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

)
)
)
)
)
)
)
)

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

Docket No. 12-827
Issued: September 4, 2012

Oral Argument August 1, 2012

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 5, 2012 appellant timely appealed the September 27, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied his recurrence claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant’s claimed recurrence beginning April 26, 2009 is causally
related to his February 28, 2001 employment injury.
FACTUAL HISTORY
Appellant, a 67-year-old letter carrier, has an accepted occupational disease claim for left
knee sprain, which arose on or about February 28, 2001. On April 25, 2001 he underwent
arthroscopic surgery to repair a torn left medial meniscus. OWCP paid appropriate wage-loss
1

5 U.S.C. §§ 8101-8193.

compensation for the period April 4 to July 25, 2001. Following surgery, appellant performed
light-duty work for several weeks and then resumed his regular duties effective August 29, 2001.
When OWCP accepted the claim on August 15, 2001, appellant had already undergone
left knee arthroscopy for a torn medial meniscus. In accepting the claim for left knee sprain,
OWCP did not specifically address whether the diagnosed meniscus tear and associated surgery
were also causally related to his February 28, 2001 employment injury.2 Despite not having
formally accepted any condition other than knee sprain, it later compensated appellant for lost
wages covering a four-month period that coincided with his April 25, 2001 surgery and
recuperation. On May 6, 2002 appellant submitted the bill for his April 25, 2001 surgical
procedure. To date, OWCP has not formally responded to his May 6, 2002 submission.
On October 6, 2009 both appellant and his HMO (Kaiser Permanente) contacted OWCP
regarding authorization for additional surgery. OWCP advised him that his claim had been
closed for over seven years and that he would have to file either a new claim or a claim for
recurrence (Form CA-2a).
On April 15, 2010 appellant filed a claim for recurrence beginning April 26, 2009. In
May 2010, he was diagnosed with severe left knee osteoarthritis and advised to undergo surgery.
On June 1, 2010 Dr. Lawrence H. Albinski, a Board-certified orthopedic surgeon, performed a
left total knee arthroplasty.
The medical evidence submitted in support of appellant’s claimed recurrence included,
inter alia, a May 25, 2010 report from Dr. Robert E. Sallis, appellant’s treating physician, and a
March 18, 2011 report from Dr. Guirguis S. Hanna, a Board-certified physiatrist.
In his May 25, 2010 report, Dr. Sallis noted a history of a work-related meniscus tear in
2001 with surgery and subsequent development of osteoarthritis.3 He explained that appellant’s
current knee pain was a progression of the original injury with worsening osteoarthritis.
Dr. Sallis further indicated that appellant’s condition initially improved with surgery, but his
symptoms had since returned and were not responsive to cortisone shots or other treatment. He
also noted that appellant was awaiting knee replacement surgery.
Dr. Hanna examined appellant on February 14, 2011 for purposes of determining the
cause of his current left knee condition. In his March 18, 2011 report, he noted a history of
injury on February 28, 2001. Appellant was reportedly going uphill in the rain when his left foot
slipped and his knee twisted. Dr. Hanna noted that appellant had undergone arthroscopic surgery
on April 25, 2001, and later resumed his regular duties. Appellant’s left knee pain persisted, but
he was able to tolerate the pain with over-the-counter Motrin or Tylenol. Dr. Hanna further
2

On or before August 15, 2001, the only evidence reflecting a left knee sprain consisted of two duty status reports
(Form CA-17) dated April 4 and 5, 2001 from Dr. Mark A. Martinez, Board-certified family practitioner and
Dr. Flora H. Johnson, Board-certified in medical malpractice, respectively. OWCP subsequently received an
April 5, 2001 narrative report from Dr. Martinez wherein he diagnosed left knee medial meniscus tear. Most of the
medical evidence submitted on or before OWCP’s August 15, 2001 acceptance pertained to a left knee medial
meniscus tear, rather than the less severe accepted condition of left knee sprain.
3

Dr. Sallis is a Board-certified family practitioner with a subspecialty in sports medicine.

2

noted that appellant’s orthopedic surgeon had reportedly advised appellant that he may develop
arthritis. Additionally, he reported that in 2008 appellant noted a gradual worsening of his left
knee pain. Appellant then returned to Dr. Sallis and received a couple steroid injections in his
left knee. The injections provided only temporary relief and he was subsequently referred to
Dr. Albinski, who performed a left total knee arthroplasty on June 1, 2010. Following surgery,
appellant returned to part time, limited duty on January 31, 2011. When Dr. Hanna examined
appellant in February 2011, he was awaiting reevaluation by his surgeon, which was scheduled
for June 2011.
Dr. Hanna’s diagnostic impression included left knee osteoarthritis, history of left knee
arthroscopy and history of knee joint replacement. He noted that appellant continued to have
weakness in the left quadriceps and diminished left knee range of motion. Dr. Hanna believed
appellant might benefit from additional physical therapy to improve strength and function of the
left lower limb. He also believed there was a causal relationship between appellant’s
February 28, 2001 injury and the development of the left knee osteoarthritis, which required total
knee replacement. Dr. Hanna explained that previous meniscectomy surgery is an accepted risk
factor and there is strong evidence correlating it with knee osteoarthritis. He further explained
that a review of the medical literature revealed some evidence correlating knee osteoarthritis
with heavy physical demand.
In a decision dated July 2, 2010, OWCP denied appellant’s recurrence claim. The
Branch of Hearings & Review affirmed the denial on November 10, 2010 and on September 27,
2011, it denied modification.
LEGAL PRECEDENT
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.4 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
resulted from a previous injury or illness without an intervening injury or new exposure to the
work environment that caused the illness.5 This latter term also means an inability to work when
a light-duty assignment specifically made to accommodate an employee’s physical limitations
due to his work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force) or when the
physical requirements of such an assignment are altered such that they exceed the employee’s
established physical limitations.6 Absent a change or withdrawal of a light-duty assignment, a
recurrence of disability following a return to light duty may be established by showing a change

4

20 C.F.R. § 10.5(y). Continuous treatment for the original condition or injury is not considered a “need for
further medical treatment after release from treatment,” nor is an examination without treatment. Id.
5

Id. at § 10.5(x).

6

Id.

3

in the nature and extent of the injury-related condition such that the employee could no longer
perform the light-duty assignment.7
Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he has the burden of establishing that the recurrence of disability is
causally related to the original injury.8 This burden includes the necessity of furnishing evidence
from a qualified physician who concludes, on the basis of a complete and accurate factual and
medical history, that the condition is causally related to the employment injury.9 The medical
evidence must demonstrate that the accepted injury caused, precipitated, accelerated or
aggravated the claimed recurrence.10
ANALYSIS
While Dr. Sallis’ and Dr. Hanna’s reports are insufficient to discharge appellant’s burden
of proving that his left knee osteoarthritis was causally related to his February 28, 2001
employment injury, their opinions are sufficient to require further development of the case record
by OWCP.11 Dr. Sallis opined that appellant’s current knee condition was a progression of the
original injury with worsening osteoarthritis. Dr. Hanna opined that there was a causal
relationship between appellant’s February 28, 2001 injury and the development of his left knee
osteoarthritis, which required total knee replacement. Moreover, the current record does not
include any rationalized medical evidence attributing appellant’s osteoarthritis to some other
nonindustrial cause.
OWCP has consistently questioned the existence of a causal relationship between
appellant’s current condition and his accepted employment injury because of the lack of medical
evidence revealing bridging symptoms from 2001 to 2010. As documented in Dr. Hanna’s
March 18, 2011 report, appellant reported that after returning to work in 2001, his left knee pain
persisted, but he was able to tolerate the pain with over-the-counter Motrin or Tylenol. This
continued until 2008 when appellant noted a gradual worsening of his left knee pain, at which
point he saw Dr. Sallis, who began administering cortisone injections. The absence of
contemporaneous medical evidence of bridging symptoms is not proof that a causal relationship
does not exist, particularly where appellant claimed to have continued to work in pain for several
years with the aid of over-the-counter medication and apparently did not seek medical attention
for his injured left knee.

7

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

8

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
9

See Helen K. Holt, supra note 8.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

11

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

4

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.12
On remand, OWCP should refer appellant to an appropriate specialist, along with the
case record and a statement of accepted facts. OWCP’s referral physician should provide an
evaluation and a rationalized medical opinion on whether appellant’s left knee osteoarthritis and
total knee arthroplasty are employment related. After such further development of the case
record as OWCP deems necessary, a de novo decision shall be issued.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2011 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: September 4, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-995
Issued: October 22, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 29, 2012 appellant filed a timely appeal of an October 4, 2011 schedule award
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 schedule award issue.
ISSUE
The issue is whether appellant sustained a ratable impairment entitling him to a schedule
award.
FACTUAL HISTORY
On March 23, 2001 appellant, then a 49-year-old letter carrier, injured his back while in
the performance of duty. He underwent decompressive laminectomy, lateral transverse process
fusion, posterior lumbar interbody fusion, intervertebral spacer placement and pedicle screw
1

5 U.S.C. § 8101 et seq.

instrumentation at L3-4, L4-5 and L5-S1 in 2006. OWCP accepted the claim for lumbago,
displacement of lumbar intervertebral disc without myelopathy, encephalopathy, constipation,
adjustment disorder with mixed anxiety and depressed mood and other psychogenic pain and
paid disability compensation accordingly. Appellant stopped work on October 9, 2006 and did
not return. He was subsequently implanted with a spinal cord stimulator on January 24, 2008,
which was later revised on December 2, 2010.2
Appellant filed a claim for a schedule award on May 6, 2011. In a June 13, 2011 report,
Dr. Steven C. Poletti, his attending physician and a Board-certified orthopedic surgeon, noted
that appellant experienced bilateral lower extremity weakness and atrophy. Citing an
unspecified edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment3 (A.M.A., Guides), Dr. Poletti assigned a whole-person impairment
rating of 25 percent.4
On July 5, 2011 Dr. James W. Dyer, an OWCP medical adviser and Board-certified
orthopedic surgeon, reviewed Dr. Poletti’s report. He pointed out that the impairment rating was
not based on the standard set forth in the A.M.A., Guides supplement “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition”5 (The Guides Newsletter).
Dr. Dyer
recommended a second opinion examination.
OWCP referred appellant for a second opinion examination to Dr. William L. Lehman,
Jr., a Board-certified orthopedic surgeon. In an August 22, 2011 report, Dr. Lehman reviewed
the July 12, 2011 statement of accepted facts and medical file. On examination he observed
restricted lumbar flexion and diminished bilateral ankle jerk reflex as well as the absence of
bilateral lower extremity sensory and motor deficits, edema, atrophy and deformity. Dr. Lehman
opined that appellant did not sustain spinal nerve extremity impairment as described in The
Guides Newsletter. He explained that there was no objective evidence of any specific muscle
atrophy or loss of strength that would suggest ongoing radiculopathy. Dr. Lehman stated that
electrical studies were normal and that motor and sensory examination of both legs was normal.
He alternatively assigned a three-percent whole-person impairment rating due to pain.
On September 28, 2011 Dr. Dyer reviewed Dr. Lehman’s August 22, 2011 report and
agreed that appellant did not sustain spinal nerve extremity impairment. He noted that
Dr. Lehman’s whole-person impairment rating of three percent was inappropriate.
By decision dated October 4, 2011, OWCP denied appellant’s schedule award claim,
finding the medical evidence insufficient to establish permanent impairment of a scheduled
member.
2

The foregoing information was incorporated into a July 12, 2011 statement of accepted facts.

3

See infra note 7.

4

Appellant also submitted records from physician assistants dated January 25 and August 2, 2011.
addressed the issue of permanent impairment.
5

None

Christopher R. Brigham, M.D., “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition,” The
Guides Newsletter (July and August 2009).

2

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.6 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
Although the A.M.A., Guides presents methods for estimating impairment to the spine
and to the whole person,8 FECA does not authorize schedule awards for loss of use of the back,
spine or the body as a whole.9 Amendments to FECA, however, modified the schedule award
provision to allow for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provisions of FECA include the extremities, a
claimant may be entitled to a schedule award for permanent impairment to a limb even though
the cause of the impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.11 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.12
ANALYSIS
The Board finds that appellant did not sustain a ratable impairment of a scheduled body
member.
6

5 U.S.C. § 8107; 20 C.F.R. § 10.404. No schedule award is payable for a member, function or organ of the
body not specified under FECA or the implementing regulations. J.Q., 59 ECAB 366 (2008).
7

K.H., Docket No. 09-341 (issued December 30, 2011). See generally A.M.A., Guides (6th ed. 2008).

8

See B.M., Docket No. 09-2231 (issued May 14, 2010); Janae J. Triplette, 54 ECAB 792 (2003).

9

J.Q., supra note 6. FECA expressly defines “organ” as “a part of the body that performs a special function and
for purposes of this subchapter excludes the brain, heart and back.” 5 U.S.C. § 8101(19). Also, a description of
impairment in terms of “whole person” or “whole body” is not probative as to the extent of loss of use of a specific
scheduled member of the body under section 8107 of FECA. R.I., Docket No. 09-1559 (issued August 23, 2010).
10

W.D., Docket No. 10-274 (issued September 3, 2010); Rozella L. Skinner, 37 ECAB 398 (1986).

11

L.J., Docket No. 10-1263 (issued March 3, 2011).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

3

OWCP accepted that appellant sustained lumbago, displacement of lumbar intervertebral
disc without myelopathy, encephalopathy, constipation, adjustment disorder with mixed anxiety
and depressed mood and other psychogenic pain as a result of a March 23, 2001 injury.
Thereafter, appellant filed a claim for a schedule award and submitted medical evidence.
Dr. Poletti, appellant’s attending physician, assigned a 25-percent whole-person impairment
rating in a June 13, 2011 report. As noted, FECA does not permit schedule awards for
impairment of the back or the body as a whole. As Dr. Dyer correctly pointed out, Dr. Poletti
did not utilize the standard set forth in The Guides Newsletter for rating impairment to the lower
extremities caused by a spinal injury. He only alluded to an unspecified version of the A.M.A.,
Guides. Thus, Dr. Poletti failed to establish permanent impairment of a scheduled body
member.13
Dr. Lehman’s August 22, 2011 report constitutes the weight of the medical evidence with
regard to whether appellant has a ratable impairment of his legs. The weight of the 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.14
Dr. Lehman reviewed the July 12, 2011 statement of accepted facts, the medical file and
performed a comprehensive physical evaluation. He observed the lack of bilateral lower
extremity sensory and motor deficits and concluded that a schedule award for impairment of the
legs was not warranted under The Guides Newsletter.15 Although Dr. Lehman found three
percent whole person impairment due to pain, FECA, as noted, does not allow schedule awards
for impairment of the spine or the body as a whole. An OWCP medical adviser reviewed the
matter and concurred with Dr. Lehman that appellant had no ratable impairment of either leg. In
view of the totality of the medical evidence, the Board finds that OWCP properly denied
appellant’s claim.
Appellant contends on appeal that the medical evidence sufficiently established that he
sustained a ratable impairment of a scheduled member. He also asserts that Dr. Lehman
fabricated his report. The Board has noted the deficiencies in Dr. Poletti’s report. The case
record does not provide evidence corroborating appellant’s allegation of misconduct. The Board
notes that he submitted new evidence after issuance of the October 4, 2011 decision. However,
the Board lacks jurisdiction to review evidence for the first time on appeal.16
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment.

13

The Board adds that Dr. Poletti did not offer a rationalized opinion as to the percentage of permanent
impairment. See id. at Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6(a)-(c)
(January 2010).
14

I.R., Docket No. 09-1229 (issued February 24, 2010); James Mack, 43 ECAB 321, 329 (1991).

15

The Board agrees with Dr. Dyer that Dr. Lehman’s whole-percent impairment rating of three percent was
improper. See supra note 9.
16

20 C.F.R. § 501.2(c).

4

CONCLUSION
The Board finds that appellant did not sustain a ratable impairment.
ORDER
IT IS HEREBY ORDERED THAT the October 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Philadelphia, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1921
Issued: August 20, 2020

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 September 17, 2019 appellant, through counsel, filed a timely appeal from a May 23,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 appellant has met her burden of proof to establish a recurrence of total
disability, commencing August 13, 2016, causally related to her accepted March 2, 2016
employment injury.
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 March 2, 2016 appellant, then a 49-year-old city carrier, ﬁled a traumatic injury claim
(Form CA-1) alleging that on that date she slipped on a step and fell on her right knee while in the
performance of duty. She indicated that she suffered a right knee contusion. Appellant stopped
work on the date of injury. On May l6, 2016 OWCP accepted the claim for right knee contusion.
On March 15, 2016 appellant accepted a limited-duty job offer as a full-time regular city carrier.
She received intermittent wage-loss compensation on the supplemental rolls from April 19 to
May 26, 2016.
A March 28, 2016 magnetic resonance imaging (MRI) scan interpreted by Dr. Victoria
Griffiths, a Board-certified diagnostic radiologist, demonstrated small intra-articular loose body at
the anterior joint line, meniscal degeneration with no definitive tear, a question of mild popliteus
tendinosis, moderate effusion, and chondromalacia patella.
In a June 8, 2016 report, Dr. Thomas L. Teater, a Board-certified orthopedic surgeon,
diagnosed a right knee contusion with joint effusion and traumatic chondromalacia of the right
knee. He released appellant to return to full-duty work without restrictions, effective June 9, 2016.
Dr. Teater also completed a form on June 8, 2016 wherein he listed her right knee diagnoses of
recurrent dislocation, chondromalacia, loose body, contusion, and prepatella bursitis. He also
advised that appellant should remain out of work until June 9, 2016.
In an August 3, 2016 report, Dr. Teater noted that appellant returned for follow-up related
to her March 2, 2016 right knee injury. He related that she had recurrent pain and swelling and
had undergone previous injections, but any benefit that was gained had dissipated. Dr. Teater
diagnosed right knee contusion with joint effusion and traumatic chondromalacia right knee, loose
body. He advised that, due to appellant’s persistent symptoms despite conservative care,
authorization for arthroscopy with chondroplasty would be requested.
Dr. Teater treated appellant on August 12, 2016, repeated his diagnoses, and advised that
she “may not return to work” in any capacity, but could return to work without restrictions as of
September 6, 2016.
On August 19, 2016 appellant ﬁled a notice of recurrence (Form CA-2a). She indicated
that she sustained a recurrence of the March 2, 2016 employment injury on July 30, 2016, which
3

L.T., Docket No. 18-1311 (issued April 19, 2019).

2

caused her to stop work on August 13, 2016. Appellant noted that for a brief period she had
received relief to her knee from an epidural injection. However, she explained that her knee
steadily began pinching and locking and became very painful to climb up and down stairs.
Appellant noted that she was “not sure this is recurring, as pain was relieved from injection, but
short term.” She also indicated that she was awaiting authorization for a knee arthroscopy.4 On
the reverse of the claim form, the employing establishment indicated that appellant returned to
full-time regular duty on June 9, 2016.
In a development letter dated August 25, 2016, OWCP advised appellant that additional
medical evidence was necessary to establish her recurrence claim. It explained that a recurrence
of disability was deﬁned as a work stoppage 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 that caused the illness. OWCP explained that a recurrence
also could be caused by a withdrawal of a light-duty assignment made speciﬁcally to accommodate
appellant’s condition due to the work-related injury. It also explained that if the evidence
established that the disability was due to a new work-related injury or illness, a new claim may
need to be ﬁled/created. OWCP afforded appellant 30 days to submit the necessary evidence.
Appellant provided an August 28, 2016 response to the development letter. She indicated
that she had been released to full-duty work after a steroid injection improved her symptoms.
Appellant explained that her duties as a letter carrier required that she continuously walk and climb
steps for six or more hours a day, and she denied that an incident triggered a recurrence. She
explained that she believed the steroid injection wore off and her knee worsened. Appellant noted
that her MRI scan revealed loose fragments, which she believed were the cause of her pain. She
explained that her knee was locking and pinching, and her physician recommended an arthroscopic
procedure.
OWCP received additional reports from Dr. Teater from April 1 to October 7, 2016. In an
April 1, 2016 report, Dr. Teater advised that appellant returned for follow up of her March 2, 2016
work-related right knee injury. He noted that she continued to have pain and swelling. Dr. Teater
diagnosed: right knee contusion with joint effusion, traumatic chondromalacia, right knee, and
loose body. He explained that the March 28, 2016 MRI scan of the right knee demonstrated a
small intra-articular loose body at the anterior joint line, meniscal degeneration with no deﬁnitive
tear, a question of mild popliteus tendinosis, moderate effusion, and chondromalacia patella.
Dr. Teater opined, “[i]n my medical opinion, this is a direct result of her work-related injury on
[March 2, 2016].”
Dr. Teater saw appellant on May 11, 2016 and repeated his ﬁndings and diagnoses. He
completed a duty status report (Form CA-17) and recommended return to full-duty work on
July 5, 2016.
In a September 7, 2016 report, Dr. Teater repeated his prior opinion and noted that
appellant needed surgical intervention. He completed a duty status report (Form CA-17) on
September 7, 2016 and advised that she could not return to work. In a separate work excuse note
4

On August 24, 2016 OWCP received a request for authorization of right knee arthroscopy.

3

dated September 7, 2016, Dr. Teater indicated that appellant could return to work without
restrictions on October 10, 2016.
In a September 21, 2016 report, Dr. Teater advised that he was providing a response to
OWCP’s August 25, 2016 development letter. He explained that appellant’s current diagnosis was
post-traumatic chondral injury (chondromalacia). Dr. Teater opined that her pain was caused by
prolonged standing and especially walking and that her current conditions and disability were
caused from her original fall on March 2, 2016.” He explained that appellant had failed
conservative treatment and recommended a right knee arthroscopy with chondroplasty and
removal of loose body.
By decision dated October 19, 2016, OWCP denied appellant’s recurrence claim, ﬁnding
that she had not established that she was disabled from work due to a material change or worsening
of her accepted work-related condition.5
On May 5, 2017 counsel requested reconsideration and submitted additional evidence.
OWCP received the previously submitted May 11, 2016 report from Dr. Teater and additional
reports for the period November 2, 2016 to June 27, 2017.
In the November 2, 2016 report, Dr. Teater provided physical examination ﬁndings and
recommendations for work restrictions beginning November 7, 2016.
In his December 14, 2016 and February 3, 2017 reports, Dr. Teater repeated his opinion
that the diagnoses of right knee contusion with joint effusion, traumatic chondromalacia right knee,
and loose body, were a direct result of the March 2, 2016 work-related injury. He explained that
appellant’s fall on to the front of her knee directly corresponded with her pathology as noted on
her MRI scan that evidenced a patella-femoral injury (chondromalacia) with a resultant loose
chondral body. Dr. Teater further explained that she had made an attempt to return to her regular
job without success. He noted that “[u]nfortunately, this attempt, which was by [appellant’s] own
request, has resulted in a denial of her claim as they felt she was ‘cured’ while making this attempt.
[Appellant] was not asymptomatic at that time.” Dr. Teater indicated that she should undergo
arthroscopy.
Dr. Teater also completed a February 3, 2017 duty status report (Form CA-17) indicating
that appellant could return to full-duty work as of May 1, 2017.
In an April 19, 2017 report, Dr. Teater explained that on March 2, 2016, appellant
sustained a work-related right knee injury while carrying mail. He noted that she tripped going up
stairs, falling directly on to the front of her right knee, and striking the patella against the distal
femur. Dr. Teater indicated that appellant had an acute onset of pain and swelling and that despite
5

It explained that Dr. Teater had diagnosed additional right knee conditions, which indicated that she sustained a
new injury after returning to work. OWCP also explained that appellant described extensive standing, walking, and
climbing stairs that would have aggravated or exacerbated a degenerative condition. It found that the medical
necessity of the requested surgery was not consistent with a resolved knee contusion. OWCP explained that the
evidence submitted established that the disability was due to a new work-related injury or illness, and that a new claim
needed to be ﬁled. It informed appellant that this was the case, even if the new incident or exposure involved the same
part of the body as previously affected.

4

conservative care, the swelling and pain persisted, along with intermittent “clicking.” He
examined the knee and diagnosed right knee contusion with post-traumatic patella-femoral
articular injury (chondromalacia) and loose body. Dr. Teater explained that appellant’s workrelated diagnosis should include the right knee contusion and patella-femoral articular injury
(chondromalacia) and an intra-articular loose body. He opined that “[b]ased upon a reasonable
degree of medical certainty, it is my medical opinion that the work-related injury on March 2, 2016
is a direct and proximate cause of the above-noted diagnosis.”
Dr. Teater continued to treat appellant. In an April 26, 2017 report, Dr. Teater opined that
“[once] again her present symptoms are directly related to her original injury. The fall on to the
front of her knee directly corresponds to her pathology as noted on her MRI scan, there is
patellofemoral injury (chondromalacia) with a resultant loose chondral body.” Dr. Teater noted
that despite continued symptoms, appellant attempted to return to her regular position at work
without success. He indicated that her attempt was by “her own request” and resulted in the denial
of her claim based on a finding that she was “cured” while making the attempt. Dr. Teater
indicated that appellant was not symptomatic at the time of his report and recommended that she
continue her work restrictions.
In a June 27, 2017 report, Dr. Teater repeated his previous findings and recommended
continued restricted duty.
By decision dated February 5, 2018, OWCP denied appellant’s request for reconsideration,
ﬁnding that the evidence submitted was cumulative and substantially similar to evidence or
documentation already contained in the case ﬁle and previously considered. It explained that the
medical reports did not provide a rationalized medical opinion explaining why appellant stopped
work on August 13, 2016, due to a material worsening and/or spontaneous change in her medical
condition stemming from the March 2, 2016 work injury.
On June 20, 2018 appellant, through counsel, ﬁled a timely appeal to the Board from the
OWCP’s February 5, 2018 nonmerit decision. In an April 19, 2019 decision, the Board found that
the case was not in posture for decision. It explained that the signiﬁcant delay in issuance of a
reconsideration decision by OWCP had impacted appellant’s ability to submit additional evidence
or argument and file a timely request for reconsideration. To preserve appellant’s right to ﬁle a
timely request for reconsideration and to afford her the ability to present further evidence or
argument to establish her claim, the Board remanded the case to OWCP for a merit review of the
evidence of record, to be followed by an appropriate decision.
By decision dated May 23, 2019, OWCP denied modification of the October 19, 2016
decision.
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 that caused

5

the illness.6 An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that an employee furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the disabling condition is causally related to the employment injury and supports
that conclusion with sound medical reasoning.7 Where no such rationale is present, medical
evidence is of diminished probative value.8
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP received a series of reports from appellant’s treating physician, Dr. Teater.
Dr. Teater had released appellant to return to full-duty work as of June 9, 2016. However, on
August 12, 2016 he reported that she was totally disabled from work.
In his April 19, 2017 report, Dr. Teater explained that when appellant fell on March 2, 2016
she fell on to the front of her right knee striking her patella against the distal femur. He further
related that her March 28, 2016 right knee MRI scan demonstrated knee joint effusion, patellfemoral articular injury and intra-articular loose body, which led to her diagnoses of right knee
contusion and post-traumatic patello-femoral articular injury (chondromalacia) and loose body. In
his April 26, 2017 report, Dr. Teater explained that appellant’s fall onto her right knee directly
corresponded with her pathology, as noted on her MRI scan. He also noted that she had attempted
to return to work, at her own request, despite the fact that she had continuing symptoms, which led
to the denial of her recurrence claim as it was assumed that appellant was “cured” because she
attempted to return to work.
It is well established that proceedings under FECA are not adversarial in nature, and while
the claimant has the burden to establish entitlement to compensation, OWCP shares responsibility
in the development of the evidence.9
The Board finds that the reports from Dr. Teater, while lacking detailed medical rationale,
are sufficient to require OWCP to further develop whether the claim should be expanded to include
a post-traumatic patello-femoral articular injury (chondromalacia) and a loose body as causally
related to the accepted March 2, 2016 employment injury.10 On remand OWCP shall refer
appellant, a statement of accepted facts, a position description, and the medical evidence of record
to an appropriate Board-certified specialist for an examination, diagnosis, and a rationalized
6

20 C.F.R. § 10.5(x); J.B., Docket No. 16-0863 (issued July 26, 2016); R.S., 58 ECAB 362 (2007).

7

J.D., Docket No. 18-0616 (issued January 11, 2019); C.C., Docket No. 18-0719 (issued November 9, 2018).

8

J.K., Docket No. 18-0854 (issued June 5, 2020). H.T., Docket No. 17-0209 (issued February 8, 2018).

9

See R.M., Docket No. 20-0342 (issued July 30, 2020); S.C., Docket No. 19-0920 (issued September 25, 2019).

10

John J. Carlone, 41 ECAB 354 (1989).

6

opinion regarding whether additional conditions should be accepted and whether appellant was
totally disabled from work commencing on or after August 13, 2016 due to the accepted March 2,
2016 employment injury. After this and other such further development as deemed necessary,
OWCP shall issue a de novo decision on appellant’s recurrence claim.11
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: August 20, 2020
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

11

20 C.F.R. § 10.121.

7


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

)
)
)
)
)
)
)
)

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

Docket No. 20-0540
Issued: December 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 13, 2020 appellant filed a timely appeal from a September 19, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 has days
elapsed from OWCP’s last merit decision, dated July 2, 2019, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this claim.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the written
record by an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On April 1, 2019 appellant, then a 60-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a knee condition due to factors of her federal
employment. She explained that she initially thought her condition was related to a fall that
previous year, but later indicated that it was repetitive in nature. Appellant indicated that she first
realized her condition was caused or aggravated by her federal employment on March 16, 2019.
In an undated statement, appellant noted that she had been working full time for the
employing establishment since 1997. Her job responsibilities included casing mail, lifting flats of
magazines and large flat envelopes weighing up to 33 pounds, pulling down mail into a hard plastic
tray weighing up to 44 pounds, and loading parcels of various weight into her mail truck.
Appellant indicated that she initially believed she sustained a traumatic injury on March 16, 2018,
but later found out that she had degenerative ligaments of the knees due to years of lifting mail.
In support of her claim, appellant submitted an April 1, 2019 report from Dr. Neelesh B.
Fernandes, a Board-certified physiatrist, who noted that he had been treating appellant for injuries
sustained on March 16, 2018 when she fell onto and twisted her left knee. Dr. Fernandes indicated
that appellant had never been treated for knee conditions previously. He described appellant’s job
duties as including prolonged walking up to 10 miles per day and bending at the knees while
sorting trays, rearranging parcels, and casing mail at work. Dr. Fernandes noted that a July 20,
2018 x-ray showed mild osteoarthritis of the knee. He opined that appellant’s listed job duties
would be enough to cause osteoarthritis due to repetitive use and that the fall on March 16, 2018
would be enough to aggravate her osteoarthritis.
In a development letter dated April 15, 2019, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical information needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond.
In a May 5, 2019 response to OWCP’s development questionnaire, appellant reiterated that
she was first employed by the employing establishment in 1992. She detailed her work duties over
the years, as well as her current daily work routine, which included sorting and bundling mail,
lifting tubs and trays weighing up to 44 pounds, and loading them into her mail truck. Appellant
asserted that she had no problems with her knees until March 16, 2018 when she slipped when
attempting to step into her truck and landed on her left side. Following the fall, she alleged that
she had pain in her knee and could barely walk. Appellant was subsequently advised by her doctors
that the fall aggravated her degenerated knee condition.
Dr. Fernandes, in an industrial work status report dated June 3, 2019, diagnosed arthritis
of the left knee, left knee anterior cruciate ligament (ACL) sprain, left knee joint pain, and left
knee sprain. He released appellant to return to work without restrictions on June 3, 2019. In an

2

office visit note of even date, Dr. Fernandes noted that he had treated appellant for arthritis of the
left knee, knee ligament sprain, left knee joint pain, and knee pain.
By decision dated July 2, 2019, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
left knee conditions and the accepted factors of her federal employment.
On an appeal request form dated August 25, 2019, postmarked August 26, 2019 and
received by OWCP on September 5, 2019, appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
By decision dated September 19, 2019, OWCP’s hearing representative denied appellant’s
request for a review of the written record, finding that the request was untimely as it was not
postmarked within 30 days of the July 2, 2019 decision. After exercising its discretion, the hearing
representative informed appellant that the merits of the claim could equally well be addressed by
requesting reconsideration and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124 FECA, concerning a claimant’s entitlement to a hearing before an OWCP
hearing representative, provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made 30 days after issuance of an OWCP final decision.3
A hearing is a review by an OWCP hearing representative of a final adverse decision issued
by an OWCP district office.4 Initially, the claimant can choose between either an oral hearing or
a review of the written record. In addition to the evidence of record, the claimant may submit new
evidence to the hearing representative.5 A request for either an oral hearing or a review of the
written record must be sent, in writing, within 30 days of the date of the decision for which the
hearing is sought.6 A claimant is not entitled to a hearing or a review of the written record if the
request is not made within 30 days of the date of the decision.7
Although there is no right to a review of the written record or an oral hearing, if not
requested within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.8

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.616.

5

Id. at § 10.615.

6

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

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

8
P.C., Docket No. 19-1003 (issued December 4, 2019); M.G., Docket No. 17-1831 (issued February 6, 2018);
Eddie Franklin, 51 ECAB 223 (1999).

3

ANALYSIS
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(b).
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. Because appellant’s
August 25, 2019 request for review of the written record was postmarked August 26, 2019, it postdated OWCP’s July 2, 2019 decision by more than 30 days and was therefore untimely. As such,
she was not entitled to review of the written record as a matter of right.9
OWCP also has the discretionary power to grant an oral hearing or review of the written
record even if the claimant is not entitled to a review as a matter of right. The Board finds that
OWCP, in its September 19, 2019 decision, properly exercised its discretion noting that it had
considered the matter in relation to the issue of recurrence and determined that the issue could be
equally well addressed through a request for reconsideration before OWCP, along with the
submission of additional medical evidence.
The Board has held that as the only limitation on OWCP’s authority is reasonableness. An
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 deduction
from established facts.10 Herein, the evidence of record does not establish that OWCP abused its
discretion in 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.
CONCLUSION
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(b).

9

D.S., Docket No. 19-1764 (issued March 13, 2020).

10

See T.G., Docket No. 19-0904 (issued November 25, 2019); Daniel J. Perea, 42 ECAB 214 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakeland, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1780
Issued: February 18, 2014

Case Submitted on the Record

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

JURISDICTION
On July 24, 2013 appellant filed a timely appeal of the May 14, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her claim for an
occupational disease. The Board also has jurisdiction over a June 11, 2013 decision of OWCP
which denied her request for reconsideration. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an occupational disease in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 25, 2013 appellant then a 62-year-old rural carrier, filed a Form CA-2, notice
of occupational disease, alleging that she developed a back sprain when delivering mail. She
became aware of her condition and realized that it was causally related to her employment on
February 14, 2013. Appellant stopped work on February 14, 2013.
In a statement dated March 1, 2013, appellant advised that she was delivering a package
on February 13, 2013. While walking up an uneven driveway, her right side gave out but she did
not fall. Appellant delivered the package and continued her route. She noted that the next day
she experienced back pain and sought medical attention.
In a March 5, 2013 Florida Workers’ Compensation status report, Dr. Stanley Haimes,
Board-certified in occupational medicine, noted that appellant sustained an injury on
February 13, 2013. He noted findings of slowed dysfunctional range of motion of the lumbar
spine and diagnosed a lumbar sprain and strain. Dr. Haimes noted with a checkmark that
appellant’s injury was work related. He stated that appellant did not have a preexisting condition
and recommended physical therapy. In work status reports dated March 14 and 21, 2013,
Dr. Haimes diagnosed lumbar sprain/strain and noted that she could return to work full time at
modified duty. In a report dated March 21, 2013, he noted that appellant presented with
decreased low back pain. He noted a slow gait but upright, intact station, no back spasms and
good range of motion with an intact neurovascular, sensory and motor function in both lower
extremities. A magnetic resonance imaging (MRI) scan of the low back revealed significant
chronic and degenerative changes with no acute herniated disc or nerve impingement.
Dr. Haimes diagnosed lumbar sprain/strain. He stated that the objective findings were consistent
with mechanical low back pain and with spasm; there were no objective findings of a herniated
disc or nerve impingement. Dr. Haimes opined that the MRI scan revealed chronic degenerative
changes that were not attributable to the injury but might be affecting the resolution. On April 2,
2013 he noted that appellant presented with continued low back pain. Dr. Haimes noted positive
findings upon examination and diagnosed sprain/strain of the lumbar spine and referred appellant
for physical therapy.
Appellant was also treated by Dr. Miguel Burgos, a Board-certified family practitioner.
On February 15, 2013 he noted severe right-sided pain in the lumbar and sacral region, from her
neck to the right leg, with right leg weakness, saddle numbness and constant gait disturbance for
three weeks. Dr. Burgos noted appellant’s history was significant for type II diabetes mellitus,
hypertension, osteoarthritis, depression (resolved), carpal tunnel decompression and a prior knee
arthroscopy. Lumbar spine examination revealed moderate tenderness, crepitus, pain at L4-5
with diminished range of motion, and normal sensory and motor function and deep tendon
reflexes. Dr. Burgos diagnosed low back pain, lumbar herniated disc with myelopathy, type II
diabetes mellitus, hypertension, obesity, osteoarthritis and polyneuropathy in diabetes. In
February 15 and 25, 2013 prescription notes, he noted that appellant was under his care from
February 14 to March 18, 2013 and could return to work on March 19, 2013.
On April 11, 2013 OWCP advised appellant of the evidence needed to establish her
claim. It requested that she submit a physician’s reasoned opinion addressing the causal
relationship of her claimed back condition to her specific work factors.

2

The employing establishment submitted an April 8, 2013 statement from appellant’s
supervisor, Denise Lee, who noted that appellant spoke to Beverly Reveron and requested a
workers’ compensation claim form for an injury which occurred 10 years prior. Appellant also
informed Ms. Reveron that she could have injured herself on February 13, 2013. Ms. Lee stated
that this was about two weeks after the alleged injury. She realized that appellant was getting
ready to retire and was out of paid leave until her retirement was granted.
Appellant submitted a February 20, 2013 lumbar spine MRI scan which revealed severe
central canal stenosis at L4-5 secondary to grade 1 anterolisthesis of L4-5 on a degenerative
basis with additional multilevel degenerative changes. In a March 4, 2013 form report,
Dr. Burgos noted that appellant’s disability began on February 13, 2013 and it was unknown
when she would be able to return to work. In work status reports dated March 5 and 7, 2013, he
diagnosed sprain/strain of the lumbar spine and noted that appellant could work modified duty
from March 5 to 14, 2013. An April 24, 2013 report from Dr. Burgos noted first treating
appellant for a low back injury on February 15, 2013 and noted that she remained symptomatic.
Appellant reported almost falling at work on February 13, 2013 and felt a sharp, shooting pain in
her back. He noted that an MRI scan revealed lumbar sacral sprain and lumbar sacral issues.
In a March 5, 2013 attending physician’s report, Dr. Haimes noted that appellant was
injured on February 13, 2013. He listed findings of chronic degenerative changes based on MRI
scan and diagnosed lumbosacral sprain. Dr. Haimes checked a box “yes” that appellant’s
condition was caused or aggravated by an employment activity noting that she was status post
fall. In reports dated April 9 to 23, 2013, he noted treating appellant for continued low back pain
and diagnosed lumbar sprain and strain. He noted that appellant was slowly progressing and
would benefit from physical therapy and an orthopedic evaluation. Dr. Haimes returned
appellant to work full-time modified duty. On April 16, 2013 he noted that on February 13, 2013
appellant sustained an injury and diagnosed sprain and strain of the lumbar spine.
In an April 29, 2013 statement, appellant described her job duties. She indicated that the
day after her injury she could not stand up on her right side and had unbearable pain. Appellant
sought medical attention the next day. She noted returning to work with restrictions.
In a May 14, 2013 decision, OWCP denied appellant’s claim on the grounds that the
medical evidence was insufficient to establish that her back condition was causally related to
work activities.
In an appeal request form dated June 3, 2013, appellant requested reconsideration.
In a June 11, 2013 decision, OWCP denied appellant’s request for reconsideration on the
grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the

3

manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.2
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) factual
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 claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. 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 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.3
ANALYSIS -- ISSUE 1
It is not disputed that appellant’s duties as rural carrier included walking, standing,
lifting, pushing, pulling, driving and carrying packages while delivering mail. She was
diagnosed with lumbar sprain/strain and central canal stenosis at L4-5 secondary to grade 1
anterolisthesis of L4-5. The Board finds that appellant has not submitted sufficient medical
evidence to establish that her back condition is causally related to her employment activities.
Dr. Haimes noted on February 13, 2013 that appellant sustained an injury. He diagnosed
a lumbar sprain and strain and checked a box to indicate that the injury was work related. On
March 5, 2013 Dr. Haimes listed that appellant was injured on February 13, 2013. He diagnosed
lumbosacral sprain and checked a box “yes” that appellant’s condition was caused or aggravated
by an employment activity noting that she was status post fall. The Board has held that an
opinion on causal relationship which consists only of a physician checking “yes” to a form
medical report question on whether the claimant’s condition was related to the history given is of
diminished probative value. Without any explanation or rationale for the conclusion reached,
these reports are insufficient to establish causal relationship.4 In March 21 and April 2, 2013
reports, Dr. Haimes diagnosed lumbar sprain/strain and noted that an MRI scan revealed chronic
degenerative changes that were not attributable to the injury but may be affecting the resolution.
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

Solomon Polen, 51 ECAB 341 (2000).

4

D.D., 57 ECAB 734 (2006); Sedi L. Graham, 57 ECAB 494 (2006); Lucrecia M. Nielson, 41 ECAB 583,
594 (1991).

4

He failed to provide a history of injury5 or offer a rationalized opinion addressing how specific
work activities caused or contributed to the diagnosed back condition.6 Consequently, the
opinion of Dr. Haimes is insufficient to establish appellant’s occupational illness claim.
In an April 24, 2013 report, Dr. Burgos treated appellant for a low back injury on
February 15, 2013 and noted that she remained symptomatic. Appellant reported almost falling
at work on February 13, 2013 and felt a sharp, shooting pain in her back. Dr. Burgos repeated
the history of injury as reported by appellant without providing his own opinion regarding
whether appellant’s condition was work related. He did not provide a rationalized opinion
addressing the causal relationship between appellant’s lumbar condition and the factors of
employment believed to have caused or contributed to her condition.7 Therefore, Dr. Burgos’
report is insufficient to meet appellant’s burden of proof. The other reports of record from him
are similarly insufficient as they do not specifically address whether work factors caused or
contributed to appellant’s low back condition.8
On appeal, appellant contends that she submitted sufficient medical evidence to establish
her claim. The Board finds that the medical evidence of record does not adequately address the
issue of causal relationship.
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
Under section 8128(a) of FECA,9 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [OWCP] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [OWCP];
or
5

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
6

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
7

See supra note 6.

8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
9

5 U.S.C. § 8128(a).

5

“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [OWCP].”10
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.11
ANALYSIS -- ISSUE 2
OWCP’s most recent merit decision dated May 14, 2013 denied appellant’s claim for
compensation on the grounds that she failed to provide sufficient medical evidence to establish
that the diagnosed condition was causally related to established work duties. It denied her
reconsideration request, without a merit review.
In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument.
The Board notes that the underlying issue in this case is whether appellant’s diagnosed
condition is causally related to her work duties. That is a medical issue which must be addressed
by relevant medical evidence.12 A claimant may also be entitled to a merit review by submitting
new and relevant evidence, but appellant did not submit any new and relevant medical evidence
in support of her claim.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.13 The Board further finds that
OWCP properly denied her request for reconsideration dated June 3, 2013.

10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.608(b).

12

See Bobbie F. Cowart, 55 ECAB 746 (2004).

13

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the June 11 and May 14, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 18, 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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 11-879
Issued: October 14, 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 February 22, 2011 appellant filed a timely appeal from the December 28, 2010
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
request for a hearing. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a hearing.
FACTUAL HISTORY
On April 24, 2003 appellant, a 67-year-old letter carrier, sustained an injury in the
performance of duty when he was involved in an automobile accident. OWCP accepted his
claim for cervical and left shoulder strains. It also accepted appellant’s claim for lumbar sprain,
degeneration of lumbar or lumbosacral intervertebral disc and lumbar spinal stenosis.
1

5 U.S.C. § 8101 et seq.

In a decision dated November 6, 2008, OWCP denied appellant’s claim that he sustained
a recurrence of disability beginning August 27, 2008.
On July 29, 2010 appellant requested an oral hearing before an OWCP hearing
representative. He submitted two medical reports to show that he was taken off work in
August 2008. On September 23, 2010 appellant again requested an oral hearing.
In a decision dated December 28, 2010, OWCP denied appellant’s request for a hearing.
After noting that FECA was unequivocal in setting a 30-day time limitation on requesting a
hearing, OWCP denied his request as follows:
“The record shows that the decision of the district office was rendered on
November 6, 2008 and your request for an oral hearing to the Branch of Hearings
and Review was postmarked July 29, 2010. Since your request for an oral hearing
was not made within 30 days, you are not, as a matter of right, entitled to an oral
hearing or a review of the written record on your case. Preliminary review of
your case record establishes that [OWCP] advised you by letter dated
November 19, 2008 of the need to follow your appeal rights if you disagreed with
the denial of your compensation. They also advised of such by multiple telephone
calls, including those dated November 20 and 25, 2008, January 29 and
February 20, 2009. However, although you advised [OWCP] that you would
appeal, no timely request for a hearing or reconsideration was received by
[OWCP]. Unfortunately, as you did not request a hearing within 30 days of the
decision, there is no basis upon which to grant you an oral hearing at this time.”
On appeal, appellant submits copies of his two requests for an oral hearing. He states that
he also submitted claims for compensation on account of disability for the period August 27 to
November 20, 2008, which forms were timely and stamped as received by the employing
establishment and OWCP.
LEGAL PRECEDENT
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.”2
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.3 OWCP has

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.616(a).

2

discretion, however, to grant or deny a request that is made after this 30-day period.4 In such a
case it will determine whether a discretionary hearing should be granted or, if not, will so advise
the claimant with reasons.5
ANALYSIS
On November 6, 2008 OWCP denied appellant’s claim that he sustained a recurrence of
disability beginning August 27, 2008. Appellant had 30 days from the date of that decision or
until December 8, 2008,6 to make a timely request for a hearing. Because his July 29 and
September 23, 2010 requests were untimely, the Board finds that OWCP properly found that he
was not entitled to a hearing as a matter of statutory right.
OWCP had discretion, nonetheless, to grant appellant’s request. But it does not appear
from the December 28, 2010 decision that OWCP exercised that discretion or if it did, it did not
advise him with reasons. Rather, it denied appellant’s request solely on the grounds that it was
untimely: “Unfortunately, as you did not request a hearing within 30 days of the decision, there is
no basis upon which to grant you an oral hearing at this time.” The Board has carefully reviewed
the December 28, 2010 decision and finds no indication that OWCP considered whether to grant a
discretionary hearing.
The Board will therefore set aside the December 28, 2010 decision and remand the case for
a proper exercise of OWCP’s discretion and an appropriate final decision on appellant’s untimely
request. Should OWCP decide to deny a discretionary hearing, it must so advise appellant with
reasons.
CONCLUSION
The Board finds that OWCP failed to exercise its discretion when it denied appellant’s
untimely request for a hearing.

4

Herbert C. Holley, 33 ECAB 140 (1981).

5

Rudolph Bermann, 26 ECAB 354 (1975).

6

December 6, 2008 was a Saturday.

3

ORDER
IT IS HEREBY ORDERED THAT the December 28, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: October 14, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Coventry, RI, Employer
)
___________________________________________ )
S.M., Appellant

Appearance
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-1300
Issued: October 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 16, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated February 7, 2007, which denied appellant’s claim
for an occupational disease. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed a bilateral hand condition while in the performance of duty.
FACTUAL HISTORY
On October 27, 2006 appellant, then a 57-year-old rural route carrier, filed an
occupational disease claim alleging that she developed a bilateral hand condition while in the
performance of duty. She became aware of her condition on September 18, 2006. Appellant did
not stop work.

In a September 18, 2006 report, Dr. Julia A. Katarincic, a Board-certified orthopedic
surgeon, treated appellant for bilateral hand pain and numbness which she experienced
intermittently for many years. She indicated that appellant drove a mail truck and experienced
discomfort when lifting heavy mail with the left hand. Dr. Katarincic noted findings upon
physical examination of a positive Tinel’s sign bilaterally, severe bilateral pain at the joints, full
range of motion of the shoulder and elbow bilaterally and full range of motion of the fingers.
She diagnosed bilateral thumb pain and history of joint pain. A nerve conduction study and
electromyogram (EMG) dated September 22, 2006, revealed bilateral distal median neuropathies
consistent with bilateral carpal tunnel syndrome. Appellant submitted an undated statement and
noted that she experienced bilateral hand pain for a few years which recently became worse. She
indicated that her job required her to pitch mail which caused severe numbness to both hands and
thumbs.
The employing establishment submitted a statement from Richard E. Carlson, appellant’s
supervisor, dated November 15, 2006. He described appellant’s work duties which included
casing mail, grasping approximately 472 pieces of mail a day, pushing a mail hamper and
delivering mail. He advised that appellant did not engage in unsafe practices at work and he did
not doubt her claim of bilateral hand discomfort.
By letter dated December 13, 2006, the Office advised appellant of the factual and
medical evidence needed to establish her claim. It requested that she submit a physician’s
reasoned opinion addressing the relationship of her claimed condition and specific employment
factors.
Appellant submitted a report from Dr. Robert C. Marchand, Board-certified in physical
medicine and rehabilitation, dated October 26, 2006. Dr. Marchand noted that appellant
presented with bilateral thumb, wrist and finger pain. He advised that appellant was treated
conservatively with splints and nonsteroids without success. Dr. Marchand noted findings upon
physical examination of limited range of motion for dorsiflexion and palmar flexion, full
supination and pronation and positive Phalen’s sign. He advised that x-rays of the bilateral
thumbs revealed basilar joint arthritis with subluxation. Dr. Marchand diagnosed right carpal
tunnel syndrome which was symptomatic and left thumb basilar joint arthritis.
In a decision dated February 7, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was not sufficient to establish that her condition was caused or
contributed to by her employment duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation 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 timely filed within the applicable time limitation period of the Act, that the injury was
sustained 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. These are the

2

essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.1
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) factual
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 claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. 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 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.2
ANALYSIS
It is not disputed that appellant’s duties as a rural carrier included performing repetitive
lifting, grasping and pushing activities using both hands and fingers. However, she has not
submitted sufficient medical evidence to support that her bilateral upper extremity conditions,
diagnosed as right carpal tunnel syndrome and left thumb basilar joint arthritis, were causally
related or aggravated by her employment duties. On December 13, 2006 the Office advised
appellant of the medical evidence needed to establish her claim.
Dr. Katarincic treated her for bilateral hand pain and numbness. She noted that appellant
drove a mail truck and experienced discomfort when lifting heavy mail with the left hand.
Dr. Katarincic diagnosed bilateral thumb pain and history of pain. However, she did not provide
a medical opinion explaining the causal relationship between specific employment duties
appellant performed to the development of the diagnosed condition.3 Therefore, this report is
insufficient to meet appellant’s burden of proof.
Dr. Marchand noted that she presented with bilateral thumb, wrist and finger pain. He
indicated that appellant was treated conservatively with splints and nonsteroids without success.
Dr. Marchand advised that x-rays of the bilateral thumbs revealed basilar joint arthritis with
subluxation and diagnosed right carpal tunnel syndrome which was symptomatic and left thumb
1

Gary J. Watling, 52 ECAB 357 (2001).

2

Solomon Polen, 51 ECAB 341 (2000).

3

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

3

basilar joint arthritis. However, he failed to provide any history of appellant’s work activities
and did not provide a specific opinion addressing the causal relationship between appellant’s
diagnosed right carpal tunnel syndrome or left thumb basilar joint arthritis to the factors of
employment believed to have caused or contributed to such condition.4 Therefore, this report is
insufficient to meet appellant’s burden of proof.
The remainder of the medical evidence submitted by appellant, including an EMG report,
is insufficient to establish her claim because it does not provide any opinion on the causal
relationship between her job duties and her diagnosed conditions. For this reason, this evidence
is not sufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.5 Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed carpal tunnel syndrome and left thumb basilar joint arthritis in the performance of
duty.6

4

Id.

5

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

6

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5