United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-96
Issued: March 22, 2013

Case Submitted on the Record

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

JURISDICTION
On October 18, 2012 appellant, through his attorney, filed a timely appeal from the
August 20, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective March 11, 2012 on the grounds that he had no
residuals of his September 27, 2000 work injury after that date.
FACTUAL HISTORY
OWCP accepted that on September 27, 2000 appellant, then a 36-year-old food service
supervisor, sustained a medial meniscus injury of his right knee when a full food cart hit his right
1

5 U.S.C. §§ 8101-8193.

knee, causing it to pop. Appellant stopped work on September 27, 2000 and did not return. He
received compensation on the periodic rolls for total disability since that time.
On October 6, 2000 appellant began treatment with Dr. Carl Barbera, a Board-certified
orthopedic surgeon, who noted that a November 27, 2000 magnetic resonance imaging (MRI)
scan testing of appellant’s right knee showed a bucket handle tear of the posterior horn of the
medial meniscus with no cruciate or collateral ligament tear seen. The testing also showed small
joint effusion. On February 22, 2001 Dr. Barbera performed right knee arthroscopy with partial
medial meniscectomy and chondroplasty. The surgery was authorized by OWCP.
On July 30, 2001 appellant began to be treated by Dr. Joel R. Bonamo, a Board-certified
orthopedic surgeon. During his initial examination of appellant’s right knee on July 30, 2001,
Dr. Bonamo did not find evidence of effusion, loss of motion or joint line tenderness and the
knee was determined to be stable. He found an equivocal McMurray sign and indicated that the
possibility existed that appellant might still have a meniscal pathology.
On May 8, 2002 Dr. Howard I. Baum, an attending Board-certified orthopedic surgeon,
reviewed the report of appellant’s February 22, 2001 surgery and noted that he had significant
degenerative changes at the time of his surgery. He examined appellant and diagnosed right
knee chondromalacia. Dr. Baum determined that appellant remained disabled.
On April 9, 2004 Dr. Bartholomew F. Savino, an attending Board-certified internist,
stated that appellant had been complaining of stress-related anxiety and depression as a result of
his condition and injury-related outcome.
On April 19, 2004 Dr. Baum performed a right knee arthroscopy with partial
synovectomy, extensive removal of scar tissue and partial synovectomy. The surgery was
authorized by OWCP. On April 28, 2004 Dr. Baum removed appellant’s sutures and referred
him for physical therapy. In an August 20, 2004 report, he stated that appellant’s right knee
condition was improving. On December 13, 2005 Dr. Baum indicated that appellant’s
complaints concerned his left shoulder and left knee, conditions which were not claimed as work
related. He did not note any complaints or treatment regarding the right knee. Dr. Baum
continued to provide an opinion that appellant was totally disabled.
In a September 19, 2007 note, Dr. Baum diagnosed right knee derangement noting that
physical examination of the right knee showed evidence of both medial and lateral femoral
condyle and joint line tenderness. He continued to provide additional notes which made brief
references to examination of appellant’s right knee. Dr. Baum also completed numerous form
reports in which he indicated that appellant was totally disabled since September 27, 2000.2
In order to determine whether appellant still had residuals and disability due to his
September 27, 2000 work injury, OWCP referred appellant to Dr. Jerome D. Rosman, a Boardcertified orthopedic surgeon, for examination and an opinion on this matter. Dr. Rosman was
provided with the records in appellant’s file and a statement of accepted facts.
2

Dr. Baum made note of appellant’s right knee chondromalacia, a condition which is not accepted as work
related.

2

In a November 17, 2011 report, Dr. Rosman detailed appellant’s factual and medical
history and reported the findings of his November 17, 2011 examination. He concluded that
appellant no longer had a medical condition or disability as a result of his September 27, 2000
work injury. Dr. Rosman noted that appellant was able to walk on his heels and toes without
difficulty and was able to get on and off the examining table unassisted. He also noted a limp to
the left, but indicated that the examination revealed that the range of motion of appellant’s hips
was normal. Examination of the right knee revealed range of motion to 130 degrees and no
effusion, instability or ligamentous laxity was observed. Dr. Rosman stated that the Lachman
sign, McMurray test, drawer sign, and abductor and adductor stress tests were normal. He noted
that there was mild retropatellar crepitus, but no pain with right patellar compression. There was
no loss of strength or loss of sensation in the legs bilaterally. Dr. Rosman stated:
“The claimant has fully recovered from the effects of the accepted injury based on
the objective findings of examination. The claimant does demonstrate mild
residual atrophy of the right thigh and right calf. His subjective complaints and
his inability to return to work after the second surgery are not supported by
objective findings on examination…. Based on the history of injury and the
objective findings of examination, the claimant can perform his date[-]of[-]injury
job as a food service supervisor. Based on the objective findings of examination,
the claimant does not demonstrate work-related restrictions. The prognosis is
good. No further care is indicated based on the objective findings. [Appellant]
has reached maximum medical improvement. Maximum medical improvement
was attained in June 2004, approximately eight weeks after the second surgery.”3
In a January 25, 2012 letter, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits because the opinion of Dr. Rosman showed that
appellant ceased to have residuals of his September 27, 2000 work injury. It indicated that the
referral to Dr. Rosman was necessary because the reports of Dr. Baum, finding work-related
residuals and disability, were not rationalized. OWCP advised appellant that he had 30 days
from the date of the letter to provide evidence and argument challenging the proposed
termination. Appellant did not submit any evidence or argument within the allotted time.
In a March 6, 2012 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective March 11, 2012 based on Dr. Rosman’s opinion that he ceased to have
residuals of his September 27, 2000 work injury.
Appellant submitted an April 11, 2012 report in which Dr. Baum provided a history of
the medical treatment for his right knee, including physical examinations, diagnostic testing and
surgeries.4 He stated that appellant suffered from anxiety in 2004 and was treated by Dr. Savino
for this condition. Dr. Baum indicated that appellant had difficulty standing for long periods of
time and was taking medication due to the pain in his right knee and the anxiety he suffered. He
indicated that appellant’s right knee condition ultimately caused him to develop pain in his
3

In a November 18, 2011 work restrictions form, Dr. Rosman indicated that appellant did not any work
limitations.
4

The report does not appear to contain any findings of a recent physical examination of appellant by Dr. Baum.

3

shoulder and left knee. Dr. Baum opined that due to the fact that appellant had quadriceps
atrophy for more than one year after his operation indicated that his failure to improve was
permanent and that he was at marked disability. He disagreed with Dr. Rosman’s evaluation of
appellant’s condition and stated that the examination by Dr. Rosman showed that appellant had
continued mild atrophy to the right calf and thigh. Dr. Baum posited that the right calf
symptoms evolved from appellant’s work-related right leg injury. The fact that appellant still
had calf atrophy indicated that he still had residual neurological issues which had worsened.
Dr. Baum asserted that the gait abnormality could affect the contralateral extremity and lower
back and felt that Dr. Rosman did not adequately address appellant’s right calf atrophy, a
condition which developed from the right knee condition over time. Dr. Baum also posited that a
physician who is not a psychiatrist could treat anxiety and indicated that appellant still had an
“anxiety-related disorder related to the traumatic events that happened in 2000.” He diagnosed
status post right knee arthroscopy with quadriceps atrophy and lumbar spine derangement.
Dr. Baum indicated that appellant was too young to have a right knee replacement and stated that
he remained totally disabled.
In brief notes dated February 8, 29 and July 11, 2012, Dr. Baum indicated that appellant
continued to report aches and pain in his right knee.5 He noted that appellant continued to have
quadriceps atrophy, chronic patella-femoral plain synovitis and chondromalcia in the right knee.
Appellant also had difficulty with activities of daily living and an antalgic gait pattern.
Dr. Baum noted that appellant used medications for pain and a Palumbo knee support and stated
that he would follow up on an as needed basis. He posited that appellant was not a candidate for
any physical activity.
In an August 20, 2012 decision, OWCP affirmed its March 6, 2012 termination decision.
It considered the new medical evidence of Dr. Baum but found that it did not show that appellant
had residuals of his September 27, 2000 work injury after March 11, 2012.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.6 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.8
ANALYSIS
OWCP accepted that on September 27, 2000 appellant sustained a medial meniscus
injury of his right knee when a full food cart hit his right knee. Appellant stopped work on
5

It is unclear whether Dr. Baum actually examined appellant around the times these notes were produced.

6

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

7

Id.

8

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

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September 27, 2000 and did not return. He received compensation on the periodic rolls for total
disability since that time. On February 22, 2001 Dr. Barbera, an attending Board-certified
orthopedic surgeon, performed right knee arthroscopy with partial medial meniscectomy and
chondroplasty. On April 19, 2004 Dr. Baum, an attending Board-certified orthopedic surgeon,
performed a right knee arthroscopy with partial synovectomy, extensive removal of scar tissue
and partial synovectomy. The surgeries were authorized by OWCP.
In a March 6, 2012 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective March 11, 2012 based on the fact that the November 2011 opinion of
Dr. Rosman, a Board-certified orthopedic surgeon serving as an OWCP referral physician,
showed that he ceased to have residuals of his September 27, 2000 work injury.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Rosman, the second opinion physician. The November 17, 2011
report of Dr. Rosman establishes that appellant had no disability due to his September 27, 2000
employment injury after March 11, 2012.9
In his November 17, 2011 report, Dr. Rosman detailed appellant’s factual and medical
history and reported the findings of his November 17, 2011 examination. He noted that
appellant was able to walk on his heels and toes without difficulty and was able to get on and off
the examining table unassisted. Dr. Rosman also noted a limp to the left, but indicated that the
examination revealed that the range of motion of appellant’s hips was normal. Examination of
the right knee revealed no effusion, instability or ligamentous laxity. Dr. Rosman stated that the
Lachman sign, McMurray test, drawer sign and abductor and adductor stress tests were normal.
He noted that there was mild retropatellar crepitus, but no pain with right patellar compression.
There was no loss of strength or loss of sensation in the legs bilaterally. Dr. Rosman stated that
appellant had fully recovered from the effects of the accepted injury based on the objective
findings of examination. He noted that appellant did demonstrate mild residual atrophy of the
right thigh and right calf, but did not provide any indication that this condition was related to his
September 27, 2000 medial meniscus injury or his two surgeries. Dr. Rosman noted that
appellant’s subjective complaints and his inability to return to work after the second surgery
were not supported by objective findings on examination. He posited that appellant could work
as a food service supervisor without restrictions and that no further care was indicated based on
the objective findings. Appellant reached maximum medical improvement in June 2004,
approximately eight weeks after his second right knee surgery.
The Board has carefully reviewed the opinion of Dr. Rosman and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Rosman provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.10 He provided medical rationale for
his opinion by explaining that appellant had limited objective findings of his right knee and that
9

On appeal, counsel suggested that it was improper to refer appellant to Dr. Rosman. The Board notes that the
referral was proper because the reports of Dr. Baum finding work-related residuals and disability were not
rationalized.
10

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

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none of the observed findings were related to the September 27, 2000 work injury, a medial
meniscus tear which was repaired through surgery.11
After OWCP’s March 6, 2012 decision terminating appellant’s compensation effective
March 11, 2012, appellant submitted additional medical evidence which he felt showed that he
was entitled to compensation after March 11, 2012 due to residuals of his September 27, 2000
employment injury. Given that the Board has found that OWCP properly relied on the opinion
of Dr. Rosman in terminating appellant’s compensation, effective March 11, 2012, the burden
shifts to appellant to establish that he is entitled to compensation after that date.12 The Board has
reviewed the additional evidence submitted by appellant and notes that it is not of sufficient
probative value to establish that he had residuals of his September 27, 2000 employment injury
after March 11, 2012.
In an April 11, 2012 report, Dr. Baum stated that appellant had continued mild atrophy to
his right calf and thigh and posited that the right calf symptoms evolved from his work-related
right leg injury. He noted that the fact that appellant still had calf atrophy indicated that he still
had residual neurological issues which had worsened and asserted that appellant’s gait
abnormality could affect his left leg and lower back. The Board finds that this report does not
meet appellant’s burden of proof to show that he had residuals of his September 27, 2000
employment injury after March 11, 2012. Dr. Baum did not provide a rationalized opinion
explaining how appellant’s mild right calf and thigh atrophy was related to his September 27,
2000 employment injury. He suggested that appellant had left leg and back injuries as a
consequence of his September 27, 2000 employment injury but he did not adequately explain the
medical process through which such a consequential injury could have occurred. The Board
notes that it remains unclear whether Dr. Baum conducted a physical examination of appellant
around the time he produced his April 11, 2012 report and Dr. Baum did not cite specific
examination findings to support his conclusions.13
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.

11

As noted above, the brief reports of Dr. Baum from the period prior to the referral to Dr. Rosman are of limited
probative value on the main issue of this case due to their vague nature and lack of a rationalized medical opinion
showing that appellant had residuals of his September 27, 2000 work injury. Some medical reports of record
suggest that appellant had an emotional condition related to his September 27, 2000 work injury, but OWCP has not
accepted such a condition and the record does not contain a rationalized medical opinion regarding appellant’s
emotional condition.
12

See I.J., 59 ECAB 408 (2008).

13

Dr. Baum’s February 8, 29 and July 11, 2012 notes mention appellant’s mild right-sided atrophy, but they do
not contain any medical rationale on the matter of causal relationship. He indicated that appellant continued to have
chronic patella-femoral plain synovitis and chondromalcia in the right knee, but these conditions are not accepted as
work related.

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CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective March 11, 2012 on the grounds that he had no
residuals of his September 27, 2000 work injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 17-0614
Issued: June 13, 2017

Case Submitted on the Record

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

JURISDICTION
On January 25, 2017 appellant filed a timely appeal from a January 10, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated July 20, 2016, 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 the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 22, 2010 appellant, then a 43-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she sustained right foot, calf, knee, and hip pain as well as
1

5 U.S.C. § 8101 et seq.

elbow, shoulder, and neck pain on the right when she struck a rail while driving a forklift. The
employing establishment had no work available for appellant beginning October 17, 2010. On
November 29, 2010 OWCP accepted her claim for right muscle spasm. It authorized
compensation benefits from October 17 through November 25, 2010 and December 25, 2010
through February 16, 2011. Appellant returned to work on February 17, 2011. She last received
medical treatment for her accepted employment injuries on June 13, 2011.
The claim was essentially dormant until 2014. On November 21, 2014 appellant filed a
recurrence claim (Form CA-2a) alleging that on October 3, 2014 she sustained chronic flare-ups
of muscle and joint pain during bad weather. She attributed her condition to driving a tow motor
on a continuous daily basis on concrete floors with cracks and dips. Appellant listed her
conditions after returning to work as tenderness on the right side of her neck, pain and tenderness
in the right shoulder, knee, ankle, thigh, calf, lower back, and groin.
With her claim, appellant submitted a report from Dr. Uche G. Iheme, a Board-certified
internist, who examined her on October 6, 2014 due to right-sided pain. He diagnosed right hip
pain and multiple joint complaints.
In a letter dated February 24, 2015, OWCP requested that appellant provide additional
factual and medical evidence in support of her recurrence claim. It afforded her 30 days to
respond. No additional evidence was received.
By decision dated March 31, 2015, OWCP denied appellant’s recurrence claim. It found
that she had described a set of occupational factors, including driving a tow motor, as causing a
renewed need for medical treatment. OWCP informed appellant that this claim was indicative of
a new occupational disease and not a recurrence. It created a new occupational disease claim
and denied her claim for recurrence as she had not established that she required additional
medical treatment due to a worsening of her accepted work-related conditions without an
intervening cause.
Appellant submitted a July 28, 2015 duty status report from Dr. Iheme diagnosing
tenderness of the right side of the body and indicating that her diagnosis was nonspecific.
Dr. Iheme found that she was capable of full-duty work.
On January 22, 2016 appellant requested a change of physicians from Dr. Iheme to
Dr. Audley Mackel, a Board-certified orthopedic surgeon.
Appellant requested reconsideration of OWCP’s March 31, 2015 decision on
February 17, 2016. She noted that her husband was a physical therapist and he had treated her.
Appellant described her work duties of driving across potholes and cracks in the workplace floor
which aggravated the pain of her prior injuries. She asserted that the majority of the cracks in
the floor were near her work station. Appellant requested that the employing establishment
repair the floor. She asserted that her pain had been consistent since she returned to work on
February 16, 2011. Appellant listed additional injuries, including trigger thumb and left wrist
injuries from a June 12, 2012 motor vehicle accident, and pallets falling on her right calf and
ankle on December 4, 2015.

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Appellant provided additional medical evidence. Dr. Iheme completed a form report on
January 24, 2011. He found tenderness on palpation in the right shoulder, right hip, and right
ankle. Dr. Iheme diagnosed generalized body pains and fibromyalgia. He indicated by checking
a box marked “yes” on a form report that appellant’s condition was caused or aggravated by her
employment activities.
On March 2, 2011 appellant visited Dr. Soumya Chatterjee, a Board-certified
rheumatologist, who diagnosed myalgia and myositis, disorders of the sacrum, disorders of the
bursae and tendons in the shoulder, and cervicalgia.
In a note dated September 28, 2011, Dr. Michael Walker, a Board-certified orthopedic
surgeon, reported examining appellant due to pain in her right hand and triggering of the right
thumb. He noted that she operated a forklift and could not relate the onset of her hand problems
to any particular injury. Dr. Walker diagnosed right trigger thumb and mild carpal tunnel
syndrome. He also diagnosed cervicalgia, disorders of the bursae and tendons in the shoulder
region, lateral epicondylitis, generalized osteoarthrosis, myofascial pain syndrome, generalized
muscle weakness, and chest pain. On October 7, 2011 Dr. Walker found that appellant’s right
thumb pain had improved, but recommended surgery.
Dr. John M. Hickner, a Board-certified family practitioner, examined appellant on July 2,
2012 due to her wrist condition. He noted that appellant had a history of left radial styloid
tenosynovitis, but her x-rays demonstrated mild soft tissue swelling.
On April 2, 2013 Dr. Iheme examined appellant due to pain in the right big toe nail bed.
In a letter dated February 22, 2016, OWCP authorized appellant’s change of physicians.
It requested a detailed medical report from Dr. Mackel.
By decision dated July 20, 2016, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decision. It again noted that she had identified new work factors,
an intervening injury, and had not established a recurrence of disability.
Appellant again requested reconsideration of OWCP’s July 20, 2016 decision on
October 17, 2016. She asserted that she was submitting additional medical evidence. Appellant
resubmitted Dr. Iheme’s July 28, 2015 duty status report. She also submitted a note dated
September 29, 2016 from Dr. Iheme listing her treatments from March 2014 through
September 2016. Dr. Iheme indicated that on June 9, 2014 he evaluated and treated right wrist
tendinitis, on November 18, 2014 he had evaluated and treated chronic myofascial pain, on
June 29, 2015 he had evaluated and treated right hip pain, on September 29, 2015 he had
evaluated and treated right shoulder pain, on November 2, 2015 he evaluated and treated pain on
the right side of the body, and on March 29, 2916 he evaluated and treated myofascial pain
syndrome. On October 13, 2016 he completed a duty status report and diagnosed tenderness on
the right side of the body. Dr. Iheme indicated that appellant could perform regular-duty work.
By decision dated January 10, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).

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LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.3
Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is
timely, but does meet at least one of these three requirements, OWCP will deny the application
for review without reopening the case for a review on the merits.4 Section 10.607(a) of OWCP’s
regulations provides that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.5
The Board has held that the submission of evidence which does not address the particular
issue involved does not constitute a basis for reopening a case.6 The Board has held that the
submission of evidence or argument which repeats or duplicates evidence or argument already in
the case record does not constitute a basis for reopening a case under 5 U.S.C. 8128(a).7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On November 29, 2010 OWCP accepted appellant’s claim for right muscle spasm. On
November 21, 2014 appellant filed a claim for a recurrence of disability and attributed her
current conditions to driving a tow motor over potholes and cracks in the employing
establishment floor. OWCP found that she had implicated additional employment duties and

2

Id. at § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608.

5

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(February 2016).
6

B.T., Docket No. 16-0785 (issued September 21, 2016); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G.
Williams, 52 ECAB 180 (2000).
7

See M.H., Docket No. 16-1382 (issued December 5, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984).

4

denied her recurrence claim, finding that her claim should be developed as a new occupational
disease claim.8
The Board does not have jurisdiction over the July 20, 2016 merit decision and can
consider only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which
would require OWCP to reopen the case for merit review. The underlying issue on
reconsideration is whether the medical evidence of record establishes causal relationship
between her disability from work and accepted employment injury of right muscle spasm. This
issue is medical in nature.
The Board finds that appellant did not attempt to show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not attempt to advance a relevant
legal argument not previously considered by OWCP. In her October 17, 2016 request for
reconsideration, she merely requested that OWCP review the medical evidence submitted. The
Board therefore finds that appellant is not entitled to a review of the merits of her claim based on
the first and second above-noted requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP. Dr. Iheme’s July 28, 2015 and October 13, 2016 duty
status reports were duplicative and the July 28, 2015 report was already of record. Evidence that
repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case.9 Dr. Iheme’s September 29, 2016 note merely listed the
treated conditions without providing any new observations or opinion on the causal relationship
between these conditions and appellant’s accepted employment injury of right muscle spasm.
The Board has held that the submission of evidence which does not address the particular issue
involved does not constitute a basis for reopening a case.10 As Dr. Iheme’s July 28, 2015 and
October 13, 2016 reports did not address the basis of denial of the underlying claim, it does not
constitute relevant or pertinent new evidence requiring OWCP to reopen appellant’s claim for
consideration of the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

Compare S.S., Docket No. 16-0675 (issued July 15, 2016) (finding that, although appellant had filed a
recurrence claim, the intervening employment injury, established that her claim should be developed as a traumatic
injury). The new occupational disease claim is not before the Board on the present appeal.
9

C.H., Docket No. 17-0074 (issued March 17, 2017).

10

B.T., supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT January 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, VITILAS “VITO”
)
REID POST OFFICE, Normandy, MO, Employer )
__________________________________________ )
D.J., Appellant

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

Docket No. 21-0799
Issued: July 23, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 29, 2021 appellant through counsel, filed a timely appeal from a March 19, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-0799.
In a letter dated June 21, 2021, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0799 is dismissed.
Issued: July 23, 2021
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS CANTEEN SERVICE, Danville, IL, )
Employer
)
___________________________________________ )
R.M., Appellant

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

Docket No. 08-75
Issued: June 6, 2008

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 October 9, 2007 appellant filed a timely appeal of the June 19, 2007 decision of an
Office of Workers’ Compensation Programs’ hearing representative, who affirmed a
December 1, 2006 decision terminating her compensation benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merit decisions in this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation effective December 1, 2006; and (2) whether appellant met her burden of proof to
establish that she was entitled to wage-loss compensation after December 1, 2006 causally
related to the May 21, 2004 employment injury.
FACTUAL HISTORY
On May 21, 2004 appellant, then a 47-year-old part-time head cashier, sustained a
traumatic injury when she fell on a wet floor and landed on her right side and arm. She also

alleged that her neck felt stiff. The employing establishment indicated that appellant declined
medical treatment. She did not stop work. On March 14, 2005 the Office accepted appellant’s
claim for thoracic or lumbosacral neuritis or radiculitis.
In a May 18, 2005 report, Dr. James J. Harms, a Board-certified orthopedic surgeon and
treating physician, noted appellant’s history of injury and treatment. He reviewed a magnetic
resonance imaging (MRI) scan dated February 1, 2005 and noted that it showed a slight
degenerative bulge at L5-S1. Dr. Harms opined that he did not believe that surgery would help
appellant, but advised that she should remain active. He diagnosed degenerative disc disease at
L5-S1 with a superimposed back strain. On September 26, 2005 Dr. Harms noted that appellant
had tailbone pain and tingling into the legs which bothered her at night. He also indicated that
she had neck pain, shoulder pain and aches in lots of places. Dr. Harms diagnosed low back pain
from premature degenerative disc disease at L5-Sl and leg tingling. He recommended that
appellant undergo electromyogram (EMG) and nerve conduction testing.
In an October 6, 2005 report, Dr. Victoria Johnson, a Board-certified physiatrist,
diagnosed myofascial pain syndrome with neuropathic symptoms in the lower extremities and no
evidence of radiculopathy. She recommended that appellant continue her current restrictions
which included a 15-pound lifting and pulling restriction and avoid repetitive bending.
In a November 16, 2005 report, Dr. Harms indicated that appellant’s leg and back were
still bothersome and that she was not responding to conservative treatment. He recommended a
discogram and spinal fusion surgery. On November 29, 2005 Dr. Harms determined that
appellant had degenerative disc disease at L4-5 and L5-S1 with a negative provocative test of
computerized tomography (CT) discogram of L4-5 and L5-S1. He opined that appellant’s upper
back, mid back, arm and leg pain might be due to her degenerative disc disease or from
peripheral neuropathy, arthritis or fibromyalgia. Dr. Harms recommended a second opinion
examination. He completed an undated duty status report advising that appellant was totally
disabled for work beginning January 8, 2006.1 In a March 22, 2006 report, Dr. Harms advised
that appellant continued to have tingling into her feet and hands, as well as back and left knee
pain. He indicated that appellant had not worked for some time. Dr. Harms reiterated that
appellant should be referred to a physician specializing in physical medicine and rehabilitation
for treatment of her symptoms.
In a June 13, 2006 report, Dr. Thomas Sutter, Board-certified in family medicine and an
associate of Dr. Harms, noted appellant’s history of injury and treatment. He conducted a
physical examination and noted that appellant had full range of motion of the cervical, thoracic
and lumbosacral spines with mild tenderness in the lumbosacral area. Dr. Sutter diagnosed
chronic back pain with a history of degenerative disc disease of the lumbosacral spine. He

1

Appellant stopped work on January 10, 2006. In a February 1, 2006 memorandum, the employing
establishment notified her that it proposed to remove her from her position as food service worker for failure to
register proper cash register sales for transactions from December 7 to 20, 2005 and for failure to follow
instructions. On February 27, 2006 the employing establishment issued a final decision and removed appellant from
her position effective March 7, 2006.
Appellant filed CA-7 forms for the period March 8 through
December 1, 2006. The Office paid appellant compensation for total wage loss for that period.

2

recommended restrictions of no lifting over 25 pounds and no twisting of the back. Dr. Sutter
recommended a functional capacity evaluation.
By letter dated August 9, 2006, the Office provided Dr. Sutter with a copy of appellant’s
position description and advised him that the physical requirements included: light lifting under
15 pounds; light carrying under 25 pounds occasionally; pushing occasionally; reaching above
the shoulder; use of fingers; both hands required; walking and standing four hours per day; and
repeated bending. The Office indicated that appellant had worked six hours per day, five days
per week. It requested that Dr. Sutter provide his opinion as to whether appellant could perform
the duties of the date-of-injury position.
In an August 16, 2006 response, Dr. Sutter indicated that he had seen appellant for one
visit and recommended a functional capacity evaluation. He opined that “appropriate restrictions
were no lifting over 25 pounds and avoid twisting her back.” Dr. Sutter also indicated that it
appeared that appellant’s restrictions were consistent with her current job position.
On September 28, 2006 the Office issued a notice of proposed termination of
compensation. It found that the report of Dr. Sutter established that appellant had no continuing
work-related disability as a result of her May 21, 2004 employment injury. Appellant was
allotted 30 days to submit additional evidence or argument.
In a September 28, 2006 report, Dr. Sutter indicated that he was examining appellant for
the purpose of obtaining an impairment rating for a schedule award. He noted that she did not
obtain functional capacity evaluation. Dr. Sutter determined that appellant had mild tenderness
in the lumbosacral area, no paravertebral spasm, normal range of motion, full extension and good
flexion of the lumbosacral spine, negative straight leg raising test, normal deep tendon reflexes,
normal sensory examination of the lower extremities and no muscle atrophy of the lower
extremities. He diagnosed chronic back pain and noted that she did not really have findings on
discogram or lumbar CT scan other than degenerative changes and there was no evidence of
spinal stenosis or foraminal stenosis.
Dr. Sutter determined that appellant’s physical
examination was normal. He indicated that she did not wish for him to complete the impairment
rating as she wished to have another physician do the rating.
On October 13, 2006 appellant underwent a functional capacity evaluation.
By decision dated December 1, 2006, the Office terminated appellant’s compensation
benefits effective that day. It found that she did not submit any medical documentation to negate
the opinion of her attending physician, Dr. Sutter. The Office found that the weight of the
medical evidence supported that appellant had no continuing disability or residuals due to the
injury of May 21, 2004.

3

On December 18, 2006 appellant requested a hearing, which was held by telephone on
April 11, 2007.2
The Office subsequently received an October 3, 2006 report from Dr. Jian Li, a Boardcertified physiatrist, who diagnosed chronic neck and low back pain and cervical and lumbar
spondylosis.
The Office also received a copy of a November 23, 2005 CT scan lumbar spine
discogram read by Dr. Joseph Barkmeier, a Board-certified diagnostic radiologist, who found
that appellant had degenerative disc disease at L4-5 and L5-Sl with a negative provocative test at
L4-5 and L5-S1.
In a report dated March 22, 2007, Dr. Srinivas Sunkavally, a Board-certified physiatrist,
indicated that electrodiagnostic findings were indicative of C6-7 root irritation with no evidence
of peripheral entrapment neuropathy. In a report dated March 26, 2007, he indicated that he
administered an epidural steroid injection that day at L5-S1. The Office also received a May 7,
2007 report from a mental health therapist.
In an undated letter, appellant listed her medications and contended that nothing
alleviated the pain in her low back and neck.
By decision dated June 19, 2007, the Office hearing representative affirmed in part the
December 1, 2006 decision which terminated appellant’s compensation for wage loss. The
Office hearing representative found that the medical evidence did not establish that appellant had
recovered from the accepted condition and vacated that portion of the Office’s December 1, 2006
decision which terminated her entitlement to medical benefits. The Office hearing representative
directed the Office to refer appellant for a second opinion examination to determine whether she
continued to have a medical condition causally related to the May 21, 2004 injury.3
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
2

During the hearing appellant alleged that she was sent to Dr. Sutter by the employing establishment.
Subsequent to the hearing the Office received additional documents. They included court documents in which
appellant pled guilty to a charge of theft from the employing establishment in the amount of less than $300.00
between December 1, 2005 and January 31, 2006. Appellant entered the plea on April 3, 2007 and was fined and
placed on probation for one year and ordered to perform 40 hours of public service. The employing establishment
also provided a notification of personnel action dated March 7, 2006 indicating that appellant was removed that date
for failure to register proper cash register sales transaction on nine days between December 7 and 19, 2005 and
failure to follow instructions.
3

Any matters pertaining to the further development directed by the hearing representative are not before the
Board on the present appeal as the record contains no final decision of the Office on any such matter prior to the
filing of the present appeal on October 9, 2007. See 20 C.F.R. § 501.2(c).
4

Curtis Hall, 45 ECAB 316 (1994).

4

without establishing either that the disability has ceased or that it is no longer related to the
employment.5
ANALYSIS -- ISSUE 1
The Board finds that the weight of the medical evidence is represented by Dr. Sutter,
Board-certified in family medicine, who submitted a well-rationalized opinion based upon a
complete and accurate factual and medical history.
In a June 13, 2006 report, Dr. Sutter noted appellant’s history of injury and treatment and
conducted a physical examination. He determined that appellant had full range of motion of the
cervical, thoracic and lumbosacral spines with mild tenderness in the lumbosacral area.
Dr. Sutter diagnosed chronic back pain with a history of degenerative disc disease of the
lumbosacral spine and opined that she could work with restrictions of no lifting over 25 pounds
and no twisting of the back. He also recommended a functional capacity evaluation. On
August 16, 2006 Dr. Sutter noted that appellant’s restrictions were appropriate and consistent
with her current job position. In a September 28, 2006 report, he diagnosed chronic back pain.
Dr. Sutter determined that appellant had an essentially normal examination of the lower
extremities and noted that she did not have findings on discogram or lumbar CT scan other than
degenerative changes. There was no evidence of spinal stenosis or foraminal stenosis. The
Board finds that his report supports that appellant was able to perform the duties of her date-ofinjury position.
The Board notes that appellant submitted reports from other attending physicians.
However, Dr. Harms, the only physician who opined that appellant was totally disabled and
unable to work, noted disability beginning January 8, 2006. He did not offer any opinion
regarding her ability to return to work on or after December 1, 2006. Dr. Harms also indicated in
several reports that appellant’s condition was caused by several nonaccepted conditions, such as
degenerative disc disease at L5-S1, peripheral neuropathy, arthritis or fibromyalgia.6 The Board
notes that appellant was paid compensation for total wage loss from March 18 to
December 1, 2006. Thereafter, Dr. Harms did not submit any reports explaining how appellant
was disabled on or after December 1, 2006 as a result of her accepted condition, such that she
was unable to work. The record contains no other current medical evidence addressing whether
appellant’s accepted conditions of thoracic or lumbosacral neuritis or radiculitis caused any
continuing disability for work.
The Office properly accorded the weight of the evidence to Dr. Sutter. The Board finds
that Dr. Sutter’s reports establish that appellant had no work-related disability on or after
December 1, 2006, thereby supporting the Office’s December 1, 2006 termination of her wageloss compensation
5

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

6

The Office accepted appellant’s claim for thoracic or lumbosacral neuritis or radiculitis. See Jaja K. Asaramo,
55 ECAB 200 (2004) (where an employee claims that a condition not accepted or approved by the Office 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).

5

LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.7
The medical evidence required to establish a causal relationship is 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.8
ANALYSIS -- ISSUE 2
Following the termination of compensation, appellant submitted additional medical
evidence. In an October 3, 2006 report, Dr. Li diagnosed chronic neck and low back pain and
cervical and lumbar spondylosis. In reports dated March 22 and 26, 2007, Dr. Sunkavally noted
that appellant had C6-7 root irritation with no evidence of peripheral entrapment neuropathy.
However, these records do not address whether appellant’s work-related condition caused any
disability for work on or after December 1, 2006. The Board has long held that 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
The Office received a diagnostic report from Dr. Barkmeier who determined that
appellant had degenerative disc disease at L4-5 and L5-Sl with a negative provocative test at
L4-5 and L5-S1. However, this report merely reported findings and did not contain an opinion
regarding the cause of the reported condition or disability. The Office also received a May 7,
2007 report from a mental health therapist. However, a mental health therapist is not considered
a physician for the purposes of the Act.10
None of appellant’s physicians provided sufficient medical rationale explaining how and
why the accepted conditions of thoracic or lumbosacral neuritis or radiculitis caused or
contributed to her disability for work after December 1, 2006. Thereafter, appellant has failed to
meet her burden of proof.

7

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

8

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

9

Michael Smith, 50 ECAB 313 (1999).

10

See Bradford L. Sutherland, 33 ECAB 1568 (1982).

6

CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation benefits effective December 1, 2006. The Board finds that appellant did not
meet her burden of proof to establish that she was disabled on or after December 1, 2006
causally related to her May 21, 2004 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2007 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: June 6, 2008
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF DEFENSE,
Fort Benning, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2505
Issued: July 24, 2009

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 September 22, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 27, 2008 reducing his compensation
based on his wage-earning capacity. Pursuant to 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 the Office properly reduced appellant’s compensation on the
grounds that the selected position of security guard/merchant patroller represented his wageearning capacity.
FACTUAL HISTORY
On March 12, 2003 appellant, then a 54-year-old custodian, filed a traumatic injury claim
alleging that he sustained back and knee injuries on March 4, 2003 when he was “cleaning out
under the stage.” The Office accepted a lumbar strain, posterior cruciate ligament sprain left

knee, and left medial meniscus tear. Appellant stopped working on August 28, 2003. He
underwent left knee arthroscopic surgery on December 10, 2003.
A functional capacity evaluation (FCE) on March 15, 2004 indicated that appellant could
work eight hours at a sedentary physical demand level. He was referred for vocational
rehabilitation services in September 2004.
In a report dated August 22, 2005, Dr. Gary Dawson, a physiatrist, indicated that
appellant continued to have low back pain. He diagnosed lumbar osteoarthritis and degeneration
of lumbar disc. Appellant received intermittent treatment from Dr. Dawson for his lumbar spine.
On May 9, 2006 Dr. Dawson indicated that appellant had intermittent back pain with exercise.
In a work capacity evaluation (OWCP-5c) dated May 31, 2006, he advised that appellant could
work eight hours a day with restrictions. Dr. Dawson limited appellant to two to four hours of
standing, one hour twisting, a half hour of 50-pound pushing or pulling and a half hour of lifting
at 25 pounds. In a June 5, 2006 report, he indicated that appellant’s back was unchanged.
The rehabilitation counselor identified the position of security guard/merchant patroller
(Dictionary of Occupational Titles No. 372.667-038) and completed a Form CA-66 job
classification. The job duties included patrolling assigned areas, touring buildings, inspecting
doors, windows and burglar alarms, and standing guard during counting of cash receipts. The
job was considered a light strength level with occasional lifting of 20 pounds. The rehabilitation
counselor indicated that appellant had the specific vocational preparation for the job, based on
his eight years of military service with firearms and security training, and reported the job was
reasonably available in appellant’s commuting area.
In a May 21, 2007 memorandum, a
rehabilitation specialist indicated that wages for the selected position were $7.64 to $11.77 per
hour. The specialist also confirmed that the security guard/merchant patroller position was
reasonably available in appellant’s community area, based on state employment data.
By letter dated June 27, 2007, the Office advised appellant that it proposed to reduce his
compensation on the grounds that he had the capacity to earn wages as a security guard at
$305.60 per week. Appellant was advised he could submit additional evidence or argument on
the issue within 30 days. He did not respond
In a decision dated August 3, 2007, the Office reduced appellant’s compensation pursuant
to 5 U.S.C. § 8115. It found that the current pay rate for the date-of-injury job was $457.08 per
week, and appellant was capable of earning $305.60 per week, for a wage-earning capacity of 67
percent. Appellant’s net compensation was reduced to $433.00 every 28 days.
On August 30, 2007 appellant requested a hearing before an Office hearing
representative. A telephonic hearing was held on December 17, 2007. Appellant submitted an
October 23, 2007 report from Dr. Dawson, who indicated that appellant had not been seen in 16
months. Dr. Dawson indicated that a magnetic resonance imaging (MRI) scan showed a
generalized disc bulge at L5-S1, and facet arthropathy with mild stenosis at L3-5. He stated that
it was likely appellant was not “physically suitable for any type of work at this time.” In a
February 6, 2008 note, Dr. Dawson reiterated that appellant had degenerative lumbar
osteoarthritis. On October 23, 2007 appellant was not capable of working due to his being
referred for possible surgical intervention for his lumbar condition.

2

By decision dated February 27, 2008, the hearing representative affirmed the reduction of
compensation. The hearing representative also found the evidence was sufficient to require
further development on the issue of whether a modification of the wage-earning capacity
determination was warranted.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.1
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and reasonably
represent wage-earning capacity, or if the employee has no actual earnings, his wage-earning
capacity is determined with due regard to the nature of his injury, his degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment, and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.2
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.3 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.4
ANALYSIS
The Office selected the position of security guard/merchant patroller (DOT #372.662038), and found that it was suitable to appellant’s capabilities with regard to his physical
limitations, education, age and prior experience. With respect to physical limitations, the
attending orthopedic surgeon, Dr. Dawson, provided an OWCP-5c dated May 31, 2006, with a
limitation on standing of two to four hours, one hour twisting and a 25-pound lifting restriction.
He did not provide any restriction on walking or sitting. The selected position is primarily a
walking position that involves patrolling and inspecting buildings. The May 31, 2006 form
report or the contemporaneous narrative reports from Dr. Dawson establish that appellant could
1

Carla Letcher, 46 ECAB 452 (1995).

2

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

3

See Dennis D. Owen, 44 ECAB 475 (1993).

4

5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

3

perform the duties of the selected position. Appellant had notice and an opportunity prior to the
August 3, 2007 decision to submit relevant medical evidence on the issue, but no evidence was
submitted. The Board finds that the selected position was within his physical limitations based
on the evidence of record.5
With respect to the vocational preparation for the position, the rehabilitation counselor
found that appellant’s military experience was sufficient vocational preparation, and no contrary
evidence was submitted. The availability of the position in appellant’s commuting area was
confirmed by the rehabilitation specialist. The wage information indicated the entry level wages
were $7.64 per hour or $305.60 per week. Applying the Shadrick principles, the current pay rate
for the date-of-injury position is compared with the wage-earning capacity of $305.60 per week,
and a percentage of the loss of wage-earning capacity is determined. The Office determined that
appellant had a 33 percent loss of wage-earning capacity and his compensation was reduced to a
net compensation of $433.00 every 28 days. The Board finds that the Office met its burden of
proof to reduce appellant’s compensation in this case.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation pursuant to 5
U.S.C. § 8115(a).

5

As noted, the case is under further development regarding evidence submitted after the August 3, 2007 decision.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 27, 2008 is affirmed.
Issued: July 24, 2009
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


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1184
Issued: April 6, 2010

Case Submitted on the Record

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

JURISDICTION
On April 1, 2009 appellant filed an appeal from a schedule award decision of the Office
of Workers’ Compensation Programs dated March 12, 2009. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than 18 percent permanent impairment of the
penis for which he received a schedule award.
FACTUAL HISTORY
On April 19, 2004 appellant, then a 34-year-old letter carrier, filed a claim alleging that
on April 17, 2004 he pulled a hamper of magazines and injured his low back. The Office
accepted appellant’s claim for lumbar strain, lumbar disc protrusion and later expanded the claim
to include retrograde ejaculation. It authorized an L5-S1 microdiscectomy which was performed
on March 14, 2005, an anterior total disc replacement of L5-S1 which was performed on
October 11, 2005 and an excisional biopsy of a skin lesion which was performed on

June 20, 2007. Appellant did not stop work but returned to a light-duty position. Appropriate
compensation benefits were paid.
Appellant was initially treated by Dr. Forrest Burke, a Board-certified orthopedist, from
April 17 to December 6, 2004, for back pain radiating into his left leg which developed after he
lifted a mail hamper at work. Dr. Burke diagnosed discogenic low back pain and recommended
epidural steroid injections. Magnetic resonance imaging (MRI) scans of the lumbar spine dated
May 26, 2004 and February 16, 2005 revealed left paracentral disc protrusion at L5-S1.
Appellant came under the treatment of Dr. James R. Rappaport, a Board-certified
orthopedist, from December 10, 2004 to October 11, 2005, for treatment of back pain and left leg
weakness that occurred after a work-related lifting incident. Dr. Rappaport diagnosed L5-S1
disc herniation with left S1 radiculitis versus radiculopathy and L5-S1 spondylosis with mild
discogenic low back pain. On March 14, 2005 he performed a microscopic laminotomy,
foraminotomy and discectomy at left L5-S1 and diagnosed herniated lumbar disc, lumbar
radiculitis and low back pain. Dr. Rappaport noted that appellant continued to have discogenic
low back pain at L5-S1 and left lumbar radiculitis and recommended a total disc replacement.
On October 11, 2005 he performed a total disc replacement at L5-S1 and diagnosed internal disc
derangement at L5-S1 and chronic low back pain. In reports dated December 21, 2005 and
March 22, 2006, Dr. Rappaport noted appellant’s complaints of symptoms consistent with
retrograde ejaculation which was a possible side effect of the surgery. He returned appellant to
work on December 26, 2006 and noted that he reached maximum medical improvement on
March 22, 2006. On June 20, 2006 Dr. Rappaport performed an excisional biopsy of the skin
lesion at the site of the surgery.
On January 18, 2007 appellant filed a claim for a schedule award and the Office began
developing whether appellant had permanent impairment of the penis.1
Appellant submitted an April 2, 2007 report from Dr. Rappaport who diagnosed
retrograde ejaculation and noted that this condition was a known complication of a total disc
replacement. Dr. Rappaport opined that the diagnosed retrograde ejaculation was causally
related to appellant’s work injury and noted that there was no treatment.
On November 21, 2007 the Office referred appellant for a second opinion to Dr. Angelo
Trabucco, a Board-certified urologist, for a determination of whether appellant had residuals of
his accepted conditions and whether he had permanent impairment attributable to his accepted
conditions.
In an December 4, 2007 report, Dr. Trabucco noted a history of appellant’s work-related
condition and treatment. He noted examination findings of a normal urethra, the testes were
bilaterally descended with no masses, there was bogginess and tenderness of the prostate
consistent with prostatitis and a urinalysis revealed trace red blood cells. Dr. Trabucco
diagnosed prostatitis and opined that this condition might be contributing to appellant’s
1

On January 18, 2007 appellant also filed a schedule award claim for impairment to the lower extremities. On
March 12, 2009 the Office granted him a schedule award for three percent permanent impairment of the left leg.
Appellant appealed this decision to the Board. It is proceeding separately to adjudication under appeal No. 10-1021.

2

retrograde ejaculation. In a follow-up examination dated January 22, 2008, he opined that
appellant’s retrograde ejaculation was most likely related to his chronic infection of the prostate
which could be confirmed with a course of antibiotic therapy and postejaculatory urine analysis.
He indicated appellant’s subjective symptoms of retrograde ejaculation could be due to the L5S1 spinal surgery but that his condition was complicated by the presence of a chronic prostate
infection. Dr. Trabucco recommended a postejaculatory urine analysis to confirm the cause of
the retrograde ejaculation.
Appellant began seeing Dr. Trabucco, as his treating physician. In June 9 and
September 3, 2008 Dr. Trabucco noted postejaculatory sperm in the urine confirming retrograde
ejaculation. He further advised that appellant’s subjective symptoms were improved with
Sudafed. Dr. Trabucco opined that the diagnosed retrograde ejaculation was the result of the
spinal surgery. On September 3, 2008 he advised that the prostatitis had resolved and the
retrograde ejaculation was reversible with Sudafed.
In a letter to Dr. Trabucco dated November 28, 2008, the Office requested Dr. Trabucco
provide an impairment rating for appellant’s accepted retrograde ejaculation under the American
Medical Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides). In
a January 22, 2009 report, Dr. Trabucco noted that appellant had a neurological injury from his
spinal surgery that occurred on October 11, 2005 after sustaining a work-related injury on
March 17, 2004. He advised that the neurological injury resulted in objective evidence of
retrograde ejaculation as demonstrated by post void ejaculation urine cytology. Dr. Trabucco
noted that appellant was not sterile and could father children with the aid of pharmacotherapy.
He diagnosed retrograde ejaculation and opined that maximum medical improvement was
reached on September 3, 2008. Dr. Trabucco noted that there was no evidence appellant had
pain or functional loss of the penis either erectile dysfunction or symmetry dysfunction and
discharged appellant from his care.
The Office medical adviser reviewed Dr. Trabucco’s January 22, 2009 report and noted
that appellant did not have pain of the penis, erectile dysfunction or urethral impairment but had
evidence of retrograde ejaculation. The medical adviser opined that pursuant to Table 7-5 on
page 156 of the A.M.A., Guides3 appellant would be considered Class 1, which corresponded to
a five percent whole person impairment of the penis.4 Using the ratio provided by the Office’s
procedures, he calculated that appellant sustained an 18 percent permanent impairment of the
penis.5 He further noted the date of maximum medical improvement was September 3, 2008.

2

A.M.A., Guides (5th ed. 2001).

3

Id. at 156, Table 7-5.

4

The medical adviser likewise indicated that appellant’s condition represented a Class 1 impairment, one to nine
percent whole person impairment, under Table 13-21, Criteria for Rating Neurologic Sexual Impairment. Id. at 342.
5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.(c)(2)(a)
(August 2002).

3

On March 12, 2009 the Office granted appellant a schedule award for 18 percent
impairment for the penis.
The period of the award was from May 19, 2007 to
September 3, 2008.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 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. However, the Act 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.8
Office procedures provide a formula to measure the percentage of impairment of an
organ when the whole person impairment is provided. The whole person impairment of the
claimant, identified as A, is divided by B, the maximum impairment of the organ, which equals
X, the impairment rating, divided by 100. For organs such as the penis, which have more than
one physiologic function, the A.M.A., Guides provide whole person impairment levels for each
function. When calculating the impairment of these organs, the Office medical adviser must
consider all functions as instructed in the A.M.A., Guides. In these cases, the maximum whole
person impairment ascribed to the particular organ (B) is obtained by combining the maximum
levels for all functions using the Combined Values Chart in the current edition of the A.M.A.,
Guides. The actual whole person impairment (A) is obtained by combining all functional
impairments found using the Combined Values Chart in the A.M.A., Guides.9
ANALYSIS
The Office accepted that appellant sustained a lumbar strain, lumbar disc protrusion and
later expanded the claim to include retrograde ejaculation due to his April 17, 2004 employment
injury. Appellant underwent an L5-S1 microdiscectomy on March 14, 2005 and an anterior total
disc replacement of L5-S1 on October 11, 2005. He filed a claim for a schedule award. The
Office determined that appellant was entitled to a schedule award for 18 percent permanent
impairment of the penis.
The Board finds that appellant has no more than 18 percent permanent impairment of the
penis. Appellant submitted an April 2, 2007 report from Dr. Rappaport who diagnosed
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

8

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.(c)(2)(a)
(August 2002).

4

retrograde ejaculation and opined that this condition was a known complication of a total disc
replacement and was causally related to his industrial injury and subsequent treatment including
surgery. He was also seen by Dr. Trabucco regarding the cause of any sexual dysfunction and
the extent of any impairment. In reports dated December 4, 2007 to January 22, 2009,
Dr. Trabucco noted that appellant sustained a neurologic injury from his spinal surgery on
October 11, 2005. He advised that the neurologic injury resulted in objective evidence of
retrograde ejaculation as demonstrated by post void ejaculation urine cytology. Dr. Trabucco
noted maximum medical improvement was reached on September 3, 2008 and noted that the
diagnosed retrograde ejaculation was permanent but reversible with medication. He noted that
there was no pain and no evidence appellant had functional loss of the penis either erectile
dysfunction or symmetry dysfunction.
In a February 16, 2009 report, the Office medical adviser reviewed Dr. Trabucco’s
January 22, 2009 report and noted appellant did not suffer pain of the penis, erective dysfunction
or urethral impairment but had evidence of retrograde ejaculation. He opined that appellant
would be considered Class 1 under Table 7-5, identified as sexual function possible but with
varying degrees of difficulty of erection, ejaculation or sensation.10 The Office medical adviser
noted that based on findings in the record appellant was at the mean impairment level within
Class 1 or 5 percent whole person impairment. He noted that there was no objective urethral
impairment pursuant to Table 7-5 on page 156 of the A.M.A., Guides.11 The Office medical
adviser converted this whole person impairment into impairment of the penis12 pursuant to
Office procedures.13 Utilizing the ratio provided in the procedure manual, he found that the
5 percent whole person impairment divided by the 28 percent maximum whole person
impairment for the penis14 equaled .1785 divided by 100, or a 17.8 percent permanent
impairment of the penis, which he properly rounded up to 18 percent penile impairment.15 The
Office medical adviser further found that the date of maximum medical improvement would be
September 3, 2008. This evaluation conforms to the A.M.A., Guides and establishes that
appellant has no more than 18 percent impairment of the penis.
The Board finds that, under the A.M.A., Guides, appellant has no more than 18 percent
permanent impairment of the penis.
10

A.M.A. Guides 156, Table 7-5.

11

Id.

12

See N.D., 59 ECAB ___ (Docket No. 07-1981, issued February 1, 2008) (the Act does not authorize schedule
awards for permanent impairment of the whole person).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.(c)(2)(a)
(August 2002).
14

Fifteen percent for sexual function combined with 15 percent for urethral functions. See id. The Combined
Values Chart is at page 604 of the A.M.A., Guides.
15

Id.; see also B.C., 58 ECAB 111 (2006) (Office procedures note that for organs such as the penis, which have
more than one physiologic function, the A.M.A., Guides provide whole person impairment levels for each function;
when calculating the impairment of these organs, the Office medical adviser must consider all functions as
instructed in the A.M.A., Guides.)

5

On appeal, appellant asserts that he was entitled to a greater impairment than the
18 percent permanent impairment of penis granted by the Office. He indicated that he has had a
decreased sex drive since his back surgery, decreased sensitivity during sexual intercourse,
inability to ejaculate normally since his back surgery and occasional erectile dysfunction. The
Board notes that the Office evaluated Dr. Trabucco’s findings and applied them to the A.M.A.,
Guides. As discussed above, the standards used by the Office to determine permanent
impairment for schedule award purposes provides for an 18 percent permanent impairment for
the accepted retrograde ejaculation. There was no additional evidence which supports that
appellant was entitled to a greater award than that which was granted by the Office.
CONCLUSION
The Board finds that appellant has no more than 18 percent permanent impairment of his
penis for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 12, 2009 is affirmed.
Issued: April 6, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.H., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CROW/NORTHERN CHEYENNE
INDIAN HEALTH SERVICE,
Crow Agency, MT, Employer
__________________________________________

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

Docket No. 14-682
Issued: August 20, 2014

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 6, 2014 appellant filed a timely appeal from the September 5, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained a traumatic injury in the performance of duty on
October 20, 2012, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2012 appellant, a 53-year-old public health nurse, filed a traumatic injury
claim alleging that she injured her right foot or ankle in the performance of duty on October 20,
2012 when she struck it hard against her chair: “I was sitting at my desk, entering Flu Clinic
Visits into computer October20, 2012 when I had to go to the bathroom. I had my foot elevated
with ice. As I swung my foot down, I hit the chair roller hard. I stood up and limped to the
bathroom.” She stated that she came back to her office, reapplied ice to the site and when she
completed her data entry, she limped to her car to drive home. Appellant then went to the
emergency room.
At the emergency room, the history of present illness was described as follows:
“53[-year-old female] with [history] of ‘tendinitis’ of [right] ankle. [Patient] states she has been
receiving steroid shots in ankle. [P]ain worse today. [Patient] denies ankle trauma. [N]o
swelling or bruising.” A physical examination of appellant’s right lower extremity revealed
tenderness of the Achilles tendon. She received a diagnosis of Achilles bursitis or tendinitis. A
radiology report that day noted that appellant had distal posterior tibia/fibula pain with no known
injury. “Hurt when pt stood up today.”
On November 12, 2012 appellant offered her medical provider the following history of
injury: “[Appellant] previously had medial heel pain, treated on 2 occasions by Dr. Wolf with
plantarflexion injection. She had this elevated and [on] ice and then stood up suddenly and [she]
everted her ankle. [Appellant] developed medial bruising and swelling.” She was diagnosed
with ankle sprain.
The history on January 8, 2013 stated that appellant had an episode where her ankle gave
way and she injured the ankle, with bruising and swelling medially.
In a decision dated April 5, 2013, OWCP denied appellant’s traumatic injury claim. It
found that there were discrepancies and contradictions in her statements and in the medical
evidence describing the traumatic incident of October 20, 2012.
Appellant requested a review of the written record by an OWCP hearing representative.
She indicated that she did not hit the desk prior to hitting the chair with her right ankle. “When I
stood up, my ankle was unable to support my weight.” Appellant explained that she did have her
leg elevated with ice due to plantar fasciitis, not ankle tendinitis.
In a decision dated September 5, 2013, the hearing representative affirmed the denial of
appellant’s injury claim. Noting the different histories of injury, the hearing representative found
that there was insufficient evidence that the October 20, 2012 incident occurred as alleged.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
2

5 U.S.C. § 8102(a).

2

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 manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
An employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.4
To establish that, an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case has
been established, such circumstances as late notification of injury, lack of confirmation of injury
and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on a
claimant’s statements. The employee has not met this burden when there are such inconsistencies
in the evidence as to cast serious doubt on the validity of the claim.5
ANALYSIS
When appellant went to the emergency room on October 20, 2012, after she drove home
from work, she told her medical providers that she had a history of right ankle tendinitis, for
which she had been receiving steroid shots. She advised that the pain was worse. Significantly,
appellant denied any ankle trauma. There was no swelling or bruising. A radiology report noted
pain with no known injury and indicated that it simply hurt when appellant stood up that day.
Two days later, appellant filed a traumatic injury claim for workers’ compensation
benefits. The history she provided on her claim form did not resemble the history she had given
the emergency room. Appellant described a right foot or ankle trauma that occurred when she
swung her foot down from an elevated position and hit the roller of her chair hard, causing her to
limp noticeably. She did not explain why she had denied any trauma or injury at the emergency
room.
The history changed again on November 12, 2012 when appellant advised that she stood
up suddenly and everted her ankle, which caused bruising and swelling. As noted earlier,
however, her examination in the emergency room revealed no bruising or swelling. There was
now no mention of striking appellant’s foot or ankle hard against the roller of her chair. On
January 8, 2013 she repeated that she injured her ankle when it gave way.
The inconsistency with which appellant has described the circumstances of her injury
casts serious doubt on the validity of her claim that she sustained a traumatic injury on October 20,
3

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

4

Caroline Thomas, 51 ECAB 451 (2000).

5

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).

3

2012 in the manner alleged. She has not satisfactorily reconciled the inconsistent accounts she
provided from October 10 to November 12, 2012. The Board finds that appellant has not met her
burden of proof to establish that she experienced a specific event, incident or exposure occurring
at the time, place and in the manner alleged. Accordingly, the Board will affirm OWCP’s
September 5, 2013 decision denying her claim of a traumatic work injury.
CONCLUSION
The Board finds that appellant has not met her burden to establish a traumatic injury in
the performance of duty on October 20, 2012, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2014
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
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Ana, CA, Employer
__________________________________________

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

Docket No. 19-1171
Issued: October 22, 2019

Case Submitted on the Record

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

JURISDICTION
On April 29, 2019 appellant filed a timely appeal from an April 4, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated February 9, 2018, 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 the case. 2
ISSUE
The issue is whether OWCP properly denied appellant’s March 6, 2019 request for an oral
hearing as untimely filed under 5 U.S.C. § 8124.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 4, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 3, 2018 appellant, then a 33-year-old tractor trailer operator, filed a traumatic
injury claim (Form CA-1) alleging that she sustained left hip, left flank, and left lower extremity
injuries on November 2, 2017 as a result of a motor vehicle collision while in the performance of
duty.
By development letter dated January 9, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish her traumatic injury claim. It noted that she had not
submitted evidence sufficient to establish that she actually experienced the employment factors
alleged to have caused her injury. OWCP advised appellant of the type of medical and factual
evidence needed and provided a questionnaire for her completion. It afforded her 30 days to
submit the necessary evidence.
In response, appellant provided chart notes and reviews of imaging studies dated from
November 4, 2017 through January 18, 2018 by Dr. Gary A. Linnemann, a Board-certified family
practitioner, noting appellant’s account of a November 2, 2017 motor vehicle collision in which a
private car struck the left front wheel and driver’s side door of her delivery truck. Dr. Linnemann
diagnosed a left knee contusion, left hip strain, left lower extremity contusion, lumbar strain,
lumbar pain, cervical paraspinal strain, and right rotator cuff strain caused by the November 2,
2017 employment incident. He prescribed physical therapy. Dr. Kahesha K. Franklin, a Boardcertified family practitioner, returned appellant to full duty effective January 22, 2018. Appellant
did not complete and submit the questionnaire provided.
By decision dated February 9, 2018, OWCP denied appellant’s claim, finding that she had
not submitted sufficient factual evidence to establish her claim. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
Following issuance of the February 9, 2018 decision, appellant submitted additional factual
and medical evidence.
On March 26, 2019 OWCP received appellant’s request for an oral hearing with a
representative of OWCP’s Branch of Hearings and Review. The request was dated March 5, 2019
and postmarked March 6, 2019.
By decision dated April 4, 2019, OWCP denied appellant’s request for an oral hearing. It
found that her request was not made within 30 days of OWCP’s February 9, 2018 decision. As
such, appellant was not entitled to a hearing as a matter of right. OWCP exercised its discretion
and determined that it would not grant a hearing for the reason that the issue in the case could
equally well be addressed by requesting reconsideration and submitting new evidence establishing
an employment-related injury.
LEGAL PRECEDENT
Section 8124 of FECA provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made within 30 days after issuance of an OWCP final decision. 3
3

5 U.S.C. § 8124(b)(1).

2

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.”4
Under section 10.616(a), “[a] claimant injured on or after July 4, 1966, who had received
a final adverse decision by the district OWCP may obtain a hearing by writing to the address
specified in the decision. 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.” 5
OWCP’s regulations further provide that a request received more than 30 days after
OWCP’s decision is subject to OWCP’s discretion6 and the Board has held that OWCP must
exercise this discretion when a hearing request is untimely. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s March 6, 2019 request for an oral
hearing as untimely filed under 5 U.S.C. § 8124.
Appellant requested an oral hearing and the request was postmarked March 6, 2019, which
was more than 30 days after OWCP’s February 9, 2018 decision.8 Section 8124(b)(1) is
unequivocal on the time limitation for requesting a hearing. 9 As such, the request was untimely
and appellant was not entitled to an oral hearing as a matter of right.
The Board further finds that OWCP, in its April 4, 2019 decision, properly exercised its
discretionary authority by noting that it had considered the matter and denied appellant’s request
for an oral hearing as her claim could be equally well addressed through a reconsideration
application.10
The Board has held that 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
4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

Id. at § 10.616(b).

7

J.G., Docket No. 19-0555 (issued March 14, 2019); D.W., Docket No. 17-1413 (issued December 18, 2018);
Samuel R. Johnson, 51 ECAB 612, 613-14 (2000).
8

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis of
the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is not legible, the request
will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
9

William F. Osborne, 46 ECAB 198 (1994).

10

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. See André Thyratron,
54 ECAB 257, 261 (2002).

3

from established facts. 11 Herein, the Board finds that the evidence of record does not show that
OWCP abused its discretion in connection with its denial of appellant’s request for an oral
hearing.12
On appeal appellant contends that she promptly reported the claimed injury to her
supervisor and submitted all documentation requested. However, these arguments pertain to the
merits of the claim, which are not before the Board on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s March 6, 2019 request for an oral
hearing as untimely under 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 22, 2019
Washington, DC

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

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

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

11

See Daniel J. Perea, 42 ECAB 214, 221 (1990).

12

J.G., supra note 7.

4