, but rather showed postoperative changes with no evidence of disc herniation or neural
compromise. Dr. Schmidt indicated that his review of the November 26, 2013 x-rays showed chronic facet arthritis
at L5-S1. He also noted that the November 26, 2013 x-ray report indicated some degenerative disc disease at L5-S1
with facet joint hypertrophy at L5-S1. Dr. Schmidt opined that appellant had recovered from the accepted conditions
as there was no evidence of any ongoing lumbar strain or any ongoing aggravation of appellant’s intravertebral disc.
He concluded that there was no indication, need, or benefit for any surgical intervention, which included a lumbar
laminectomy, foraminotomy, and discectomy. Dr. Schmidt also opined that there was no need for a lumbar interbody
fusion as there was no evidence of any instability in appellant’s spine and no indication for discectomy or facet
removal. In a June 23, 2014 work capacity evaluation (Form OWCP-5c), he opined that appellant could resume his
date-of-injury position with no restrictions.

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Appellant appealed to the Board on December 21, 2017. By decision dated November 14,
2018, the Board affirmed OWCP’s September 5, 2017 decision.7 The Board found that OWCP
properly terminated appellant’s wage-loss compensation and medical benefits effective
September 23, 2014. The Board reviewed Dr. Thanki’s subsequent reports through May 8, 2017
and found that these reports were insufficient to establish continuing residuals or disability after
September 23, 2014 causally related to his June 14, 2013 employment injury. The Board further
found that Dr. Thanki’s opinion that bilateral S1 radiculopathy was employment related was of
insufficient probative value to establish that it resulted from the accepted June 14, 2013
employment injury.
Following the Board’s November 14, 2018 decision, OWCP received an October 29, 2019
letter from appellant’s representative again requesting that the acceptance of appellant’s claim be
expanded to include bilateral S1 radiculopathy based on the February 6, 2017 EMG/NCV study
and Dr. Thanki’s May 8, 2017 report, previously of record.
On November 13, 2019 appellant, through his representative, requested reconsideration.
Appellant’s representative provided comments regarding a February 6, 2017 EMG/NCV study and
Dr. Thanki’s May 8, 2017 report, previously of record. The representative also argued that
Dr. Schmidt, the IME, was not provided with a complete history of injury, specifically that
appellant had an accepted left ankle condition under OWCP File No. xxxxxx492. The
representative alleged that his prior argument regarding appellant’s long-term prescription opioid
usage and its effect on his ability to perform his letter carrier duties had not been fully addressed.
Progress reports from Dr. Thanki dated: September 7, November 10, and November 27,
2017; March 19, June 21, June 25, July 10, July 26, August 3, August 21, October 29,
December 17, 2018; and March 14, June 13, and September 19, 2019 were received. In his
progress reports dated September 7, 2017 through October 29, 2018, Dr. Thanki diagnosed:
lumbar spondylosis at L5-S1 and bilateral lumbago, intractable pain in the low back, bilateral; and
bilateral sacroiliac joint pain. He noted excellent results from past radiofrequency denervation
procedure for pain relief and continued to recommend the procedure, along with alternative forms
of treatment. Dr. Thanki also completed duty status reports (Form CA-17) dated September 7,
2017 and July 26, 2018 wherein he related that appellant was unable to return to work in any
capacity.
On November 10, 2017, June 25, August 3 and August 21, 2018, Dr. Thanki performed
radiofrequency denervation of several nerves and the sacroiliac joint.8
A November 5, 2018 cervical spine x-ray noted mild degenerative changes of cervical
spine. A cervical spine MRI scan of even date noted multilevel degenerative disc disease with
disc bulging and spondylote changes and moderate-to-severe narrowing of several neural

7

See supra note 4.

8

This included: the right medial nerve at L3-4, L4-5, and L5-S1 and right sacroiliac joint on November 10, 2017
and June 25, 2018; left L4-5 and L5-S1 and right L4-5 and L5-S1 and left and right sacroiliac joint on August 3, 2018;
and the left L3-4, L4-5 and L5-S1 and left sacroiliac joint on August 21, 2018.

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foramina. A November 13, 2018 EMG/NCV study indicated bilateral C7 radiculopathies and mild
bilateral carpal tunnel syndrome.
In December 17, 2018 and March 14, June 13, and September 19, 2019 reports, Dr. Thanki
noted appellant’s neurological complaints and that appellant took opioid medication on an as
needed basis for pain. He noted examination findings and results of the diagnostic testing.
Dr. Thanki provided an impression of lumbar spondylosis, chronic pain in the low back, cervical
disc bulge, degenerative disc disease, spondylosis, varying degrees of bilateral neural foraminal
stenosis at C3-4, C4-5, C5-6, and C6-7, and EMG/NCV evidence of bilateral C7 radiculopathies
and mild bilateral carpal tunnel syndrome. In CA-17 form reports dated March 14 and
September 19, 2019, Dr. Thanki opined that appellant was totally disabled due to lower back
sprain.
A November 6, 2019 urgent care summary report indicated that appellant was seen by
Dr. Martin Paslqualone, an emergency medical specialist, and diagnosed with lumbar
radiculopathy.
Medical reports from Dr. Matthew Tormenti, a Board-certified neurosurgeon, dated
December 3 and 17, 2019 and February 7, 2020 were also received. In the December 3, 2019
report, Dr. Tormenti provided impressions of strain of muscle, fascia and tendon of lower back,
radiculopathy, lumbar region and low back pain. He noted that appellant’s symptoms were the
same since the last visit five years ago from a work-related low back injury that resulted in lumbar
radiculopathy. Dr. Tormenti also noted that appellant underwent a medically necessary lumbar
decompression procedure, which helped in his pain, but he was still symptomatic in terms of
radicular symptoms. He reported that interventional injections provided temporary response and
that updated diagnostic tests were needed for any surgical indications. In his December 17, 2019
report, Dr. Tormenti noted that the MRI scan showed persistent foraminal stenosis at L4-5 and L5S1 and that the flexion extension films showed a fusion at that level. He opined that appellant
would benefit from a reexploration and redo decompression with interbody fusion. Dr. Tormenti
also opined that appellant was disabled and had permanent pain as a result of his injuries.
In a February 7, 2020 report, Dr. Tormenti reviewed appellant’s medical records, noting
that he had prior L5-S1 laminectomy in 2008. He reported appellant’s examination results of
December 17, 2019 and the results of appellant’s diagnostic testing of the lumbar spine.
Dr. Tormenti opined that, based on his evaluation and his review of appellant’s records, appellant
had reaggravated his prior low back issue as a result of the June 14, 2013 work incident. He noted
that conservative therapy failed and appellant underwent a medically necessary bilateral
laminectomy and foraminotomy at L4-5 and L5-S1 with discectomy at L5-S1 non-instrumented
fusion on December 11, 2014. Unfortunately, appellant’s persistent pain and disability for over
six years since his surgery were considered permanent. Dr. Tormenti opined that appellant was
not able to return to his prior employment as he still had radiographic and clinical nerve root
compression. He recommended an L5-S1 interbody fusion with instrumentation or permanent
stimulator implantation, if spinal cord stimulation was successful. Dr. Tormenti opined, if not for
the employment incident, the medical probability of the surgery would not be necessary.
By decision dated February 11, 2020, OWCP denied modification. It found that the
medical evidence of record was insufficient to establish that appellant continued to have residuals

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or disability causally related to his June 14, 2013 employment injury. OWCP also determined that
the medical evidence of record was insufficient to establish an additional condition causally related
to his accepted June 14, 2013 employment injury.
LEGAL PRECEDENT -- ISSUE 1
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing disability or residuals, on or after that date, causally related to the accepted
injury.9 To establish a causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence based
on a complete medical and factual background, supporting such a causal relationship.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish continuing,
employment-related residuals or disability on or after September 23, 2014 causally related to his
June 14, 2013 employment injury.
On prior appeal, the Board reviewed the medical evidence submitted prior to OWCP’s
September 5, 2017 decision. The Board found that OWCP properly terminated appellant’s wageloss compensation and medical benefits because he did not have residuals or disability due to his
accepted June 14, 2013 employment injury. The special weight of the medical opinion evidence
rested with the June 23, 2014 opinion of Dr. Schmidt, who had conducted an impartial medical
examination. The Board further found that the medical evidence submitted after the September 23,
2014 termination decision was insufficient to establish continuing residuals or disability due to the
June 14, 2013 employment injury.11 The Board notes that it is unnecessary to consider the
evidence that was previously considered in its November 14, 2018 decision. Findings made in
prior Board decisions are res judicata, absent any further review by OWCP under section 8128 of
FECA.12
Following the Board’s November 14, 2018 decision, appellant, through his representative,
requested reconsideration and submitted additional evidence.
In his December 3, 2019 report, Dr. Tormenti provided impressions of strain of muscle,
fascia and tendon of lower back; radiculopathy, lumbar region and low back pain. He noted that
appellant’s symptoms were the same since the last visit five years ago from a work-related low
back injury that resulted in lumbar radiculopathy and a medically necessary lumbar decompression
procedure. Dr. Tormenti opined, in his December 17, 2019 report, that appellant would benefit
9
See J.R., Docket No. 20-0211 (issued November 5, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
Manuel Gill, 52 ECAB 282 (2001).
10

L.S., Docket No. 19-0959 (issued September 24, 2019); C.L., Docket No. 18-1379 (issued February 3, 2019);
T.M., Docket No. 08-0975 (issued February 6, 2009).
11

Supra note 4.

12

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

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from a reexploration and redo decompression with interbody fusion. While he opined that
appellant was disabled and had permanent pain as a result of his injuries, the Board notes that
OWCP did not authorize the December 11, 2014 L5-S1 non-instrumented fusion. Furthermore,
Dr. Tormenti did not provide rationale for his causation finding and disability determination before
and after the unauthorized December 11, 2014 L5-S1 non-instrumented fusion as well as the
necessity for a new surgery and, thus, his opinion is of little probative value.13
In a February 7, 2020 report, Dr. Tormenti opined that appellant had reaggravated his prior
low back issue as a result of the June 14, 2013 work incident, noting that appellant had permanent
persistent pain and disability six years after the December 11, 2014 L5-S1 non-instrumented
fusion. While he opined that appellant was not able to return to his prior employment due to
clinical nerve root compression and additional surgery was required, Dr. Tormenti again has not
provided a reasoned medical explanation with objective findings as to why appellant was unable
to perform the duties of his position or explained how or why the additional surgery is causally
related to the accepted employment injury.14 Thus, Dr. Tormenti’s reports are insufficient to
overcome the special weight of the opinion of Dr. Schmidt, the IME, or to create a new conflict in
medical opinion.
Appellant also submitted continuing progress reports from Dr. Thanki, who diagnosed:
lumbar spondylosis at L5-S1 and bilateral lumbago, intractable bilateral pain in the low back;
bilateral sacroiliac joint pain and, following diagnostic testing, additionally diagnosed, cervical
disc bulge, degenerative disc disease, spondylosis and varying degree of bilateral neural foraminal
stenosis, C3-4, C4-5, C5-6, and C6-7; and EMG/NCV evidence of bilateral C7 radiculopathies and
mild bilateral carpal tunnel syndrome. However, Dr. Thanki was on one side of the conflict, which
Dr. Schmidt had resolved. The Board has held that reports from a physician who was on one side
of a medical conflict are generally insufficient to overcome the special weight accorded to the
IME, or to create a new conflict.15 An analysis of Dr. Thanki’s medical progress notes show that
Dr. Thanki did not address whether appellant was disabled from employment or required further
medical treatment due to his accepted June 14, 2013 employment injury. Thus, his opinion is of
no probative value.16 While Dr. Thanki opined in March 14 and September 19, 2019 CA-17 forms
that appellant was totally disabled from work, he again did not address the relevant issue of
whether appellant had continued residuals or disability of his accepted June 14, 2013 employmentrelated injury.17

13

A.T., Docket No. 20-0334 (issued October 8, 2020) (a medical report is of limited probative value on a given
medical issue if it contains a medical opinion which is unsupported by medical rationale).
14

Id.

15

See Y.I., Docket No. 20-0263 (issued November 30, 2020); C.L., Docket No. 18-1379 (issued February 5, 2019);
I.J., 59 ECAB 408 (2008).
16

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

17

Id.

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The November 6, 2019 summary report does not contain a physician’s opinion regarding
continuing disability or residuals from the accepted employment conditions. Therefore, it is of no
probative value and insufficient to establish continuing disability or residuals.18
OWCP also received a cervical spine x-ray and a cervical spine MRI scan dated
November 5, 2018 and an EMG/NCV study dated November 13, 2018. The Board has held that
diagnostic tests standing alone lack probative value as they do not provide the physician’s opinion
on causal relationship.19
As appellant has not provided rationalized medical evidence establishing continued
residuals or disability on or after September 23, 2014 causally related to his June 14, 2013
employment injury, the Board finds that he has not met his burden of proof.
On appeal appellant’s representative generally argues that OWCP did not follow its own
procedures with regard to appellant’s use of opioids. As explained above, to establish causal
relationship between the condition as well as any attendant disability claimed and the employment
injury, an employee must submit rationalized medical evidence based on a complete medical and
factual background, supporting such a causal relationship.20 The medical evidence of record is
insufficiently rationalized to meet appellant’s burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.21
The medical evidence required to establish causal relationship between a specific
condition, as well as any attendant disability claimed, and the employment injury, is rationalized
medical opinion evidence.22 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.23 Additionally, the opinion of the physician must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

18

Id.

19

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

20

Supra note 10.

21

W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., Docket No. 12-0599 (issued October 2, 2012);
Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
22

T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
23

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

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rationale, explaining the nature of the relationship between the diagnosed condition and the
accepted employment injury.24
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include an additional condition causally related to the accepted June 14, 2013
employment injury.
As previously noted, findings made in prior Board decisions are res judicata, absent any
further review by OWCP under section 8128 of FECA.25 No new evidence or argument was
submitted in support of expansion of the claim.
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 his burden of proof to establish continuing,
employment-related residuals or disability on or after September 23, 2014 causally related to his
June 14, 2013 employment injury. The Board also finds that appellant has not met his burden of
proof to expand the acceptance of his claim to include an additional condition causally related to
the accepted June 14, 2013 employment injury.26

24

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
25

C.D., supra note 12.

26
On return of the case record OWCP should combine this case record with OWCP File No. xxxxxx649 and File
No. xxxxxx335.

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ORDER
IT IS HEREBY ORDERED THAT the February 11, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
FRANKLIN D. ROOSEVELT VETERANS
ADMINISTRATION HOSPITAL, Montrose, NY,
Employer
__________________________________________

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

Docket No. 11-1157
Issued: November 23, 2011

Case Submitted on the Record

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

JURISDICTION
On April 13, 2011 appellant filed a timely appeal of the March 2, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) terminating his compensation.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective March 2, 2011 on the grounds that he no longer had any residuals or
disability causally related to his accepted employment-related injury.
On appeal, appellant contends that the medical evidence establishes that he has
continuing residuals of his employment-related injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 27, 2000 appellant, then a 46-year-old food service worker,
sustained a cervical sprain as a result of reaching overhead to get bread while working at the
employing establishment. On June 30, 2000 he returned to full-time limited-duty work. On
September 6, 2005 OWCP accepted that appellant sustained a recurrence of disability on
January 18, 2005 causally related to the June 27, 2000 employment injury. Appellant returned to
limited-duty work five hours a day. On January 7, 2008 he returned to full-time limited-duty
work. On October 24, 2008 OWCP accepted that appellant sustained a recurrence of disability
on February 21, 2008 due to the accepted employment injury. Appellant returned to limited-duty
work five hours a day. On December 16, 2008 OWCP accepted that he sustained a recurrence of
disability on September 29, 2008 causally related to the accepted injury.
Appellant stopped work on April 26, 2009 and filed a recurrence claim. In an August 11,
2009 decision, OWCP denied his claim, finding that the medical evidence was insufficient to
establish that he sustained a recurrence of disability on April 26, 2009 due to the accepted
employment injury.2 Appellant did not return to work.
In an April 28, 2010 prescription note, Dr. Surinder P. Jindal, an attending Boardcertified neurologist, advised that appellant was unable to perform his regular work duties for
one month.
On June 11, 2010 OWCP referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Edward J. Kirby, a Board-certified orthopedic surgeon, for a
second opinion on the nature and extent of his employment-related residuals and disability. In a
June 28, 2010 medical report, Dr. Kirby listed findings on physical examination and reviewed
diagnostic test results. He diagnosed cervical strain causally related to the June 27, 2000
employment injury. Dr. Kirby also diagnosed progressive degenerative disease of the cervical
spine resulting in foraminal stenosis and radicular symptoms of the left arm that were not related
to the accepted injury. Although appellant was permanently incapable of performing the duties
of his date-of-injury position, his disability was not causally related to the accepted injury.
Rather, he found it was caused by his continuing worsening cervical degenerative disc disease
which required medical treatment. Dr. Kirby concluded that appellant had reached maximum
medical improvement with regards to the accepted condition and that no further medical
treatment was warranted for this condition.
In a July 26, 2010 report, Dr. Jindal listed his findings on physical and neurological
examination. He advised that appellant had cervical muscle spasm with cervical myofascial
pain, cervical radicular and myofascial pain and recurrent spastic trigger points. Dr. Jindal
addressed his treatment plan.
2

On August 26, 2009 appellant requested an oral hearing regarding the August 11, 2009 OWCP decision. On
September 1, 2009 he appealed the August 11, 2009 decision to the Board. By decision dated October 20, 2009, the
Branch of Hearings and Review denied appellant’s request for a hearing on the grounds that OWCP and the Board
may not have simultaneous jurisdiction over the same issue in the same case. In an order dated April 15, 2009, the
Board dismissed his appeal in accordance with his request to seek reconsideration before OWCP. Docket No. 092180 (issued April 15, 2010).

2

On August 16, 2010 OWCP determined that there was a conflict in medical opinion
between Dr. Kirby and Dr. Jindal regarding the extent of appellant’s employment-related
residuals and disability, and need for further medical treatment. By letter dated October 22,
2010, it referred him, together with a statement of accepted facts and the medical record, to
Dr. Robert P. Mantica, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a November 11, 2010 report, Dr. Mantica obtained a history of the June 27, 2000
employment injury and appellant’s medical treatment and diagnostic test results. Physical
examination of the cervical spine was essentially normal with the exception of limitation to the
cervical spine and lower back, decreased sensation to touch in the lateral left arm and hand and
border of the left forearm and tenderness to percussion in his back.
Dr. Mantica advised that appellant currently had no residuals of the June 2000
employment-related cervical sprain. He noted that appellant returned to his regular work duties
three days following the accepted injury. The lower level of resistance in the injury indicated
that appellant had healed from this grade 1 cervical sprain within three days and was able to
resume the same type of work that he performed prior to the accepted injury. Dr. Mantica
advised that appellant’s radiculopathy was caused by his cervical spondylosis and not the
June 27, 2000 employment injury. The cervical spondylosis, including degenerative disc disease
and facet joint arthritis were already present in 2000. It caused irritation to the nerve roots and
can give a radicular pain pattern along the distribution of C5-6 and C6-7 nerve roots. Appellant
also had a pain pattern along the distribution of the C3-4 and C4-5 levels. Dr. Mantica advised
that there were no objective findings related to the accepted employment condition. No
treatment was required for the accepted condition. Dr. Mantica advised that appellant was totally
disabled from performing his regular food service worker duties due to his underlying cervical
spondylosis which had not worsened or been aggravated by the accepted injury. He concluded
that appellant had fully recovered from the accepted condition by June 30, 2000 and that his
continued pain was due to the progression of the underlying cervical spondylosis.
On January 27, 2011 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits related to his accepted cervical sprain based on
Dr. Mantica’s medical opinion.
In a February 10, 2011 report, Dr. Jindal reiterated his prior diagnosis of cervical
radiculopathy and radicular myofascial pain. He advised that appellant could perform light-duty
work which could progress to full-time work based on his tolerance level. Dr. Jindal addressed
his treatment plan.
In a March 2, 2011 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits regarding his accepted condition effective that date. It found that Dr. Mantica’s
opinion represented the special weight of the medical evidence.3

3

Following the issuance of its March 2, 2011 decision, OWCP received additional evidence. Also, on appeal
appellant submitted new evidence. The Board may not consider evidence for the first time on appeal which was not
before OWCP at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c).

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.4 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.5 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for
medical treatment, OWCP must establish that a claimant no longer has residuals of an
employment-related condition that requires further medical treatment.6
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.7 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.8
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits as of March 2, 2011. OWCP accepted that appellant
sustained a cervical sprain on June 27, 2000 as a result of reaching overhead to get bread. The
Board notes that a conflict arose in the medical opinion evidence between Dr. Jindal, an
attending physician and Dr. Kirby, an OWCP referral physician, on whether he had any residuals
or disability causally related to the accepted condition and whether further medical treatment was
warranted. OWCP properly referred appellant to Dr. Mantica for an impartial medical
examination pursuant to section 8123(a) of FECA.9
In a November 11, 2010 report, Dr. Mantica provided an accurate history of the June 27,
2000 employment injury and reviewed appellant’s medical treatment and diagnostic test results.
He found that the accepted cervical sprain condition had resolved by June 30, 2000 and that
appellant’s continued pain and total disability were due to his underlying cervical spondylosis
and not the accepted condition. Dr. Mantica advised that appellant’s return to his regular work
duties three days following the accepted injury indicated that his grade 1 cervical sprain had
healed. He also advised that his preexisting spondylosis, which included degenerative disc
4

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

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

7

5 U.S.C. § 8123(a); see S.T., Docket No. 08-1675 (issued May 4, 2009).

8

Gloria J. Godfrey, 52 ECAB 486 (2001); B.P., Docket No. 08-1457 (issued February 2, 2009).

9

Bryan O. Crane, 56 ECAB 713 (2005); J.J, Docket No. 09-27 (issued February 10, 2009).

4

disease and facet joint arthritis, were present in 2000 and caused irritation to the nerve roots.
Dr. Mantica stated that the preexisting conditions caused his radicular pain pattern along the C34, C4-5 C5-6 and C6-7 nerve root distributions. He concluded that there were no objective
findings related to the accepted condition and that no further medical treatment of the condition
was warranted.
The Board finds that Dr. Mantica’s opinion is entitled to special weight accorded an
impartial medical specialist and is sufficiently well reasoned and detailed to resolve the conflict
of medical opinion evidence. Dr. Mantica provided extensive findings on physical examination
and explained why appellant’s current symptoms and disability were not causally related to the
June 27, 2000 employment-related cervical sprain. The Board finds, therefore, that OWCP met
its burden of proof to terminate appellant’s compensation and medical benefits effective
March 2, 2011.
The Board further finds that appellant did not submit any rationalized medical evidence
to overcome the weight of Dr. Mantica’s opinion or to create a new conflict. Dr. Jindal’s
February 10, 2011 report found that appellant had cervical radiculopathy and radicular
myofascial pain which required medical treatment. He also found that appellant could perform
light-duty work and could eventually perform full-time work based on his tolerance level.
Dr. Jindal did not provide any opinion addressing his disability for work due to the June 27, 2000
employment injury. Moreover, he did not provide any rationale explaining how appellant’s
diagnosed medical conditions and required treatment were causally related to the accepted
condition.10 The Board has consistently held that pain is a symptom, not a compensable medical
diagnosis.11 Moreover, OWCP has not accepted the condition of cervical radiculopathy and
Dr. Jindal’s opinion is insufficiently rationalized to establish that any other condition is
employment related.12 The Board notes that Dr. Jindal formed one part of the conflict in the
medical opinion evidence for which appellant was referred to Dr. Mantica and his report is
insufficient to create a new conflict in the medical evidence or to overcome the well-rationalized
medical opinion of Dr. Mantica, the impartial medical specialist.13
Appellant’s contention on appeal that he continues to suffer from residuals of his
accepted June 27, 2000 employment injury is not borne out by the evidence of record. The
Board finds that the special weight of the medical evidence, as represented by Dr. Mantica, the
impartial medical specialist, establishes that he has no continuing employment-related residuals
or disability and, thus, OWCP properly terminated his wage-loss compensation and medical
benefits.

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
11

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

12

See G.A., Docket No. 09-2153 (issued June 10, 2010) (for conditions not accepted by OWCP as being
employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish
causal relation, not its burden to disprove such relationship).
13

See Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

5

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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective March 2, 2011 on the grounds that he no longer had any residuals or
disability causally related to his accepted employment-related cervical sprain.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 19-0591
Issued: August 14, 2019

Case Submitted on the Record

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

JURISDICTION
On January 21, 2019 appellant, through counsel, filed a timely appeal from a
September 17, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated August 7,
2017, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 1, 2005 appellant, then a 35-year-old legal instruments examiner, filed a traumatic
injury claim (Form CA-1) alleging that on March 2, 2005 she injured her knees when she fell on
ice while in the performance of duty. OWCP accepted the claim for bilateral post-traumatic
chondromalacia of the knees, lumbar sprain, thoracic sprain, and lumbar radiculopathy.
On October 1, 2016 appellant filed a claim for a schedule award (Form CA-7). Following
development of the evidence, OWCP determined that a conflict in medical evidence existed and
referred her to Dr. Roy Friedenthal, a Board-certified orthopedic surgeon, for an impartial medical
examination.
Based on the report of Dr. Friedenthal, by decision dated January 25, 2008, OWCP granted
appellant a schedule award for three percent permanent impairment of each lower extremity. On
January 31, 2008 appellant requested an oral hearing. By decision dated July 30, 2008, an OWCP
hearing representative affirmed the January 25, 2008 decision.
Appellant appealed to the Board. By decision dated August 24, 2009, the Board set aside
OWCP’s January 25 and July 30, 2008 decisions.4 The Board found that Dr. Friedenthal’s opinion
was not entitled to special weight as his findings were outside the statement of accepted facts.
OWCP referred appellant to Dr. William A. McNamara, a Board-certified orthopedic
surgeon, for a new impartial medical examination. Based on Dr. McNamara’s opinion, by decision
dated October 22, 2012, it found that she had no more than the previously awarded three percent
permanent impairment of each lower extremity.
On October 31, 2012 appellant, through counsel, requested an oral hearing. Following a
preliminary review, on December 12, 2012, an OWCP hearing representative vacated the
October 22, 2012 decision. He found that OWCP had improperly referred appellant to
Dr. McNamara without first attempting to obtain clarification from Dr. Friedenthal. The hearing
representative advised that Dr. McNamara’s opinion should be excluded from the record.
OWCP referred appellant to Dr. Friedenthal for a new impartial medical examination.

3

Docket No. 09-0227 (issued August 23, 2009); Docket No. 16-1613 (issued February 7, 2017).

4

Id.

2

Based on Dr. Friedenthal’s report, by decision dated August 27, 2013, OWCP granted
appellant a schedule award for an additional three percent permanent impairment of each upper
extremity.
On September 10, 2013 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
By decision dated March 20, 2014, an OWCP hearing representative vacated the
August 27, 2013 decision. She found that OWCP had failed to inform Dr. Friedenthal that
Dr. McNamara’s report was excluded. The hearing representative determined that OWCP should
refer appellant to a new impartial medical examiner (IME).
On April 10, 2015 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for an impartial medical examination.
By decision dated November 19, 2015, OWCP found that appellant was not entitled to a
schedule award for an additional impairment of either lower extremity. It found that the special
weight of the evidence, represented by Dr. Askin’s report, established that she had no impairment
as a result of her accepted employment injury.
On November 25, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. By decision dated April 29, 2016, an OWCP hearing representative
affirmed the November 19, 2015 decision.
Appellant appealed to the Board. By decision dated February 7, 2017, the Board set aside
the April 29, 2016 decision.5 The Board found that OWCP failed to demonstrate that it had
followed its procedures in selecting Dr. Askin as the IME.
On June 5, 2017 OWCP referred appellant to Dr. Philip Bobrow, a Board-certified
orthopedic surgeon, for an impartial medical examination.
On June 6, 2017 counsel advised OWCP that appellant’s address had changed.
In a July 12, 2017 impairment evaluation, Dr. Bobrow diagnosed thoracolumbar strain by
history, lumbar degenerative disc disease, status post bilateral knee contusions, and bilateral
moderate nontraumatic osteoarthritis of the knees. He found that appellant had no “residual
permanent disability as a result of the injury of March 2, 2005” based on his review of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides).6
By decision dated August 7, 2017, OWCP denied appellant’s request for an increased
schedule award. It found that the opinion of Dr. Bobrow constituted the special weight of the
evidence and established that she had no more than the previously awarded six percent permanent

5

See supra note 3.

6

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

3

impairment of each lower extremity. OWCP sent the decision to appellant at her former address
and to counsel at his correct address.
On July 9, 2018 counsel requested a copy of the case record. OWCP provided him with a
copy on August 8, 2018.
On August 20, 2018 appellant, through counsel, requested reconsideration. In an
August 18, 2018 statement, he requested that OWCP reopen the case under 5 U.S.C. § 8128(a).
Counsel asserted that he had not received a copy of the August 7, 2017 decision and that it was
not properly addressed to appellant. He further maintained that Dr. Bobrow failed to rate her
impairment using the A.M.A., Guides.
By decision dated September 17, 2018, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his or her own motion or on application.
The Secretary, in accordance with the facts found on review, may end, decrease, or increase the
compensation awarded or award compensation previously refused or discontinued.7
OWCP, through regulation, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.8 The
one-year period for requesting reconsideration begins on the date of the original OWCP decision,
but the right to reconsideration within one year also accompanies any subsequent merit decision
on the issues, including any merit decision by the Board.9 Timeliness is determined by the
document receipt date (i.e., the “received date” in OWCP’s integrated Federal Employees’
Compensation System.10 The Board has found that the imposition of the one-year limitation does
not constitute an abuse of the discretionary authority granted OWCP under section 8128(a) of
FECA.11
OWCP may not deny an application for review solely because the application was not
timely filed. When an application for review is untimely filed, it must nevertheless undertake a
limited review to determine whether the application demonstrates clear evidence of error.12
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.607(a); see also D.G., Docket No. 18-1038 (issued January 23, 2019).

9

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

10

Id. at Chapter 2.1602.4(b) (February 2016).

11

See R.L., Docket No. 18-0496 (issued January 9, 2019).

12

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

4

OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP.13
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.14
The Board notes that clear evidence of error is intended to represent a difficult standard.15
Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision
is insufficient to demonstrate clear evidence of error.16 It is not enough merely to establish that
the evidence could be construed so as to produce a contrary conclusion.17 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence demonstrates
clear error on the part of OWCP.18 The Board makes an independent determination as to whether
a claimant has demonstrated clear evidence of error on the part of OWCP.19
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The underlying issue is appellant’s entitlement to a schedule award,
and thus the initial question is whether she has submitted an application for reconsideration or a
request for an increased schedule award. If a claimant requests reconsideration of a schedule award
decision and submits new and relevant evidence with respect to an increased permanent
impairment, he or she may be entitled to a merit decision on the issue. However, if a claimant
does not submit additional relevant evidence with respect to an increased schedule award, then
OWCP may properly determine that he or she has filed an application for reconsideration of a
schedule award decision.20 In this case, appellant has not submitted additional relevant evidence

13

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.1602.5(a) (February 2016).

14

G.G., Docket No. 18-1074 (issued January 7, 2019).

15

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., Docket No. 18-0496 (issued January 9, 2019).

16

E.B., Docket No. 18-1091 (issued December 28, 2018).

17

J.W., Docket No. 18-0703 (issued November 14, 2018).

18

P.L., Docket No. 18-0813 (issued November 20, 2018).

19

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

20

C.R., Docket No. 17-0226 (issued June 26, 2018).

5

with respect to an increased permanent impairment and; therefore, OWCP properly considered her
submission as an application for reconsideration.21
An application for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.22 As appellant’s request for reconsideration was not received
by OWCP until August 20, 2018, more than one year after the issuance of its August 7, 2017
decision, it was untimely filed. Consequently, she must demonstrate clear evidence of error by
OWCP in its August 7, 2017 decision.23
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in issuing its August 7, 2017 decision. The evidence and argument she submitted failed to
raise a substantial question concerning the correctness of OWCP’s decision.24 Counsel contended
that Dr. Bobrow had failed to provide an impairment rating using the A.M.A., Guides. In his
July 12, 2017 impairment evaluation, however, Dr. Bobrow indicated that he had reviewed the
provisions of the A.M.A., Guides in reaching his conclusion. Counsel’s allegation, consequently,
is insufficient to raise a substantial question as to the correctness of OWCP’s decision.25
Counsel argued that OWCP improperly issued its August 7, 2017 as it was misaddressed
to appellant. His contention, however, does not show that OWCP erred in denying her request for
an increased schedule award. Additionally, 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.
Counsel also asserted that he failed to receive a copy of the August 7, 2017 decision. The
decision, however, was properly addressed to him and there is no indication in the record that it
was returned as undeliverable. Under the mailbox rule, a document mailed in the ordinary course
of the sender’s business practices to the addressee’s last known address is presumed to be received
by the addressee.26
On appeal counsel asserts that neither he nor appellant received a copy of the August 7,
2017 decision and that OWCP failed to consider the arguments raised in his reconsideration
request. As discussed, however, he has not raised an argument or submitted any evidence that
manifests on its face that OWCP committed an error in denying appellant’s claim or provided

21

Id.

22

20 C.F.R. § 10.607(a).

23

20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

24

See P.T., Docket No. 18-0494 (issued July 9, 2018).

25

Id.

26

See H.B., Docket No. 19-0405 (issued June 26, 2019).

6

evidence of sufficient probative value to raise a substantial question as to the correctness of
OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of error.27
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

27

See M.B., Docket No. 17-1505 (issued January 9, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., 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. 16-1169
Issued: September 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 16, 2016 appellant filed a timely appeal from a March 17, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 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

Appellant timely requested oral argument pursuant to 20 C.F.R. § 501.5(b). By order dated November 4, 2016,
the Board exercised its discretion and denied the request as appellant’s arguments on appeal could be adequately
addressed in a decision based on a review of the case on the record. Order Denying Request for Oral Argument,
Docket No. 16-1169 (issued November 4, 2016).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the March 17, 2016 decision was
issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20
C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits under
5 U.S.C. § 8106(c) for refusal of suitable work.
FACTUAL HISTORY
On June 7, 2011 appellant, then a 54-year-old sales, services/distribution associate, filed a
notice of occupational disease (Form CA-2) alleging that she developed a right knee condition on
or about March 7, 2011 due to a lot of standing and walking in the performance of duty. On
November 22, 2011 OWCP accepted the claim for right knee lateral meniscus tear and right
medial meniscus derangement (unspecified).
Subsequently it authorized May 1 and
December 21, 2012 right knee surgeries. The latter surgery involved a right total knee
arthroplasty.
OWCP placed appellant on the periodic compensation rolls and paid her wage-loss
compensation for temporary total disability through May 24, 2013. Appellant retired effective
January 31, 2013, and her election to voluntarily retire included separation incentive pay.
OWCP terminated her wage-loss compensation to avoid payment of a prohibited dual benefit.
OWCP referred appellant to Dr. James E. Butler, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of her employment-related
conditions and to determine her work capacity. In his June 11, 2013 report, Dr. Butler found that
appellant was not capable of returning to her regular job but released her to modified work with
the following restrictions: no more than two hours of walking and standing, no bending or
stooping, no more than four hours of operating motor vehicles, pushing, pulling, and lifting no
more than 10 pounds for two hours per day, and no squatting, kneeling, or climbing.
In an August 16, 2013 report, Dr. Louise Lamarre, a Board-certified family practitioner,
opined that appellant was capable of returning to light-duty work with the following restrictions:
no more than two hours of walking and standing, no bending or stooping, no more than four
hours of operating motor vehicles, pushing, pulling, and lifting no more than 10 pounds for two
hours per day, and no squatting, kneeling, or climbing. On August 21, 2013 she asserted that
appellant continued to show decreased range of motion and weakness in the right knee.
However, Dr. Lamarre was still improving as anticipated.
On August 27, 2013 the employing establishment offered appellant a modified limitedduty position as a sales, services/distribution associate. The daily physical requirements of the
job were fine manipulation, simple grasping, and sitting up to eight hours per day, standing and
walking intermittently up to two hours per day, lifting, pushing, and pulling up to 10 pounds for
two hours intermittently per day; and no squatting, kneeling, climbing, bending, or stooping.
The position would involve window sales, dispatch, and mark-up.
On August 29, 2013 appellant refused the job offer noting that she had “retired.”
In a September 20, 2013 letter, OWCP notified appellant that the modified position was
suitable, and gave appellant 30 days to accept the position or provide a written explanation for

2

her refusal. It noted that, even though she was retired, that was not a valid reason for refusing a
suitable offer of employment and she was expected to accept the offered position and return to
work if medically capable.
Subsequently, appellant submitted physical therapy reports dated August 19, 2013 and a
September 12, 2013 report from Dr. Lamarre who asserted that appellant was retired and had
been referred for more physical therapy.
In a September 26, 2013 letter, OWCP notified appellant for a second time that the
modified position was suitable, and gave her 30 days to accept the position or provide a written
explanation for her refusal. It reiterated that, even if she was retired, that was not a valid reason
for refusing a suitable offer of employment and she was expected to accept the offered position
and return to work if medically capable.
On September 30, 2013 appellant elected to receive federal retirement benefits in lieu of
FECA benefits.
On October 11, 2013 appellant filed a claim for a schedule award (Form CA-7). She
submitted a September 13, 2013 permanent impairment rating from Dr. Lamarre who found 37
percent permanent impairment of the right lower extremity based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (2009). She rated appellant based on a diagnosis of total knee replacement. On
October 23, 2013 an OWCP medical adviser found that Dr. Lamarre had used an incorrect
method of calculation and concluded that appellant had 31 percent permanent impairment of the
right lower extremity.
In an October 29, 2013 letter, OWCP afforded appellant an additional 15 days to accept
the modified position.
By decision dated November 13, 2013, OWCP granted appellant a schedule award for 31
percent permanent impairment of the right leg. It found that the date of maximum medical
improvement was noted as September 13, 2013, however, due to an overlapping compensation
period, the schedule award start date was changed to September 30, 2013, the day she elected
retirement over FECA benefits. OWCP indicated that appellant’s schedule award had been
terminated due to refusal of an offer of suitable work and the final schedule award payment was
$2,735.33 for the period October 20 to November 13, 2013.
By decision dated November 22, 2013, OWCP terminated appellant’s entitlement to
wage-loss compensation and schedule award benefits effective November 22, 2013 because she
refused suitable work. It found that the job offer was suitable based on her restrictions as
provided by Dr. Lamarre on August 16, 2013. OWCP stated that, even if appellant was retired,
this was not a valid reason for refusing a suitable offer of employment.4

4

OWCP subsequently paid appellant $984.72 for her entitlement to schedule award benefits for the period
November 14 to 22, 2013.

3

On November 26, 2013 appellant requested reconsideration of the November 22, 2013
decision. She also submitted a November 27, 2013 narrative statement reiterating the factual
history of her claim.
By decision dated March 3, 2014, OWCP denied modification of its November 22, 2013
decision.
On April 8, 2014 appellant again requested reconsideration and argued that OWCP had
misinterpreted her retirement. She indicated that she did not medically retire and, therefore, she
would not accept a job offer after her voluntary retirement.
By decision dated November 18, 2014, OWCP denied modification of its prior decision.
On December 3, 2014 appellant again requested reconsideration and submitted a
November 21, 2014 report from Dr. Lamarre who reiterated her opinion that appellant had
reached maximum medical improvement as of September 13, 2013 and had 37 percent
permanent impairment rating of the right lower extremity. Dr. Lamarre asserted that appellant
had qualified for and chosen regular retirement in January 2013.
By decision dated April 8, 2015, OWCP denied modification of its prior decision.
On October 19, 2015 appellant again requested reconsideration and inquired as to
whether or not she would be able to obtain another modified job offer.
By decision dated March 17, 2016, OWCP denied modification of its prior decision. It
noted that the possibility of obtaining another job offer of modified assignment was an issue
appellant would have to address with the employing establishment.
LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of proof to justify termination or
modification of compensation benefits.5 This includes cases where OWCP terminates
compensation under 5 U.S.C. § 8106(c) for refusal of suitable work.6 Section 8106(c) is a
penalty provision and shall be narrowly construed.7
A partially disabled employee who refuses or neglects to work after suitable work is
offered to, procured by, or secured for him is not entitled to compensation.8 It is the employee’s
burden to show that this refusal or failure to work was reasonable or justified.9 Whether an
5

James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

6

Y.A., 59 ECAB 701, 706 (2008); Henry W. Sheperd III, 48 ECAB 382, 384 (1997); Shirley B. Livingston, 42
ECAB 855, 860 (1991).
7

Stephen A. Pasquale, 57 ECAB 396, 402 (2006).

8

5 U.S.C. § 8106(c)(2); 20 C.F.R. § 10.517.

9

20 C.F.R. § 10.517.

4

employee has the ability to perform an offered position is primarily a medical question that must
be resolved by the medical evidence.10 In evaluating the suitability of a particular position,
OWCP must consider the employment-related condition(s), as well as preexisting and
subsequently acquired medical conditions.11 If medical reports in file document a condition
which has arisen since the compensable injury, and this condition disables the claimant from the
offered job, the job will be considered unsuitable even if the subsequently acquired condition is
not work related.12
When OWCP considers a job to be suitable, it shall advise the employee of its finding
and afford him 30 days to either accept the job or present any reasons to counter OWCP’s
finding of suitability.13 If the employee presents such reasons and OWCP determines that the
reasons are unacceptable, it will notify the employee of that determination and further inform the
employee that he has 15 days within which to accept the offered work without penalty.14 After
providing the 30-day and 15-day notices, OWCP will terminate the employee’s entitlement to
further wage-loss compensation and schedule award benefits.15 However, the employee remains
entitled to medical benefits.16
ANALYSIS
OWCP accepted appellant’s claim for right knee lateral meniscus tear, right medial
meniscus derangement (unspecified), chondromalacia patella, and right localized osteoarthritis.
Additionally, it authorized two right knee surgical procedures, including a December 21, 2012
total knee arthroplasty. Appellant received wage-loss compensation for temporary total
disability, and had been on the periodic compensation rolls. Effective January 31, 2013, she
voluntarily retired from federal service. Appellant subsequently elected to receive federal
retirement benefits in lieu of FECA benefits.
OWCP referred appellant to Dr. Butler for a second opinion evaluation and in his
June 11, 2013 report he found that appellant was capable of modified work with the following
restrictions: no more than two hours of walking and standing, no bending or stooping, no more
than four hours of operating motor vehicles, pushing, pulling, and lifting no more than 10 pounds
for two hours per day, and no squatting, kneeling, or climbing. In an August 16, 2013 report,
appellant’s treating physician, Dr. Lamarre concurred with Dr. Butler’s restrictions. On
10

Gayle Harris, 52 ECAB 319, 321 (2001).

11

Id.; Martha A. McConnell, 50 ECAB 129, 132 (1998).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4c(7)
(June 2013).
13

20 C.F.R. § 10.516.

14

Id. The 15-day notification need not explain why OWCP found the employee’s reasons for refusal
unacceptable. Id.
15

20 C.F.R. § 10.517(b).

16

Id.

5

August 27, 2013 the employing establishment offered appellant a modified position within these
restrictions.
The Board finds that there is no medical evidence of record showing that the offered
position exceeded appellant’s then-current medical restrictions. On August 29, 2013 appellant
refused the modified assignment noting that she had “retired” effective January 31, 2013.
Retirement, however, is not considered an acceptable reason for refusing an offer of suitable
work.17
The Board further finds that appellant received proper notice prior to termination of her
compensation. Appellant was given 30 days to provide reasons for refusal of the position and
was given an additional 15 days to accept the position after that. Accordingly, the Board finds
that OWCP complied with its procedural requirements in that it advised appellant that the
position was suitable, provided her with on opportunity to accept the position or provide reasons
for refusing the job offer, and gave her notice of the penalty provisions of section 8106(c).18
After OWCP established that the offered work was suitable, the burden shifted to
appellant to show that her refusal of suitable work was reasonable or justified.19 In an
August 21, 2013 report, Dr. Lamarre asserted that appellant continued to show decreased range
of motion and weakness in the right knee. On November 21, 2014 she reiterated her impairment
rating and asserted that appellant had qualified for and chosen regular retirement in
January 2013. The Board finds that Dr. Lamarre’s reports are insufficient to establish that the
offered position was unsuitable because she did not address why appellant could not perform the
duties of the modified position.
Accordingly, after reviewing the evidence of record, the Board finds that the offered
modified position was medically and vocationally suitable and OWCP complied with the
procedural requirements of section 8106(c) of FECA. OWCP properly terminated appellant’s
monetary compensation due to her refusal of suitable work and that she did not, thereafter,
establish that her refusal of suitable work was justified.
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 OWCP properly terminated appellant’s compensation benefits under
5 U.S.C. § 8106(c) for refusal of suitable work.

17

See Robert P. Mitchell, 52 ECAB 116 (2000); supra note 12 at Chapter 2.814.5c(4).

18

See J.J., Docket No. 14-951 (issued September 2, 2014).

19

See C.E., Docket No. 09-725 (issued November 5, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
TENNESSEE VALLEY AUTHORITY, WATTS
BAR NUCLEAR PLANT, Spring City, TN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0480
Issued: August 17, 2021

Case Submitted on the Record

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

JURISDICTION
On December 20, 2019 appellant filed a timely appeal from a July 30, 2019 merit decision
and an October 31, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective July 31, 2019, as he no longer had residuals or
disability causally related to his February 21, 1986 employment injury; and (2) whether OWCP
properly denied appellant’s request for a review of the written record as untimely filed pursuant to
5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on a different issue. The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference.2 The
relevant facts are as follows.
On March 3, 1986 appellant, then a 45-year-old filed a traumatic injury claim (Form CA-1)
alleging on February 21, 1986 that he slipped off a pipe and fell approximately two or three feet
landing on another pipe causing a lower back and hip injury while in the performance of duty. On
March 24, 1986 OWCP accepted this claim for contusion and low back sprain. Appellant returned
to work August 21 through December 4, 1986.
On December 4, 1986 appellant filed a claim for recurrence of disability (Form CA-2a)
and alleged that he had sustained a recurrence of disability due to his February 21, 1986
employment injury. By decisions dated March 25 and October 14, 1987, January 29 and
December 12, 1988, and May 31, 1989, OWCP denied his claimed recurrence of disability.
Appellant appealed to the Board and by decision dated November 30, 1989, the Board remanded
the case for further development of the medical evidence.3
On July 11, 1990 OWCP expanded acceptance of appellant’s claim to include chronic
lumbosacral strain.
By decision dated December 6, 1995, OWCP found that appellant’s position as a pipefitter
with wages of $265.18 per week fairly and reasonably represented his wage-earning capacity. It
reduced his wage-loss compensation benefits based on his actual earnings in this position.
On July 1, 2011 appellant’s attending physician, Dr. John D. Dugan, an osteopath and a
Board-certified family practitioner, diagnosed chronic pain secondary to degenerative disc disease
of the lumbar spine. He noted that this condition was worsening and permanent.
In a note dated May 21, 2013, Dr. Jeffrey S. Acree, a Board-certified family practitioner,
diagnosed knee osteoarthritis, and a 1986 work injury of a lumbar spine condition which resulted
in worsening back pain and difficulties walking. He opined that appellant was totally disabled.
On April 21, 2014 Dr. Acree again diagnosed knee osteoarthritis and noted appellant’s
1986 spine injury. He repeated his opinion that appellant had worsening back pain and could not
return to work.
On July 1, 2014 OWCP referred appellant, a statement of accepted facts (SOAF), and a
series of questions for a second opinion evaluation with Dr. Nicholas A. Grimaldi, an osteopath
and a Board-certified orthopedic surgeon. In his August 12, 2014 report, Dr. Grimaldi described
appellant’s history of injury on February 21, 1986 and performed a physical examination. He
found L4-5 degenerative disc disease, facet arthrosis, and anterior bone spurs from L2 to L5 on
2

Docket No. 89-1500 (issued November 30, 1989).

3

Id.

2

x-rays. Dr. Grimaldi diagnosed chronic low back pain and degenerative disc disease L4-5. He
opined that appellant’s accepted work injuries had not resolved, as he continued to have
degenerative disc disease in his back and chronic findings in his physical examination.
Dr. Grimaldi found that appellant could not return to work.
In a July 12, 2016 note, Dr. Acree advised that appellant was totally disabled from work
due to his chronic low back pain with arthritis, stenosis, lumbar radiculopathy, and severe
degenerative changes in both knees.
On June 26, 2017 OWCP referred appellant, a SOAF, and a series of questions for a second
opinion evaluation with Dr. Glenn L. Scott, a Board-certified orthopedic surgeon.
In a July 25, 2017 report, Dr. Scott reviewed the history of injury and acknowledged the
SOAF. He diagnosed degenerative lumbar spine and disc disease with chronic radiculopathy,
degenerative joint disease in both knee, diabetes mellitus, and chronic hypertension. Dr. Scott
found that appellant’s accepted work injuries of lumbar strain and lumbar contusion had not
resolved and that the sequelae were still present in the form of chronic progressive degenerative
lumbar spine and disc disease. He also found that appellant was not capable of returning to his
date-of-injury position.
On November 29, 2018 appellant submitted a note of even date from a physician assistant.
He also provided an August 9, 2018 lumbar MRI scan which demonstrated multilevel degenerative
changes of the lumbar spine with progression from 2010.
In a letter dated May 9, 2019, OWCP referred appellant, a SOAF, and a series of questions
for an additional second opinion evaluation with Dr. Grimaldi. In his May 30, 2019 report,
Dr. Grimaldi reviewed the SOAF and noted appellant’s history of injury. He reviewed appellant’s
diagnostic studies and diagnosed lumbar degenerative disc disease and spondylosis. In his answers
to the OWCP questions, Dr. Grimaldi opined that appellant’s lumbar strain and lumbar contusion
had resolved. He attributed appellant’s continued back pain to his disc degeneration and
spondylosis. Dr. Grimaldi opined that these conditions were not due to appellant’s accepted workrelated conditions of strain and contusion, but were due to age-related degeneration and other
nonemployment-related conditions. He found that appellant could not returned to his date-ofinjury position, but that his disability was not due to his accepted employment injuries.
In a letter dated July 27, 2019, OWCP notified appellant of the proposed termination of his
wage-loss compensation and medical benefits. It found that Dr. Grimaldi’s report was entitled to
the weight of the medical evidence and established that appellant had no disability or medical
residuals as a result of his accepted employment injuries. OWCP informed appellant that his case
would be held open for 30 days to afford him an opportunity to submit additional evidence or
argument if he disagreed with the proposed termination.
In a letter to his Congressional Representative, appellant asserted that he continued to
experience back pain, that he had two bad knees, and that he used a cane to walk and was unable
to drive.
By decision dated July 30, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 31, 2019. It found that the weight of the medical opinion
3

evidence rested with Dr. Grimaldi, who found that his employment-related disability and medical
residuals had resolved.
By appeal request form postmarked October 11, 2019, appellant requested a review of the
written record by a representative of OWCP’s Branch of Hearings and Review.
By decision dated October 31, 2019, the hearing representative denied appellant’s request
for a review of the written record as untimely filed, finding that it was made more than 30 days
after the July 30, 2019 merit decision as it was postmarked on October 11, 2019. The hearing
representative further exercised their discretion and determined that the issue in this case could
equally well be addressed by requesting reconsideration before OWCP, along with the submission
of new evidence.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, it may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.5
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 31, 2019, as he no longer had residuals or
disability causally related to his accepted February 21,1986 employment injury.
OWCP based its decision to terminate appellant’s wage-loss compensation and medical
benefits on the opinion of Dr. Grimaldi, OWCP’s second opinion physician, who found that his
accepted conditions of lumbosacral strain and lumbar contusion had resolved. Dr. Grimaldi
reviewed appellant’s diagnostic studies and concluded that the additional conditions of lumbar
degenerative disc disease and spondylosis were not due to appellant’s accepted work-related
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

J.H., Docket No. 17-1916 (issued January 9, 2019); James F. Weikel, 54 ECAB 660 (2003).

4

conditions of strain and contusion, but due to age-related degeneration. He found that appellant
could not returned to his date-of-injury position, but that his disability was not due to his accepted
employment injuries.
The factors that comprise the evaluation of medical opinion evidence include the
opportunity for and thoroughness of physical examination, the accuracy, or completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.9 As Dr. Grimaldi explained his
review of the medical evidence and the findings of his physical examination, his opinion provides
sufficient detail to constitute a rationalized medical opinion as to why appellant’s accepted
employment injuries had resolved without residuals. His opinion is sufficiently probative,
rationalized, and based upon a proper factual background10 and it represents the weight of the
medical evidence at the time of its July 30, 2019 termination decision.11 Thus, the Board finds
that OWCP properly relied on Dr. Grimaldi’s second opinion report and has met its burden of
proof to terminate appellant’s wage-loss compensation and medical benefits.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [his] claim before a representative of the
Secretary.”12
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”13 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.14 OWCP has discretion, however, to grant or

9

B.C., Docket No. 16-0978 (issued November 21, 2016); Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M.
Delaney, 53 ECAB 384 (2002).
10

A.B., Docket No. 16-0480 (issued August 29, 2016).

11

C.P., Docket No. 15-0617 (issued August 4, 2015).

12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

Id. at § 10.616.

5

deny a request that is made after this 30-day period.15 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that a request for review of the written record must be made
within 30 days of the date of the decision for which a review is sought. Appellant’s October 8,
2019 request for a review of the record was postmarked on October 11, 2019, more than 30 days
after the issuance of OWCP’s July 30, 2019 merit decision. Because the postmark date was more
than 30 days after the date of OWCP’s July 30, 2019 decision, the Board finds that the request was
untimely filed and he was not entitled to a review of the written record as a matter of right. 17
Although appellant was not entitled to a hearing as a matter of right, OWCP’s Branch of
Hearings and Review may exercise its discretion to either grant or deny a hearing following
reconsideration.18 In this instance, the hearing representative denied a discretionary review of the
written record because appellant could instead submit new evidence and request reconsideration
before OWCP. The Board finds that the hearing representative properly exercised their
discretionary authority in denying appellant’s request for an oral hearing.19
The Board has held that the only limitation on OWCP’s authority is reasonableness.20 An
abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.21 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant s request for a review of the written record. Accordingly, the
Board finds that OWCP properly denied appellant s request for a review of the written record.

15

G.W., Docket No. 10-0782 (issued April 23, 2010).

16

Id.

17
The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).
18

D.E., 59 ECAB 438, 442-43 (2008); J.C., 59 ECAB 206, 210-11 (2007).

19

Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from known facts. André
Thyratron, 54 ECAB 257, 261 (2002).
20

R.M., Docket No. 19-1088 (issued November 17, 2020).
March 11, 2019).
21

P.C., Docket No. 19-1003 (issued December 4, 2019).

6

See also E.S., Docket No. 18-1750 (issued

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective July 30, 2019. The Board further finds that OWCP
properly denied appellant’s request for review of the written record as untimely,
5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the July 30 and October 31, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7